Daniel C. Blair, d/b/a Acrylic Creations, Appellant, vs. Pey Inc., d/b/a Pet Expo Distributors, et al., Respondents. CX-98-302, Court of Appeals Unpublished, October 27, 1998.

This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-98-302

Daniel C. Blair,

d/b/a Acrylic Creations,

Appellant,

vs.

Pey Inc.,

d/b/a Pet Expo Distributors, et al.,

Respondents.

Filed October 27, 1998

Affirmed

Toussaint, Chief Judge

Blue Earth County District Court

File No. C5961411

Brian R. Martens, Parsinen, Kaplan, Levy et al., Suite 1100, 100 South 5th Street, Minneapolis, MN 55402 (for appellant)

Kenneth R. White, Farrish, Johnson & Maschka, P.O. Box 550, Mankato, MN 56002-0550 (for respondent)

Considered and decided by Toussaint, Chief Judge, Anderson, Judge and Thoreen, Judge.^*

U N P U B L I S H E D O P I N I O N

TOUSSAINT, Chief Judge

In a mechanic's lien foreclosure action based on theories of contract and unjust enrichment, the district court awarded appellant Daniel C. Blair, a manufacturer of acrylic products, $25,717.05 but applied more than $18,000 in offsets for defects in his workmanship. The district court amended the judgment to correct some mathematical and typographical errors. Blair's motion for a new trial or amended findings was denied and he appealed from the judgment. Blair challenges the amount recoverable, the award of offsets for a goldfish unit and floor damage, and the court's failure to award attorney fees. Because there is substantial evidence in the record to support the district court's decision, we affirm.

D E C I S I O N

On appeal from a judgment in a case tried without a jury, our scope of review is limited to determining whether the district court's findings are clearly erroneous and whether it erred in its legal conclusions. Schweich v. Ziegler, Inc., 463 N.W.2d 722, 729 (Minn. 1990) (citation omitted); Foster v. Bergstrom, 515 N.W.2d 581, 585 (Minn. App. 1994). This court defers to the district court's findings of fact, and we will affirm its decision unless no evidence reasonably supports its decision or it is manifestly contrary to the evidence. Schweich, 463 N.W.2d at 729; see also Minn. R. Civ. P. 52.01.

Blair first argues that the district court erred in only awarding him $25,717.05, the amount shown on his final invoice. Blair claims that he is entitled to an additional $60,988.20 for his time and materials because respondent Thomas J. Yenish, failed to pay the final invoice on receipt. In support of his claims, Blair testified and offered time records. The district court correctly found this evidence inadequate for the additional amount claimed. The record supports the district court's conclusion as to the amount recoverable.

Blair also challenges the award of a $2,850 offset for the cost of replacing a goldfish unit, which he claimed worked during a court visit. There is no evidence in the record to support this claim. "An appellate court cannot base its decision on matters outside the record * * *." Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987) (citation omitted). Yenish's pending motion to strike these portions of Blair's brief is granted.

Blair further claims that testimony at trial established that the problems with the goldfish unit resulted from Yenish's failure to perform proper maintenance. There is substantial evidence in the record to support the district court's conclusion that the unit's problems stemmed from Blair's design and construction. Therefore, we affirm the $2,850 offset.

Finally, Blair challenges the district court's award of a $3,500 offset for damages and cleanup costs caused by system overflows. After reviewing the record, we conclude that the district court did not err in crediting Yenish's testimony as to the frequency and extent of the flooding.

II.

The decision to award attorney fees as part of mechanic's lien foreclosure costs lies within the district court's discretion. Asp v. O'Brien, 277 N.W.2d 382, 385 (Minn. 1979). Such awards should be made with caution so that property owners are not discouraged from challenging defects in the lien holder's workmanship. Id. This court will not reverse an award of attorney fees absent an abuse of discretion. Becker v. Alloy Hardfacing & Eng'g, 401 N.W.2d 655, 661 (Minn. 1987).

Although Blair sought more than $80,000, the district court determined that he failed to provide adequate time records and only awarded him $25,717.05. The district court also allowed an offset of more than $18,000 based on respondent's successful challenges to Blair's workmanship. As a result, Blair recovered just under $7,000, which is less than 10 percent of the amount sought. Accordingly, the district court did not abuse its discretion and properly declined to award attorney fees to either party. See Asp, 277 N.W.2d at 385 (declining to award full attorneys' fees in mechanics' lien foreclosure action where amount recovered was small in comparison to attorneys' fees and property owner limited recovery).

Affirmed.

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