may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Best Recycling & Disposal, Inc.,
Filed April 20, 1999
Itasca County District Court
File No. C29620
Kent E. Nyberg, Kent E. Nyberg Law Office, Ltd., 20 Northeast Fourth Street, Suite 101, Grand Rapids, MN 55744 (for appellant)
John H. Bray, Clure, Eaton, Butler, Michelson, Ferguson & Munger, P.A., 222 West Superior Street, Suite 200, Duluth, MN 55802 (for respondent).
Considered and decided by Peterson, Presiding Judge, Halbrooks, Judge, and Huspeni, Judge.[*]
In this appeal from a judgment and from an order denying his motion for amended findings, appellant David Allison (Allison) argues that the trial court erred in finding that respondent Best Recycling & Disposal, Inc. (Best Recycling) had no contractual obligation to assume the debt that a third party owed to Allison. We affirm.
After making regular payments through December 1994, Deer River began to experience financial difficulties and filed for Chapter 7 bankruptcy. In January 1995, Deer River's tangible property was repossessed by Itasca State Bank and sold to Best Recycling. Allison met with the president of Best Recycling, Thomas Schlotec, to discuss Deer River's obligations to Allison under the sale contract. Best Recycling made payments of $849.30 to Allison through June 1995, but then reduced its monthly payments to $400. In November 1995, Best Recycling stopped making payments to Allison.
Allison brought suit against Best Recycling, alleging that it had assumed the debt obligation of Deer River and demanding payment of the total amount due under the contract. Allison contended that although there was no written agreement between the parties, Best Recycling, through its president Thomas Schlotec, orally agreed to assume Deer River's debt and to continue making payments to Allison in exchange for him not reentering the waste hauling business. Best Recycling contended that it never promised to assume Deer River's debt, but merely promised to make a few monthly payments until Allison's interests could be determined.
Following a bench trial, the court concluded that Allison failed to prove by a preponderance of the evidence that: (1) Best Recycling promised to assume Deer River's debt to Allison; and (2) even if Best Recycling did orally promise to assume Deer River's debt, Allison failed to demonstrate that Best Recycling received fresh consideration to support the oral contract.
Allison moved for amended findings of fact, arguing that the trial court's findings were not consistent with the evidence presented. The trial court denied the motion.
Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.
Minn. R. Civ. P. 52.01.
Allison argues that the trial court erred in finding that: (1) he failed to establish that Best Recycling orally agreed to assume Deer River's debt; and (2) the alleged oral contract was not supported by "fresh consideration." We disagree.
Allison testified that during his meeting with Schlotec, Schlotec indicated that it was his intention to assume Deer River's debt to Allison. Allison further testified that "[a]ll [he could] do is guess" that the issue of him not going into competition against Best Recycling was discussed as consideration for the agreement. Schlotec testified that Best Recycling did not promise to assume Deer River's debt.
Faced with this conflicting testimony, the trial court made a credibility determination with respect to the alleged oral promise and whether the alleged promise was supported by consideration. Credibility determinations are within the discretion of the trial court. Id. Because it was within the trial court's discretion to believe Schlotec's testimony, we cannot conclude that the trial court was "clearly erroneous" when it found that Best Recycling did not promise to assume Deer River's debt to Allison in exchange for Allison's agreement to not reenter the refuse hauling business.
[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.