Leighton v. Rossow, No. A09-776 (Minn. App. 3/9/2010)
| Decision Date | 09 March 2010 |
| Docket Number | No. A09-776.,A09-776. |
| Parties | Jeff P. Leighton, Respondent, v. Rick Rossow, d/b/a Rick Rossow House Moving, Appellant. |
| Court | Minnesota Court of Appeals |
Appeal from the District Court, Meeker County, File No. 47-CV-08-167.
John R. Koch, Riechert, Wenner, Koch & Provinzino, St. Cloud, Minnesota (for respondent).
Frank J. Rajkowski, Rajkowski Hansmeier Ltd., St. Cloud, Minnesota (for appellant).
Considered and decided by Johnson, Presiding Judge; Stoneburner, Judge; and Huspeni, Judge.*
UNPUBLISHED OPINION
In a suit brought on a contract to move a house, Rick Rossow was awarded damages for some of the services he provided, but was found to have breached the contract and was also ordered to pay for damage to the house that occurred while it was in his possession. In this appeal, Rossow challenges (1) the denial of a continuance, (2) the district court's reliance on a bailment theory, (3) the failure to apportion fault for damage to the house, (4) the interpretation of the contract's price terms, and (5) the sufficiency of relief granted him for the services he performed. We affirm.
Jeff Leighton and Rick Rossow entered into a contract to move a house for Leighton in June 2006. The house was in Edina and Leighton wanted it moved to Saint Paul Park. The contract indicated a price of $12,500, additional expenses of $2,000 "to [r]un the [r]oute," and also contained a number of standard provisions dividing responsibilities between the parties.
At the end of June, Rossow lifted the house from the foundation in Edina in preparation for the move, but the house remained in that state for several months. By December, the City of Edina had issued an ultimatum that the house be moved or demolished. Leighton and Rossow discussed their options and, on December 7, Leighton paid Rossow $17,500, and they agreed that the house would be moved from Edina to Rossow's place of business in Eden Valley. On December 11, Rossow moved the house to Eden Valley, where it remained until March 2008. Ultimately the house was moved to Saint Paul Park by another house-mover hired by Leighton, to whom he also paid $17,500.
The house suffered water damage while sitting in Eden Valley. The cause of that damage is the gravamen of the litigation that resulted in this appeal.
In January 2008 while the house was still in Eden Valley, Leighton brought this action against Rossow, claiming that Rossow was wrongfully retaining the house and seeking recovery of it. Leighton also claimed that Rossow had breached the parties' contract and sought "damages due to deterioration of the house [while] it [was] on [Rossow's] land." In his answer and counterclaim, Rossow alleged that Leighton's "shoddy workmanship" caused the damage to the house, that Leighton had breached the contract and had failed to pay Rossow fees he (Rossow) had earned.
Both parties were initially represented by counsel. Discovery was completed and a bench trial was scheduled for February 9, 2009. On January 2, 2009 Rossow's counsel filed notice that he was withdrawing from representation. On February 2, Rossow wrote a note to the court stating that he could not afford to replace his attorney and needed more time. In a hand-written response at the bottom of Rossow's note, the court stated that if Leighton objected to the continuance it would be denied, unless Rossow set up a phone conference to discuss it. Leighton's attorney appeared to agree to a forty-five day continuance, but for reasons not apparent from the record, neither the court nor the parties discussed a continuance again. On the scheduled trial date, the court asked Rossow if he was ready to proceed without counsel. Rossow replied that he was.
Testimony of the parties at trial to the court was in sharp conflict. Regarding why the house remained in Edina for so many months, Rossow claimed that Leighton did not have the money to pay for the move and had not prepared the site in Saint Paul Park; Leighton testified that money was available, denied any delay in preparing the site, and claimed that delay was caused by Rossow's failure to secure an appropriate route for the move and by street work being done in Edina. Regarding why the house was not moved directly to Saint Paul Park, but instead to Eden Valley, Rossow testified that the site in Saint Paul Park was not prepared; Leighton testified that Rossow still had not found a suitable route.
Regarding why the house remained in Eden Valley for 15 months, Leighton testified that Rossow initially told him he had another big job and that he still had not run Leighton's route. Leighton testified further that he asked his excavator to prepare the site in Saint Paul Park; that the work there was completed in half a day; that Leighton continued to attempt to secure delivery of the house to Saint Paul Park, both on his own and through a lawyer; and that Rossow never did secure a route for the move. Rossow testified that, at first, he was waiting for Leighton to finish preparing the Saint Paul Park lot, and as time wore on that Leighton owed him more money under the contract, including a charge for storage in Eden Valley. Testimony also conflicted regarding whether the $17,500 Leighton paid Rossow in December 2006 obligated Rossow to move the house to Saint Paul Park, or whether Leighton owed Rossow more money to complete the move.
While testimony addressing why there were delays in moving the house and who was at fault for those delays conflicted strongly, perhaps the most difficult issue for the trial court to resolve concerned the cause of the water damage that occurred to the house while it was in Eden Valley. Leighton testified that in late November, 2006, before the move to Eden Valley, he removed the top part of the house's chimney and covered the roof opening with a sheet of plywood; he testified that he did not take further steps because Rossow assured him the move would be temporary. Leighton testified further that when the house was still in Eden Valley six months later, he observed that the plywood was no longer in place and he documented extensive damage. Rossow testified that Leighton had removed the entire chimney before the house was lifted off the foundation in June 2006, arguably implying that damage could have occurred before the move to Eden Valley. Rossow also testified that Leighton, after discovering the damage in June 2007, admitted to full responsibility for the failure to secure the hole in the roof, and that damage likely occurred after June 2007, when Leighton knew about the plywood and could have taken steps himself to secure the house from damage.
Upon completion of trial, the district court issued extensive findings, documenting the extended disagreements between the parties, discrediting Rossow's claims that delay in moving the house had been caused by Leighton's failure to prepare the Saint Paul Park lot, finding that the December 2007 contract was incomplete and ambiguous, concluding that Leighton "expected to pay $17,500 plus the costs of escorts and fees" to move the house, and concluding that Rossow breached the agreement by failing to move the house to its final destination. The district court also concluded that a bailor/bailee relationship existed when the house was moved to Eden Valley, and that Rossow was responsible for the water damage that occurred there. The district court awarded Leighton the $17,500 he had paid Rossow, less permit and escort fees, plus $13,755 for damage to the house. The district court also concluded that Leighton had breached the original contract by not paying Rossow when work commenced in June 2006. The district court offset Leighton's damages by $3,000 for the services Rossow performed then, when he first lifted the house off its foundation in Edina.
Rossow retained counsel after the judgment but no post-trial motions were filed. This appeal is from the judgment.
"[M]atters such as trial procedure, evidentiary rulings and jury instructions are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error." Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986). Absent a motion for new trial, review is limited to "whether the evidence sustains the findings of fact and whether such findings sustain the conclusion of law and the judgment." Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976). A new-trial motion is not required for appellate review of a "substantive question[] of law [that was] properly raised and considered in the district court." Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 311 (Minn. 2003) (). Questions of law are reviewed de novo. Id.
We turn first to the issue of Rossow's request for a continuance. As a threshold matter, we note that a continuance is procedural, and generally may only be reviewed if the party raised the issue in a post-trial motion. Sauter, 389 N.W.2d at 201. Rossow did not do so. But because we must be mindful as we address all issues raised by Rossow of how the lack of a continuance may have impacted those issues, and may also have impacted the absence of post-trial motions, we address the continuance issue in the interests of justice.
The record of Rossow's continuance request is not fully developed. Indeed, the documents offering evidence of the request are not part of the district court file, although Rossow has provided them on appeal, without objection from Leighton. He has provided a copy of the note he wrote to the district court asking for additional time and a copy of a letter from Leighton's attorney agreeing to a 45-day continuance. The record does not otherwise indicate why the trial was held...
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