This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Mike Hennen,


Hennen Dirt Works,



Concrete Curb, Inc.,


Filed March 17, 1998


Amundson, Judge

Dakota County District Court

File No. CO-96-9157

David S. Holman, 201 West Travelers Trail, Suite 225, Burnsville, MN 55337 (for respondent)

Stuart E. Gale, 210 Valley Office Park, 10800 Lyndale Avenue South, Bloomington, MN 55420 (for appellant)

Considered and decided by Short, Presiding Judge, Amundson, Judge, and Harten, Judge.



This claim arises out of an agreement between appellant contractor and respondent subcontractor, in which appellant agreed to pay respondent a prorated amount from monies recovered from a mechanics' lien settlement. Respondent was not paid any money from the settlement that resulted, and successfully sued appellant for his share. Appellant argues that the district court erred in its judgment. We affirm.


In July and August of 1989, appellant Concrete Curb, Inc., contracted to do curb work at the Brandondale Mobile Home Park (Brandondale). Respondent Mike Hennen of Hennen Dirt Works (Hennen) subcontracted with Concrete Curb to do excavation, grading, and sod work on the property. In 1989, Hennen was paid $3,500 as a progress payment from Concrete Curb. While working on the site, Hennen damaged a power line. Apparently because of this damage, Brandondale refused to pay Concrete Curb or any of Concrete Curb's subcontractors for work completed on the site.

Concrete Curb placed a mechanics' lien on Brandondale in the amount of $39,946.23, including $6,718 for work done by Hennen. Concrete Curb agreed to pay Hennen a prorated portion of any settlement or judgment arising from the lien. Hennen agreed to pay 16.82% of reasonable costs and attorney fees incurred by Concrete Curb in recovering payment. Ultimately, Concrete Curb received $7,766.67 from Brandondale, but did not pay Hennen. Hennen sued Concrete Curb for $8,800.58 plus interest, attorney fees, and costs. The district court awarded Hennen $6,718. This appeal followed.


A district court's finding of fact will not be set aside by this court unless it is clearly erroneous. Minn. R. Civ. P. 52.01. This court is not bound by the district court's legal determinations. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

I. Answer and Counterclaim

Concrete Curb asserts that the district court erred by finding that its answer to Hennen's complaint and its counterclaim were time-barred. Concrete Curb cites to one of the district court's legal conclusions, which states:

[Concrete Curb's] claim that [Hennen's] claims are barred by the Statute of Limitations is without merit, as [Hennen's] claim arose when [Concrete Curb] received the settlement check on December 5, 1991.

The district court did not find that Concrete Curb's answer and counterclaim were time-barred; rather, it concluded that Concrete Curb's argument based on the statute of limitation was without merit. The answer and counterclaim were rejected on the merits, not because of any lack of timeliness.

The answer and counterclaim made three essential points in support of Concrete Curb's contention that it is not required to pay Hennen anything. The district court concluded correctly that all were without merit. As the district court found in its memorandum, Concrete Curb failed to produce any reliable evidence to support the negligence claim. Concrete Curb also failed to produce adequate documentation to support the claimed attorney fees. Finally, the June 1, 1990 agreement between the parties specified the amount owed to Hennen and no additional reduction of amounts paid before that date is warranted.

II. Laches

Concrete Curb argues that Hennen's claim was time-barred by the doctrine of laches, because Hennen knew that Concrete Curb had received payment from Brandondale. The "ample evidence" cited by Concrete Curb would support the weakest of inferences to support such a statement. The fact that Hennen was aware of Concrete Curb's insolvency in 1994 does not establish knowledge that monies had been received from Brandondale or support a finding of laches.

III. Statute of Limitations

Concrete Curb argues that Hennen's claim is barred by the statute of limitations, as it is partially a contract action. The contract action, however, must be brought within six years. See Minn. Stat. § 541.05 subd. 1 (1) (1988). Because the date of the agreement between the parties was June 1, 1990, and because Hennen brought suit in August 1995, the suit was clearly brought within the statutory time limit.

IV. Concrete Curb's Insolvency

Concrete Curb argues that the finding that Concrete Curb was insolvent in 1989 is not supported by the evidence. The district court found that Concrete Curb was insolvent in 1989 based on evidence supplied by the Secretary of State, including the November 7, 1989, filing by Concrete Curb CEO Gilbert Strasburg of notice of intent to dissolve the corporation. The district court wrote in its memorandum:

Finally, on the matter of Concrete Curb's insolvency, Mr. Strasburg testified that they quit doing business in late 1989 and he could not recall their having any assets at that time. These facts, coupled with the fact that the settlement proceeds were applied in their entirety to corporate debt, lead to the inescapable conclusion that the business was either insolvent or on the verge of insolvency.

While the evidence pointing to Concrete Curb's 1989 insolvency is somewhat inferential, the finding is not clearly erroneous.

V. Net versus Gross

Concrete Curb argues that the district court erred by finding that Hennen's claim is for a net amount after payment, rather than a gross amount before payment. The district court's finding on this point is clear and elementary: the 1990 agreement between Concrete Curb and Hennen was drawn up after Concrete Curb had paid Hennen $3,500 in 1989, and outlined that Hennen was entitled to $6,718. The district court did not err

by concluding that Concrete Curb and Hennen intended that the $6,718 was a net amount after the $3,500 payment.




Judge Roland C. Amundson