Andrew Wurtzberger, Respondent, vs. Roger Heidelberger, Appellant, and Roger Heidelberger, Plaintiff, vs. Andrew Wurtzberger, Defendant.

Andrew Wurtzberger, Respondent, vs. Roger Heidelberger, Appellant, and Roger Heidelberger, Plaintiff, vs. Andrew Wurtzberger, Defendant. A05-2063, Court of Appeals Unpublished, September 12, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-2063

 

 

Andrew Wurtzberger,

Respondent,

 

vs.

 

Roger Heidelberger,

Appellant,

 

and

 

Roger Heidelberger,

Plaintiff,

 

vs.

 

Andrew Wurtzberger,

Defendant.

 

 

Filed September 12, 2006

Affirmed

Toussaint, Chief Judge

 

Crow Wing County District Court

File No. C8-03-1190

 

 

James W. Nelson, James W. Nelson Law Office, 510 Maple Street, Post Office Box 631, Brainerd, MN  56401 (for respondent)

 

Thomas C. Pearson, Erickson, Pearson & Aanes Law Offices, 319 South Sixth Street, Post Office Box 525, Brainerd, MN  56401 (for appellant)

 

            Considered and decided by Toussaint, Chief Judge; Halbrooks, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

            On appeal from a judgment and an order denying posttrial motions, Roger Heidelberger challenges the district court's decision that he breached provisions of a purchase agreement and owed respondent Andrew Wurtzberger damages.  Because the district court did not err when it determined that appellant breached the agreement and respondent had not waived its enforcement, did not clearly err in its findings of fact, and properly considered an issue tried by consent, we affirm.

D E C I S I O N

            Findings of fact by the district court during a bench trial will not be reversed unless clearly erroneous, and due regard must be given to the court's assessment of the credibility of witnesses.  Minn. R. Civ. P. 52.01.  Such findings are viewed in the light most favorable to the court's judgment and will be deemed clearly erroneous only if "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole."  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999) (citation omitted).  "If there is reasonable evidence to support the district court's findings," they will not be disturbed.  Id.  Questions of law are reviewed de novo.  A.J. Chromy Constr. Co. v. Commercial Mech. Servs., Inc., 260 N.W.2d 579, 582 (Minn. 1977).

I.

            Appellant challenges the district court's decision that he breached the purchase agreement by failing to remove all debris from the property and repair and seal the asphalt parking lot.  Appellant argues that respondent waived the right to enforce the provisions in the purchase agreement regarding removing debris and repairing and sealing the asphalt.

Waiver is defined as "a voluntary relinquishment of a known right."  Engstrom  v. Farmers & Bankers Life Ins. Co., 230 Minn. 308, 311, 41 N.W.2d 422, 424 (1950).  Waiver is largely a question of intention and may be inferred from acts and conduct.  Id. at 312, 41 N.W.2d at 424.  Whether a right was waived is ordinarily a question of fact.  Id.

            Appellant argues that respondent, who was aware of the condition of the property, waived his right to enforce the provision because he closed the transaction without requiring an escrow account to ensure that the debris would be removed and the asphalt would be repaired and sealed.  Appellant makes this argument even though he acknowledges that he adamantly refused the suggestion that funds be escrowed, except as to $1,000 to insure his obligation to paint the buildings.

            The district court did not accept appellant's argument of waiver.   Instead, the court found that at the time of the closing, appellant had not complied with the provisions.  The court further found that after the closing, respondent frequently spoke with appellant about these matters and that respondent repeatedly assured him that the tasks of debris removal and asphalt repair and sealing would be taken care of, although he never performed them fully.  These findings show that rather than waiving the provisions, respondent was vigorously attempting to enforce them.  The district court's findings are supported by the evidence and are not clearly erroneous, and appellant cannot prevail on his waiver argument.

II.

            Appellant challenges the district court's findings of fact regarding asphalt repair and sealing and the removal of debris.  The purchase agreement provides that:  "Seller will repair asphalt and seal it."  The district court found that by the date of the closing, appellant "had yet to repair and seal the asphalt other than to dump some asphalt mix into two holes in the paved parking lot."  The court further found that in response to respondent's frequent inquiries as to when these tasks would be completed, appellant repeatedly made assurances "that his son would take care of the asphalt repairs and sealing when the weather warmed up in the spring."  No further work was done.  Based on estimates that respondent obtained, the district court awarded him $1,475 for asphalt repair and $3,405 for asphalt sealing.  The evidence supports the district court's determination that appellant did not repair and seal the asphalt as promised in the purchase agreement, and this finding is not clearly erroneous.

            Next, the purchase agreement provides that: "Seller agrees to remove ALL DEBRIS AND ALL PERSONAL PROPERTY NOT INCLUDED HEREIN from the property by possession date."  The district court found that, at the time the purchase agreement was executed, there were many discarded tires, other debris associated with an auto-repair operation, and other rubbish.  The court found that although appellant repeatedly made assurances that he would remove the tires, he eventually removed only several large items on the property and did not remove the discarded tires and other rubbish.  Further, more than one year after closing, the county issued a cease-and-desist order requiring respondent to clean up the property.  During the cleanup, more tires and rubbish were discovered buried on the land.  The court awarded damages to respondent for the cost of the cleanup, which he had to perform to comply with the cease-and-desist order.

            Appellant asserts that there was substantial dispute as to the validity and nature of the expenses for the cleanup and contends that the district court's findings were erroneous, regardless of whether respondent had a viable claim for reimbursement. Although appellant admits that he may have left some tires and rims behind, he contends that there were no more than 100; that many could be attributed to respondent, who also admitted to accumulating used tires; and that neither respondent nor the realtor conducted a walk-though prior to the closing, so they could not verify how many tires and how much other debris were left behind.

            Respondent introduced extensive evidence to support his claim for $1,757.50 for tire disposal.  Photos and the receipts for the tire-disposal bill showed the quantity, type of tire or rim disposed of, and costs of disposal.  Respondent's son testified as to the debris found on the ground and buried underground, including the many tires.  Respondent testified that he added only 25-30 tires from his business but had also given away at least that many for use on docks and other projects.  In addition, there were extensive descriptions and photos of the other debris, as well as receipts and testimony to support the other costs of the cleanup.

            Therefore, the district court findings as to the costs of the cleanup and award of damages are supported by the evidence and are not clearly erroneous.

III.

            Appellant contends that the district court erred in awarding damages for breach of the provision that he paint the buildings because the issue was not before the court.  At the start of the trial, the district court specified that the debris removal and asphalt repair and sealing were the only two issues that were before it.  The court indicated it would limit the evidence to those two claims and that the court would not receive evidence as to any other claim.  The district court nonetheless awarded damages for appellant's failure to paint the buildings as provided in the purchase agreement.

            When a party does not raise an issue in its pleadings, but the parties nonetheless litigate it by express or implied consent, the district court will treat the issue as if raised in the pleadings.  Minn. R. Civ. P. 15.02. 

Consent is commonly implied either where a party fails to object to evidence inadmissible with respect to issues raised by the pleadings or where he puts in his own evidence relating to nonpleaded issues.  There is a presumption that evidence is offered and received with reference to issues framed by the pleadings and consent is not implied where evidence is actually pertinent to such issues regardless of its other probative value.  Consent is not implied by mere failure to claim surprise or request a continuance.

 

Folk v. Home Mut. Ins. Co., 336 N.W.2d 265, 267 (Minn. 1983).

            Appellant first raised the issue of painting on cross-examination of the realtor.  The realtor testified that the purchase agreement obligated appellant to paint the exterior of the buildings and that, before closing, respondent had expressed dissatisfaction regarding the painting.  Subsequently, respondent testified that appellant had agreed to escrow $1,000 toward painting but had not followed through with the painting.  Respondent then stated that the lowest bid he had received for the painting job was $5,500.  Appellant's counsel then cross-examined respondent on these issues, and appellant, in his direct examination, confirmed that $1,000 was escrowed for painting.

            Based on this testimony, the issue was impliedly tried by consent, and the district court properly awarded damages for appellant's failure to paint as provided in the purchase agreement.

            Affirmed.