Ness v. Ylvisaker

412 N.W.2d 769 (1987)

Patricia A. NESS, Respondent, v. Judith S. YLVISAKER, Appellant.

No. C1-87-726.

Court of Appeals of Minnesota.

September 29, 1987.

Patricia A. Ness, pro se.

Paul W. Chamberlain, Bigelow and Chamberlain, Wayzata, for appellant.

Considered and decided by POPOVICH, C.J., and WOZNIAK and NIERENGARTEN, JJ., with oral argument waived.

WOZNIAK, Judge.

In July 1980, the parties signed a purchase agreement under which appellant Ylvisaker and her husband agreed to sell their home to respondent Ness. Ylvisaker was to make certain repairs to the home, including repairs to the roof. The trial court found that the repairs were inadequate.

The parties closed on the house two months later, Ylvisaker and her husband conveying by warranty deed. No evidence of the warranty deed was introduced at trial.

During the ensuing five years, Ness experienced intermittent leaking and water damage to her house as a result of the inadequate roof repairs. She eventually had the defective roof repaired.

After judgment in conciliation court, the case was tried de novo in the district court, where Ness again received judgment. The trial court found that Ylvisaker had not spent the amount promised on the roof, and awarded Ness the difference between the amount Ylvisaker spent on the roof and the amount she promised to spend on the roof.

This appeal is from the trial court's denial of Ylvisaker's motion for a new trial or for amended findings of fact.

1. The denial of a motion for a new trial rests almost entirely within the discretion *770 of the trial court and will be reversed only for a clear abuse of discretion. Connolly v. Nicollet Hotel, 258 Minn. 405, 407, 104 N.W.2d 721, 724 (1960). We cannot say that the trial court abused its discretion where appellant raised new factual and legal arguments for the first time in her motion for a new trial.

2. Our review of factual findings of the trial court similarly is limited. Findings of fact will not be set aside unless clearly erroneous. Minn.R.Civ.P. 52.01; Murphy v. Country House, Inc., 349 N.W.2d 289, 293 (Minn.Ct.App.1984). We find that the court record contains sufficient evidence to uphold the trial court's factual findings.

3. In her brief to this court, appellant pleads a defense not raised in the trial court. Issues not presented to the trial court will not be heard for the first time on appeal. Ronyak v. Pangerl, 302 Minn. 556, 557, 225 N.W.2d 533, 533 (1975). We decline to address this issue.

Affirmed.