Susan A. Bator, Appellant, vs. Hallock Electric, et al., Respondents.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C7-03-189

 

Susan A. Bator,
Appellant,
 
vs.
 
Hallock Electric, et al.,
Respondents.

 

Filed September 30, 2003 Affirmed Wright, Judge

 

Kittson County District Court

File No. C500263

 

 

Susan A. Bator, P.O. Box 96, Lancaster, MN  56735 (pro se appellant)

 

Hallock Electric, 320 South Brayan Street, Hallock, MN  56728 (respondent)

 

            Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellant sued respondent in conciliation court seeking damages and relief from her obligation to pay for electrical work.  When appellant was denied relief, she appealed to the district court, which affirmed the judgment.  In an earlier appeal, we affirmed in part, reversed in part, and remanded for a new trial.  Bator v. Hallock Electric, et al., No. C4-01-1070, (Minn. App. Dec. 13, 2001) (order op.).  After a second trial, the district court again affirmed the conciliation court ruling.  In this appeal, among the arguments appellant raises are that the district court (1) erred by considering testimony that had been stricken from the record and (2) denied appellant a "full trial."  We affirm.

FACTS

 

            On July 28, 1999, respondent Hallock Electric performed electrical work at the home of appellant Susan Bator.  A dispute arose regarding the bill that resulted from this work.  Bator sued respondents Hallock Electric; its president, Gary Koop; and its accountant, Patricia Wilson Kerian, in conciliation court, alleging that Hallock Electric breached an oral agreement.  Bator claimed that her original bill was $1,017.79, and correspondence between the parties shows that Bator paid Hallock Electric $550.  Bator sought to be released from her obligation to pay her remaining debt of $467.79, alleging that Hallock Electric overcharged her.  In addition, Hallock Electric charged Bator finance charges that were not stated on the initial invoice.  Thus, the total amount Hallock Electric allegedly overcharged Bator consisted of (1) $231 for six hours of labor that was never performed, (2) $149.42 in "unfair finance charges," (3) "[t]ax of at least $10.00 off [the] bill," and (4) $77.37 for electrical materials.  Bator also claimed that employees of Hallock Electric sent her harassing mail, and she sought $7,500 in "civil damages, for [a]buse of a disabled person customer."

            Documents submitted to the conciliation court included an invoice from Hallock Electric for $868.37.  This bill included a charge of $462 for 12 hours of labor by a two-person crew billed at $38.50 per hour.  The conciliation court referee dismissed Bator's claim with prejudice and awarded her no damages.  Bator removed her case to district court, where the first trial was held on April 25, 2001. 

            At trial, Koop testified and explained the work performed and the bill Hallock Electric sent to Bator.  The district court affirmed the conciliation court ruling and dismissed Bator's claim with prejudice.  But the district court did not make findings regarding whether Bator was overcharged.  Bator appealed to this court, and we affirmed in part, reversed in part, and remanded for a new trial because the district court did not make findings on the disputed billing issue and Bator was "entitled to a trial de novo in district court on all issues that were before the conciliation court."  Bator v. Hallock Electric, et al., No. C4-01-1070, at 2 (Minn. App. Dec. 13, 2001).

On remand, the district court held a hearing on November 22, 2002, at which the parties were present and unrepresented by counsel.  The district court noted at the outset that the hearing was a "trial de novo on the limited issue of over billing," and clarified that "[t]his is not a trial on the entire issue again.  The earlier decision of the Court stands and has been affirmed by the Minnesota Court of Appeals." 

            After administering the oath to Koop, the district court began questioning Koop, who testified that two men employed by Hallock Electric put in 12 or 13 hours of work.  At that point, Bator objected to the order of the proceedings, asserting that she was entitled to make an opening statement.  The district court effectively sustained the objection and permitted Bator to make an opening statement.  Bator moved to strike Koop's testimony, which the district court granted.  On Bator's motion during her opening statement, the district court admitted into evidence the entire record of the proceedings of the first trial.  Bator argued that (1) she was not liable for the $149.42 in finance charges; (2) she was overcharged by six hours of labor billed at $38.50, equaling $231; (3) she was not obligated to pay a tax of $10; and (4) she was overcharged for electrical materials worth $77.37.  Following Bator's opening statement, Koop made a brief statement.  The district court then advised that Bator would be permitted to question Koop.  A colloquy ensued between Bator and the district court regarding whether Koop was under oath and whether his opening statement, in addition to his initial testimony, should be stricken.  The district court then adjourned the hearing without any further witness examination.

            In its November 26, 2002, order, the district court found that (1) Hallock Electric's "bill of $467.79 consists of six hours of work for two men each charging $38.50 per hour; plus, $77.30 for electrical supplies for a total of $467.79"; (2) Bator has not paid the bill; and (3) Bator's claim that Hallock Electric's workers were loitering and not working is without merit.  The district court concluded that Bator's "bill was not an over charge."  This appeal followed.

D E C I S I O N

 

            The district court's duty on remand is to execute the mandate of this court strictly according to its terms.  Halverson v. Vill. of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982).  Bator first argues that the district court relied on Koop's stricken testimony to make its findings.  A review of the record establishes that this argument is without merit.  The district court granted Bator's motion to include in the record of the hearing on remand both the conciliation court record and the testimony from the first trial before the district court.  As a part of the record, this body of evidence is available for the district court's consideration in resolving the disputed issue on remand.  The district court had ample testimonial evidence in the record to render its decision without relying on Koop's stricken testimony.  Further, at the second trial, Bator introduced documentation containing the figures used in the district court's subsequent findings.[1]  Accordingly, the district court's findings of fact are supported by the record.

            Bator also argues that she was denied a "full trial" because the district court prematurely concluded the November 22, 2002, hearing.  We disagree.  The case was remanded because the district court failed to rule on an issue raised by Bator.  The evidence at the first trial addressed the very issue that remained undecided; no additional evidence was necessary to resolve the issue.  The district court nevertheless convened the parties and was prepared to conduct a contested hearing on the matter.  The record establishes that the district court concluded the trial because appellant was not complying with the district court's order to proceed with the examination of the defendant.  After ruling on Bator's objection and explaining the basis for its ruling, the district court directed appellant to proceed with the examination.  Bator instead continued to argue the objection. 

Bator failed to comply with the district court's order to proceed following its evidentiary ruling.  A fully developed record on the same issue with the same witnesses from the earlier trial already existed.  In light of the circumstances, the district court's decision to conclude the hearing and proceed on the record developed at the conciliation court hearing and the first trial was not an abuse of discretion. 

Bator also raises several issues for the first time on appeal.  Bator asserts that     (1) she was entitled to a default judgment because respondents arrived late for the hearing, (2) the parties failed to enter into a signed, "binding" agreement, (3) the district court violated judicial standards, (4) the district court was not qualified to hear the case, and (5) the district court violated the equal-access provisions of the Americans with Disabilities Act.  Because Bator did not raise these issues before the district court, these issues are not properly before us, and we decline to review them.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that, generally, this court will not consider matters not argued and considered in the trial court). 

            Affirmed.

[1] Bator correctly argues that the district court incorrectly calculated the amount she owed.  When she commenced her lawsuit, Bator sought relief from any obligation to pay $467.79, which consisted of the $149.42 in finance charges, six hours of labor billed at $38.50, equaling $231.00, a tax of $10, and $77.37 in electrical materials.  In concluding that Bator's bill "was not an over charge," the district court apparently believed that Bator was disputing 12 hours of work, not 6.  Also, in an apparent typographical error, the district court mistakenly represented the amount of the electrical materials as $77.30, rather than $77.37.  Thus, as Bator notes, the district court's calculations should total $539.30 (12 hours of work billed at $38.50, equaling $462, plus $77.30), not $467.79.  This error, however, does not affect our ultimate decision because, although the district court did not use the correct figures in setting forth the calculation, it reached the correct total.  In sum, the parties disputed $467.79, and the district court resolved the dispute by requiring Bator to pay that amount, even though the equation was erroneously stated.