This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Filed May 20, 2008
Anoka County District Court
File No. 02-C1-05-010975
Randall D.B. Tigue, Randall Tigue Law Office, P.A., 810 Lilac Drive, #205, Golden
Valley, MN 55422 (for appellant)
James J. Kretsch, Jr., Kretsch & Associates, PLLC, 8500 Normandale Lake Boulevard,
Suite 960, Minneapolis, MN 55437 (for respondent)
Considered and decided by Connolly, Presiding Judge; Stoneburner, Judge; and
Appellant challenges the district court’s order denying his motion seeking to
forfeit respondent’s supersedeas bond.
Because the district court’s conclusion that
appellant did not prove that he incurred damages as a result of respondent’s appeal is not
clearly erroneous, we affirm.
Appellant Robert Metzler and respondent Robin Lanahan previously lived
together in appellant’s home. Following the end of their relationship, they reached a
court-approved settlement. This settlement addressed a number of topics, including the
occupancy of the residence appellant and respondent had shared.
settlement provided respondent with exclusive possession of the residence from
October 20, 2003 to October 20, 2005. Respondent was responsible for making the
monthly mortgage payments, less real-estate taxes and insurance. The payments were
made directly to the bank responsible for servicing the mortgage.
stipulated that appellant was responsible for paying the real-estate taxes and insurance.
At the end of the agreed-upon occupancy, respondent remained in appellant’s
house. Appellant filed an eviction action against her. On November 15, 2005, the case
was heard, and judgment was entered in appellant’s favor. Following an appeal by
respondent to this court, the district court continued its stay of the writ of recovery. The
continuance was conditioned on respondent’s ability to “post an appeal bond on or before
December 22, 2005 in the amount of $50,000.”
Respondent posted this bond and
remained in the house.1
At some point in time the home went into foreclosure. It was sold at a sheriff’s sale on
May 18, 2006.
On October 23, 2006, the district court issued an order increasing the supersedeas
bond. Respondent did not post the additional bond and lost possession of the house.
Appellant then filed a motion in district court seeking to recover the full amount of
respondent’s supersedeas bond, arguing that he incurred damages as a result of
respondent’s December 12, 2005 appeal. In an order dated March 21, 2007, the district
court denied appellant’s motion, finding that appellant had “not met his burden of proof
that he actually incurred the damages he seeks in this case.” This appeal follows.
“[A] court that approves a supersedeas bond to stay enforcement of a judgment
during an appeal has the inherent power to later assess actual damages incurred as a result
of the stay and may assess those damages on the motion of a party.” O’Leary v. Carefree
Living of Am. (Minnetonka), Inc., 655 N.W.2d 639, 643 (Minn. App. 2003). “The
amount of damages sustained by the prevailing party in consequence of the appeal must
be rationally related to the loss suffered . . . .” County of Blue Earth v. Wingen, 684
N.W.2d 919, 923 (Minn. App. 2004). “A district court’s findings of fact are reviewed for
clear error and will not be disturbed if they are supported by reasonable evidence.” Id.
The Minnesota Rules of Civil Appellate Procedure control a district court’s
authority to require a party to post a supersedeas bond. It provides:
If the appeal is from an order, the condition of the bond shall
be the payment of the costs of the appeal, the damages
sustained by the respondent in consequence of the appeal, and
the obedience to and satisfaction of the order or judgment
which the appellate court may give if the order or any part of
it is affirmed or if the appeal is dismissed.
Minn. R. Civ. App. P. 108.01, subd. 2.
Appellant argues that he suffered damages in the form of: (1) lost rent, (2) lost
equity, and (3) wrongful conversion of insurance proceeds. The district court found that
appellant failed to establish the “damages he seeks in this case.” Because this finding is
supported by the record, we affirm.
First, regarding lost rent, the record is devoid of any evidence as to what the rental
value of the property would be. Appellant apparently assumes that it would be equal to
the monthly mortgage payments that respondent made during her occupancy of the
However, the amount one is willing to pay to rent a property does not
necessarily correspond to the mortgage payment associated with that property. The
record is devoid of any evidence that appellant would even have been able to find a renter
for the home. Absent further evidence, we cannot say that the district court’s finding that
respondent did not establish lost rent is clearly erroneous.
Second, regarding lost equity, the district court found that appellant did “not give
this court any idea as to the amount of equity he claims to have lost.” The district court
stated that it did “not know the fair market value of the property” and did not “know the
amount of any encumbrance[s] against it.” As a result, it found that “[w]ithout more
certainty and exactness as required by Nelson v. Smith, this Court cannot award damages
for lost equity.”2 This finding accurately states the record. In terms of the home’s value,
the record contains only a lone, outdated appraisal by a realtor. There is no other
evidence that establishes the property’s value.
There is no evidence about what
encumbrances might have existed against the property. Absent more definitive evidence
about the value of the home, and the claims against it, the district court did not err in its
refusal to award damages for lost equity.
Third, regarding wrongful conversion of insurance proceeds,3 appellant claims that
respondent fraudulently cancelled an insurance policy on the home and had it reissued in
her name. The district court stated that “it does not appear [appellant] has any claim to
these insurance proceeds” because “[h]e did not purchase this policy and thus had no
contractual relationship with the insurer.” It concluded with the observation that “[i]f
there was a conversion of the insurance proceeds, this would be an issue between the
insurance company and [respondent].”
The district court’s finding on this point is
supported by evidence in the record. The record lacks sufficient evidence of fraud by
Appellant can only point to the affidavit of one insurance manager in
support of his argument, and this affidavit is ambiguous on the point of whether
respondent actually committed any fraud. Moreover, whether respondent committed
fraud on the insurance company that issued the policy or the bank that serviced the
See Nelson v. Smith, 349 N.W.2d 849, 854 (Minn. App. 1984) (holding that lost profits
“may be recovered where they are shown to be the natural and probable consequences of
the act or omission complained of and their amount is shown with a reasonable degree of
certainty and exactness” (quotation omitted)), review denied (Minn. July 26, 1984).
In September of 2005, the home was damaged by a tornado. The proceeds in question
stem from this incident.
mortgage are issues that are best resolved between respondent and the insurance company