This opinion will be unpublished and

May not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Shirley Smith,



Ward Ellingson, et al.,


Filed January 26, 1999


Halbrooks, Judge

Mower County District Court

File No. C496981

Brett A. Corson, Corson Law Offices, P.O. Box 65, Preston, MN 55965 (for respondent)

Christopher J. Bianco, Richard H. Bins, Bins Law Office, 201 Riverside Building, 400 South Broadway, Rochester, MN 55904-6498 (for appellants)

Considered and decided by Willis, Presiding Judge, Halbrooks, Judge, and Holtan, Judge.[*]



Appellants challenge the trial court's denial of their motion for a new trial after the trial court found appellants breached a contract for the sale of land. Because we find the trial court's verdict is supported by the evidence, we affirm.


In 1995, respondent Shirley Smith purchased a house and 12-acre parcel of land for $81,900 from appellants Ward and Diane Ellingson, who had owned the property for fourteen years. Respondent viewed the residence and property with her realtor in March, signed a purchase agreement on April 1, and closed the transaction on August 12, 1995. She moved onto the property on August 13, 1995.

The dispute centers on several defects unknown to respondent at the time of purchase. Two of these defects were not visible due to the snow cover in March and April -- an abandoned well in an area away from the house and ten truckloads of benzene-contaminated soil spread over plastic elsewhere on the property. A third unknown defect was debris and junk buried under what appeared to be mounds of dirt near the homestead. The fourth item of dispute was a non-functioning water heater in the homestead.

Appellants indicated on the real estate disclosure statement that they knew of no hazardous substance on the premises. Respondent subsequently discovered that ten truckloads of benzene-contaminated soil originating from a leaking fuel oil tank at appellants' service station had been deposited on top of black plastic on the property. Although the soil had been treated in accordance with Minnesota Pollution Control Agency regulations, appellants did not know whether or not the soil was still contaminated at the time of the sale. The MPCA later tested the soil at respondent's request and found it to be within MPCA guidelines. Nevertheless, respondent's realtor testified that he would have recommended that she not purchase the property if he had known of the contaminated soil and that he felt the value of the property was reduced approximately 20-25% by the presence of the soil, regardless of the level of contamination.

Pursuant to Minn. Stat. § 103I.235 (1996), appellants signed a well disclosure statement, indicating that the only well on the property was the one used for the house. Respondent later discovered an abandoned well, located in the middle of three pine trees that had been planted by appellants some distance behind the home. Respondent had the well filled by a cement company, at a cost of approximately $2,500.

The purchase agreement indicated that all appliances would be in working order on the date of closing. Respondent discovered that the hot water heater did not work when she tried to take a shower on the day she moved in. Respondent called a plumber, who determined that the water heater could not be fixed and installed a new heater for $350.

In the fall of 1995, respondent attempted to bulldoze some large mounds of dirt behind the house, only to discover farm implements, sheets of tin, bed springs, old car rims, an old gate, and other steel debris under the dirt. The debris had been placed there by appellants following their removal of old farm buildings. Appellants did not disclose the debris on the real estate disclosure statement. Respondent's brother, a contractor, quoted her a price of $1,800 to have the debris removed.

Respondent sued for breach of contract. The case was tried to the court; the district court order dated January 23, 1998, granted judgment to respondent in the amount of $21,270 plus costs and disbursements for the devaluation of the property due to the benzene-contaminated soil, testing the well water, replacing the hot water heater, the costs of removing the hidden debris, and respondent's reasonable attorney fees incurred pursuing the well claim. Appellants filed a motion for new trial or amended findings on February 20, 1998, and a hearing was held on March 6, 1998. The court denied the motion for a new trial by an order dated May 27, 1998. This appeal followed.


Appellants challenge the order filed May 27, 1998, denying their motion for a new trial. In an appeal from denial of a motion for a new trial, this court examines the evidence to determine if the verdict is "manifestly and palpably contrary to the evidence," viewed in the light most favorable to the verdict. ZumBerge v. Northern States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. Apr. 29, 1992). "Ordinarily, the decision to grant a new trial does lie within the sound discretion of the trial court and will not be disturbed absent a clear abuse of that discretion." Halla Nursery v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).

Appellants offer no proof that the verdict is "manifestly and palpably" contrary to evidence. Rather, they merely restate their position articulated at trial and assert that a "preponderance" of the evidence supports their position. There is nothing in the record to indicate that the court's verdict is contrary to the evidence save the fact that there is conflicting testimony. But where the evidence consists of conflicting testimony, the trial court's findings will not be disturbed absent unusual circumstances. Aesoph v. Golden, 367 N.W.2d 639, 641 (Minn. App. 1985). It is well established that due regard shall be given to the trial court's opportunity to evaluate the credibility of the witnesses before it. Minn. R. Civ. P. 52.01.

As to the contaminated soil, appellants offered no evidence to counter the testimony that the value of the land was decreased by 20-25% by the soil's presence and admitted they knew the contaminated soil existed, but they did not know the toxicity level of the soil on the date of sale. The evidence supports the trial court's finding on this issue.

There was conflicting testimony as to whether appellants knew there was an abandoned well on the property. The trial court found that appellants knew or should have known of its existence. Because there was testimony that appellants were involved in the destruction of outbuildings near the abandoned well and planted the trees that concealed it, this court cannot say that the evidence does not support this finding.

The trial court found that the plumber who installed the new water heater would not have done so if it was simply a case of having to connect the gas line or make minor repairs to the existing water heater. Again, the trial court's finding, which is founded on testimony given at trial, is not manifestly and palpably contrary to the evidence.

The trial court indicated that since appellants admitted they had placed the debris in that location after demolishing some outbuildings and then covered it with dirt, they were under an obligation to disclose its existence at the time of sale, so it could be adequately addressed in the contract. Again, there is evidence in the record to support this finding. The trial court's verdict is not manifestly and palpably contrary to the evidence.


[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.