author: KLAPHAKE, Judge.

text:
    Carol J. POSEY, individually, and as Trustee for the next-of-kin of Thomas Myron Posey, Deceased, Plaintiff, and Lake Park and Cuba Insurance Company, as the subrogee of Carol J. Posey and Thomas Myron Posey, Deceased, Intervenor, v. Richard FOSSEN and Gary Dillon d/b/a Fossen Oil & Propane and Fossen Oil & Propane, L.L.P., Appellants, Western Petroleum Company, et al., Defendants, and Richard Fossen and Gary Dillon d/b/a Fossen Oil & Propane and Fossen Oil & Propane, L.L.P., third-party plaintiffs, Appellants, v. Uponor Aldyl Company, Inc., a foreign corporation, third-party defendant, Respondent.
    No. A05-691.
    Court of Appeals of Minnesota.
    Jan. 3, 2006.

      Joseph F. Lulic, Matthew R. Crom-heecke, Hanson, Lulic & Krall, Minneapolis, MN, for appellants.
    Michael Barrett, Cousineau, McGuire & Anderson, Chartered, Minneapolis, MN, for respondent.
    Considered and decided by HALBROOKS, Presiding Judge, KLAPHAKE, Judge, and WRIGHT, Judge.
   OPINION

KLAPHAKE, Judge.

In this negligence action, appellants Richard Fossen and Gary Dillon, d/b/a Fossen Oil & Propane, and Fossen Oil & Propane, L.L.P., challenge the district court’s award of costs and disbursements to respondent Uponor Aldyl Company, Inc. The district court concluded that respondent, who was the third-party defendant in the underlying negligence action, was the prevailing party as to appellants, the third-party plaintiffs below, and thus was entitled to an award of costs and disbursements from appellants under Minn.Stat. §§ 549.02, 549.04 (2004). Appellants argue that because they prevailed in the underlying negligence action as to plaintiff Carol J. Posey, based on comparative fault, the district court abused its discretion by awarding costs and disbursements to respondent.

Because appellant has failed to sustain its burden of proof that the district court’s decision is against logic and the facts on the record, we affirm.

FACTS

Plaintiff Carol J. Posey, individually and as trustee for the next-of-kin of her deceased husband, Thomas Posey, filed a negligence action against appellants, alleging defective installation of a propane heating system in the Posey home. Appellants brought a third-party suit against respondent, alleging that if appellants “be called upon by way of settlement, verdict, judgment, compromise, or otherwise to make payment to [Posey], that it be awarded judgment of contribution and/or indemnity from [respondent].” Shortly before trial, respondent’s motion for summary judgment was denied by the district court and Posey amended her complaint to allege negligence by respondent.

After trial, the jury returned a verdict of 90% negligence by decedent Thomas Po-sey, 10% by appellants, and none by respondent. The district court entered an order dismissing Posey’s complaint against appellants and respondent, and awarding them costs and disbursements against Po-sey. Posey, who dismissed her individual claims, appealed the award of costs and disbursements, arguing that she was not liable individually, but only as trustee; the district court ruled in her favor.

Respondent thereafter appealed from the award of costs and disbursements, arguing that it was the prevailing party in the third-party action, and thus entitled to costs and disbursements from appellants. The district court ruled in favor of respondent, permitting taxation of respondent’s costs and disbursements against appellants under Minn.Stat. §§ 549.02, 549.04 (2004). Appellants now argue that the district court erred by determining that respondent was a prevailing party under the third-party complaint.

ISSUE

Did the district court abuse its discretion by determining that respondent had prevailed on the third-party complaint for purposes of an award of costs and disbursements under Minn.Stat. §§ 549.02, 549.04 (2004)?

ANALYSIS

Under Minn.Stat. §§ 549.02, 549.04 (2004), the district court has discretion to determine not only the amount of an award of costs and disbursements, but also who the prevailing party is for purposes of such an award. In re Gershcow’s Will, 261 N.W.2d 335, 340 (Minn.1977); Bachovchin v. Stingley, 504 N.W.2d 288, 290 (Minn.App.1993); Kusniryk v. Arrowhead Reg’l Corrections Bd., 413 N.W.2d 182, 184 (Minn.App.1987).

This district court abuses its discretion when its decision is against logic and facts on the record. See O’Donnell v. O’Donnell, 678 N.W.2d 471, 474 (Minn.App.2004). When a district court has discretion, it will not be reversed unless it “abused its discretion, exercised its discretion in an arbitrary or capricious manner, or based its ruling on an erroneous view of the law.” Montgomery Ward & Co. v. County of Hennepin, 450 N.W.2d 299, 306 (Minn.1990). The party challenging the district court’s exercise of discretion has the burden of proof — “a burden which is met only when it is clear that no reasonable person would agree [with] the trial court’s assessment [of sanctions].” Patton v. Newmar Corp., 538 N.W.2d 116, 119 (Minn.1995) (quoting Marrocco v. Gen’l Motors Corp., 966 F.2d 220, 223 (7th Cir. 1992)).

Different factors enter into the determination of prevailing party status. A plaintiff who succeeds on the merits but recovers no damages may not be considered a prevailing party. See, e.g., Lehman v. Hansord Pontiac Co., 246 Minn. 1, 12, 74 N.W.2d 305, 312 (1955); Bachovchin, 504 N.W.2d at 290-91. A plaintiff who prevails on the merits of a negligence action, but recovers less than a settlement offer, can be awarded costs and disbursements, but also can be required to pay costs and disbursements to the defendant. Borchert v. Maloney, 581 N.W.2d 838, 840-41 (Minn.1998). A plaintiff who prevails on the merits and is awarded damages by the jury, but fails to reach the no-fault thresholds, thus causing a reduction of the verdict to zero by operation of law, is not the prevailing party for purposes of an award of costs and disbursements. Luna v. Zeeb, 633 N.W.2d 540, 543-44 (Minn.App.2001). Although seemingly contradictory, each of these matters depends on a careful weighing of the relative success of the parties to a lawsuit, a process that invests a certain amount of discretion in the district court.

The district court here justified its determination that the third-party defendant was a prevailing party as to defendant/third-party plaintiff based on several considerations. First, Posey’s expert witness opined that respondent was not negligent and Posey supported respondent’s motion for summary judgment. Posey amended her complaint only after the summary judgment motion was denied, thus requiring that the issue of respondent’s liability be submitted to the jury. Second, at trial, appellants’ expert testified that respondent had negligently failed to warn because of inadequate installation instructions. Posey did not offer evidence as to respondent’s negligence. Third, respondent was found 0% negligent, and appellants were found 10% negligent, thus escaping liability because of comparative fault. Finally, respondent was required to incur costs in its defense only because of appellants’ claims against it. Based on these facts, the district court reasoned that respondent had prevailed as to the third-party complaint. This is the type of pragmatic analysis the district court must make in identifying the prevailing party. See Luna, 633 N.W.2d at 543; 2 David F. Herr & Roger S. Haydock, Minnesota Practice § 54.25 at 247 (4th ed.2004).

DECISION

Because the district court’s decision to award costs and disbursements is supported by the facts on record and is not against logic, we affirm.

Affirmed.


source: Caselaw Access Project

author: RANDALL, Judge.

license: Public Domain

text:
    Paulette B. LIABO, Appellant, v. WAYZATA NISSAN, LLC, Respondent.
    No. A05-497.
    Court of Appeals of Minnesota.
    Jan. 17, 2006.

      Allen H. Gibas, Allen H. Gibas P.A., and Richard J. Fuller, Mansfield, Tanick, & Cohen, P.A., Minneapolis, MN, for appellant.
    Gregory J. Johnson and Klay C. Ahrens, Johnson, Provo-Peterson, L.L.P., St. Paul, MN, for respondent.
    Considered and decided by RANDALL, Presiding Judge, PETERSON, Judge, and DIETZEN, Judge.
   OPINION

RANDALL, Judge.

This is an appeal from summary judgment on appellant’s claims against a car dealership for violation of the Truth-in-Lending Act and the Minnesota Motor Vehicle Retail Installment Sales Act and for engaging in deceptive trade practices in violation of certain consumer fraud statutes. Appellant had signed certain documents regarding the purchase of a vehicle at a particular interest rate and then respondent refused to return her deposit when the sale was not completed because of appellant’s withdrawal.

Appellant argues: (a) she did not sign a binding contract; (b) the seller was required to provide her with disclosures pursuant to the Truth-in-Lending Act and obtain her signature as required by Minn. Stat. § 168.71 (1998); (c) failure to provide such disclosures constitutes a deceptive trade practice within the meaning of Minn. Stat. §§ 325D.44 (1988) and 325F.69 (1986); (d) under the circumstances, it was a deceptive trade practice to retain the down payment where the buyer rescinded the contract prior to receiving such disclosures; and (e) other actions by the dealership constituted deceptive trade practices.

FACTS

In response to an advertisement offering Nissan automobiles for sale and 2.9% annual percentage rate (APR) financing, Paulette B. Liabo, appellant, visited Way-zata Nissan, respondent. Upon arrival at respondent, appellant met with sales associate Jamie McGregor. After looking at and test driving various automobiles, McGregor and appellant discussed financing. As a result, appellant offered to purchase a 1998 Nissan Altima GXE for $19,158, contingent upon her being approved for the 2.9% APR financing. The 2.9% APR financing was available only to customers who were qualified under Nissan Motor Acceptance Corporation’s (NMAC) Tier 1 or 2 guidelines. Appellant agreed to purchase the 1998 Altima GXE for $19,158.

After appellant offered to purchase the GXE, a Delivery Sheet was prepared. A Delivery Sheet is prepared as part of every transaction where a customer purchases a motor vehicle, whether the customer arranges financing with respondent or finances the purchase through other means. The Delivery Sheet is a written record of the basic terms of the sale that are agreed upon during negotiations between the salesperson and the customer.

As part of the purchase, appellant was to trade in her 1987 Sentra for which she received $1,168 and make a down payment of $1,200. After adding sales tax of $1,169.35, administrative fees of $44.50, and license fees of $204, appellant was to finance approximately $18,208. This information was recorded on the Delivery Sheet. Because appellant wanted to ensure her down payment of $1,200 would be refunded if she was denied financing at 2.9% APR, at her insistence, handwritten on the Delivery Sheet were the words “Special 2.9% O.A.C.”

After all figures were recorded and the handwritten notation was inscribed, appellant signed the Delivery Sheet. Above her signature, in block lettering, was the statement:

I UNDERSTAND THAT THIS IS A BINDING CONTRACT AND I WILL LOSE ANY DEPOSIT IF I DO NOT PERFORM ACCORDING TO TERMS.

Both appellant and respondent understood that if appellant did not qualify for the 2.9% APR, her down payment would be refunded and she would not obligated to purchase the 1998 Altima GXE. Both understood that if she was approved for the 2.9% APR, she would be obligated to purchase the 1998 Altima GXE.

After completing the Delivery Sheet, appellant completed a credit application. Thereafter, Daniel Sinner, respondent’s Sales Manager, ran a credit report. Based upon the results of the credit report, Sinner told appellant he doubted she would be approved for the special 2.9% APR financing. Her credit report indicated that appellant was delinquent and had a derogatory public record, a collection notice filed against her, and other accounts in delinquency. Sinner discussed with appellant alternative financing. One possible option was to submit her credit application to another bank, such as Chase Manhattan where appellant had an existing account. Although the APR was likely to be a bit higher, Sinner stated that she could receive a $500 rebate, which would help defray the higher APR. After discussing alternative financing with Sinner, appellant indicated she wanted to resolve the issues noted in her credit report. Appellant believed her credit problems were related to student loans. Sinner gave appellant the telephone number for Sallie Mae, a credit advisor company, and advised her as to what she needed to do to improve her credit.

In the meantime, at the request of appellant, respondent submitted her credit application to NMAC, hoping to be approved for the 2.9% APR financing. Her credit application was also submitted to Chase Manhattan in case NMAC did not approve her for the special 2.9% APR. Subsequently, appellant was still not approved for the special 2.9% APR financing.

A finance associate with respondent recommended that appellant obtain documentation to show that her school loan problems had been resolved. Appellant did so and respondent’s finance office sent a letter to NMAC’s regional manager asking that NMAC reconsider its decision regarding the special 2.9% APR. Sinner made several calls to NMAC in an attempt to secure the special 2.9% APR financing. After some efforts on the part of respondent, appellant was notified that she had qualified for the special 2.9% APR financing which was approved for the purchase of the 1998 Altima GXE.

After respondent secured the 2.9% APR financing for appellant, she changed her mind and decided she wanted to purchase a different model, the Altima GLE, instead of the GXE. The GLE retailed for a higher price and Sinner informed appellant that the special financing would not be approved for the GLE. As a favor, Sinner contacted NMAC in an effort to allow the special 2.9% APR financing to be applied to the GLE but was told the 2.9% APR financing was approved only for the 1998 Altima GXE. Appellant decided not to purchase the 1998 Altima GXE. Respondent then refused to refund her $1,200 deposit under the terms of the Delivery Sheet.

Appellant argued that if the Delivery Sheet was a binding agreement, it was an agreement binding her to purchase a vehicle by credit. Therefore, she argues, respondent was obligated to make disclosures required of both the federal Truth in Lending Act (TILA) 15 U.S.C. § 1601, and the Minnesota Motor Vehicle Retail Installment Sales Act (MVRISA) Minn.Stat. § 168.66 et seq. If the Delivery Sheet was not a binding contract, she argues respondent engaged in a deceptive trade practices within the meaning of Minn.Stat. §§ 325D.44 and 325F.69 because respondent represented the Delivery Sheet to be a binding contract and refused to refund her down payment. Respondent moved for summary judgment arguing that the Delivery Sheet was a binding contract, but that it was not solely a credit agreement requiring TILA and MVRISA disclosures. The district court granted summary judgment in favor of respondent, holding that the Delivery Sheet was a binding agreement but was not an agreement requiring appellant to purchase the vehicle solely on credit. The district court pointed out that appellant always had an option to change her mind about financing the vehicle and pay cash or borrow money from a source totally unrelated to respondent. The district court held the disclosure requirements of TILA and MVRISA were not required at this point. The district court determined that appellant was free to decline the 2.9% APR financing, but per the Delivery Sheet, she was obligated to purchase the 1998 Altima GXE, or lose her deposit.

This appeal followed. Appellant challenges the district court’s finding that there were no genuine issues of material fact, that the Delivery Sheet was not a binding credit agreement requiring TILA and MVRISA disclosures, and that respondent did not engage in deceptive trade practices.

ISSUES

I. Was the Delivery Sheet executed by appellant a binding contract requiring her to purchase a 1998 Altima GXE from respondent?

a. If appellant was contractually obligated to purchase a 1998 Altima CXE from respondent, was respondent required to make disclosures required by the Truth-in-Lending Act?

b. If appellant was contractually obligated to purchase a 1998 Altima GXE from respondent, was respondent required to make disclosures required by MinmStat. § 168.71?

II. Did respondent engage in deceptive trade practices within the meaning of Minn.Stat. §§ 325D.44 and 325F.69?

ANALYSIS

Summary judgment may be granted if the pleadings, depositions, interrogatory answers, admissions, and affidavits reveal that there is no genuine issue of material fact and that a party is entitled to judgment as a matter of law. Minn. R. Civ. P. 56.03. In an appeal from a grant of summary judgment, appellate courts determine if there are any genuine issues of material fact and if the lower court erred in its application of the law. N. States Power Co. v. Minn. Metro. Council, 684 N.W.2d 485, 491 (Minn.2004). This court must “view the evidence in the light most favorable to the party against whom summary judgment was granted.” Westrom v. Minn. Dep’t of Labor & Indus., 686 N.W.2d 27, 32 (Minn.2004). “The party opposing summary judgment may not establish genuine issues of material fact by relying upon unverified and conclusory allegations, or postulated evidence that might be developed at trial, or metaphysical doubt about the facts.” Dyrdal v. Golden Nuggets, Inc., 689 N.W.2d 779, 783 (Minn.2004).

I. Contract

Appellant argues that if the Delivery Sheet was a binding contract obligating her to purchase the 1998 Altima GXE, she was only bound to purchase the vehicle on credit. If this is true, she argues, respondent was required to make specific disclosures under the Federal Truth-in-Lending Act (TILA) and the Minnesota Vehicle Retail Installment Sales Act (MVRISA). In the alternative, appellant argues that if the Delivery Sheet was not a binding contract, respondent engaged in deceptive trade practices violating Minn. Stat. §§ 325D.44 and 325F.69. To determine the issues, we must first determine whether the Delivery Sheet was a binding contract and, if so, was it a binding contract triggering the requirements of TILA and MVRISA.

Appellant argues the Delivery Sheet does not constitute a binding agreement because the price, a key term, was never approved. She argues the amount financed and listed on the credit application, $20,576, exceeds the price listed on the Delivery Sheet and because the amount is not the same on the Delivery Sheet, there is no contract;

Although the listed price on the Delivery Sheet and the Credit Application were not the same, there was a binding agreement between the parties. As the district court observed, the amount to be financed is the same on both the Delivery Sheet and Credit Application. The difference in the listed price is a result of adding all costs into the price on the Credit Application versus separating the costs on the Delivery Sheet. When adding to the price listed on the Delivery Sheet the tax ($1,169.35), license fees ($204), and doeument fees ($44.50), the amounts are identical. When appellant’s down payment and trade-in are subtracted from the price, both the Delivery Sheet and the Credit Application show the same amount to be financed. The price may have been recorded differently on the Delivery Sheet and the Credit Application, but no one was misled as to the exact amount of the price or the amount to be financed.

Appellant also argues that the Delivery Sheet is not a binding contract because the 2.9% APR financing was initially denied and, therefore, not all conditions of the contract were met. She argues after she was initially denied financing, she demonstrated to respondent that she no longer wished to purchase the 1998 Altima GXE. She argues that respondent invited her to enter into negotiations to purchase other vehicles. We disagree. The facts show otherwise.

Appellant’s actions after initially being denied the 2.9% APR show that she intended to do what she could in order to secure that special financing. After the 2.9% APR financing was initially denied, appellant attempted to clear her credit history in order to qualify for the financing. She contacted the United States Department of Education in an effort to address her student loan issues. Once she resolved her student loan issues, she hand delivered the appropriate documents to respondent’s finance department. Appellant knew respondent was continuing its efforts to help her secure the special 2.9% financing. Even though respondent did assist appellant in looking at different cars, there was no indication from the appellant that she wanted to abandon the original agreement.

With respondent’s urging and help, appellant eventually obtained the desired financing. After she was approved for the special financing, appellant wished to cancel her original purchase agreement for the GXE and now buy a more expensive model. She was then correctly told that the 2.9% financing was only good for the original desired automobile.

The district court held that the Delivery Sheet was a binding agreement, requiring appellant to purchase the specified automobile. The court held that the Delivery Sheet contained a condition precedent which required respondent to secure financing at 2.9% APR before the Delivery Sheet became binding. Because respondent secured the financing, the condition precedent was satisfied. The district court’s finding is correct. Appellant was contractually obligated to purchase a 1998 Altima GXE from respondent, or forfeit her down payment.

a. If appellant was contractually obligated to purchase a 1998 Altima GXE from respondent, was respondent required to make disclosures required by the Truth-in-Lending Act?

Appellant argues that because the Delivery Sheet contains terms specifying that the balance of the cash price was to be financed at 2.9%, it could only have been effective, if at all, to create a credit obligation. She argues that because she was only obligated to purchase by credit, respondent was' required to make TILA disclosures.

TILA requires that creditors make specific disclosures when entering into a credit agreement with a consumer. 15 U.S.C. § 1638(a). The disclosures are to be made before consummation of the credit agreement, which is defined as “the time that a consumer becomes contractually obligated on a credit transaction.” 12 C.F.R. § 226.2(a)(13) (emphasis added).

Appellant argues TILA disclosures were required because she was extended credit when she signed the Delivery Sheet. She argues the Delivery Sheet extended credit to her because it states that respondent will sell an automobile to her for a stated price, her down payment, and it outlines the financing for the unpaid balance. She argues she consummated a credit agreement which requires specific disclosures under TILA.

Appellant cites two cases, Terry v. Whitlock, 102 F.Supp.2d 661 (W.D.Va.2000) and Graves v. Tru-Link Fence Co., 905 F.Supp. 515 (N.D.Ill.1995), in support of her argument that the Delivery Sheet corn stituted a credit agreement requiring TILA disclosures.

In Terry, the court found a credit obligation where an automobile buyer entered into a Buyer’s Order which stated that the order comprised the entire agreement affecting the purchase of the automobile. 102 F.Supp.2d at 664. Here, the Delivery ■ Sheet did not comprise the whole agreement. It was understood that once appellant was approved for the 2.9% APR financing, she would then be required to fill out an installment contract which would list the total amount owed and monthly payments. Unlike the Buyer’s Order in Terry, the Delivery Sheet did not compromise the complete agreement.

In Graves, the court found a credit obligation where a consumer and contractor entered into a fencing proposal which stated the total amount to be paid and amount to be paid each month. 905 F.Supp. at 518-19. Graves is not persuasive. Here, the Delivery Sheet did not list the total amount to be paid or the monthly payment amount. There was no credit agreement based upon the case law cited by appellant. In both Terry and Graves, there was more to the initial contracts than the Delivery Sheet before this court. The Delivery Sheet listed the price, trade-in amount, down payment, and appropriate taxes and processing fees. There was no discussion regarding the total amount to be paid or monthly payments. Appellant’s argument boils down to this: Respondent agreed to sell an automobile on credit to her; therefore, TILA disclosures were required.

The district court held that TILA disclosures were not required at this time because she was not obligated to accept the 2.9% APR financing. The district court reasoned that because a Delivery Sheet only serves to record the price, taxes, licensing fees, down payment, and trade-in value, it is not a retail installment contact which requires TILA disclosures. We find the record clear enough that the required disclosures would have been an obligation of respondent at a later time, but not at this point, and appellant was not misled. The Delivery Sheet was not a retail installment contract requiring TILA disclosures. All customers, whether they obtain financing through respondent or not, execute a Delivery Sheet. The terms recorded on the Delivery Sheet are then incorporated into a Purchase Agreement. If appellant had proceeded with the transaction, she would have next executed a Purchase Agreement and finally, a Retail Sales Installment Contract. The required TILA disclosures would be contained in the Retail Sales Installment Contract. The district court found that the Delivery Sheet was a binding contract, but it alone did not trigger the disclosure requirements of TILA or MVRISA. The district court’s finding is correct.

Appellant argues she consummated a credit agreement. The Official Staff Commentary to Regulation Z states that consummation “does not occur merely because the consumer has made some financial investment in the transaction (for example, by paying a nonrefundable fee) unless ... applicable law holds otherwise.” 12 C.F.R. Pt. 226, Supp. I, § 2(a)(13). Additionally, the commentary explains that consummation “does not occur when a consumer becomes contractually committed to a sale transaction, unless the consumer also becomes legally obligated to accept a particular credit arrangement.” Id. The commentary uses an example with facts similar to here to demonstrate its language. “When a consumer pays a nonrefundable deposit to purchase an automobile, a purchase contract may be created, but consummation for purposes of the regulation does not occur unless the consumer also contracts for financing at that time.” Id. Here, appellant never became contractually obligated to accept a particular credit arrangement. The Delivery Sheet was not a contract setting out the particulars of a credit arrangement. It was solely a purchase contract stating the price of the automobile, the fees associated with the purchase, appellant’s trade-in value and down payment, and the amount to be financed. Appellant knew additional documents were to be executed once she was approved for the financing. She testified that she expected to review and fill out loan papers after being approved for the financing. She testified that she expected the loan papers to include the “number of payments, how much the payments [were] going to be, [and] the interest charge.”

TILA disclosures would only have been necessary if appellant had continued with the transaction and executed the Retail Installment Contract. She chose not to do so, therefore, the disclosures were not necessary.

b. If appellant was contractually obligated to purchase a 1998 Altima GXE from respondent, was respondent required to make disclosures required by Minn.Stat. § 168.71?

Appellant argues that respondent violated the Minnesota Motor Vehicle Retail Installment Sales Act (MVRISA) when it failed to make required disclosures under Minn.Stat. § 168.71(b). The district court held that the disclosures under MVRISA were not necessary because the Delivery Sheet was not a retail installment contract under Minn.Stat. § 168.71. The district court’s finding is correct.

The Delivery Sheet executed by appellant was not a retail installment contract. Under Minn.Stat. § 168.66, subd. 4, a retail installment contract is defined as “any agreement ... evidencing a retail installment sale of a motor vehicle.” A retail installment sale is defined as a “sale evidenced by a retail installment contract wherein [the] retail buyer agrees to buy and [the] retail seller agrees to sell a motor vehicle at a ... price payable in one or more installments.” Id. at subd. 3. Although the Delivery Sheet does list the price, appellant’s down payment, trade-in value, and various associated fees, it does not list any terms regarding installment payments and financing other than that the transaction was contingent on appellant being approved for the 2.9% APR financing. As stated by the district court, the next document executed, had appellant followed through with the purchase would have listed the exact terms of financing, including installment amounts and specifics. A retail installment contract typically sets forth details regarding financing such as the interest rate, finance charge, amount financed, and the total number of payments. Generally, a retail installment contract comes into being only after financing is approved. See Scott v. Forest Lake Chrysler-Plymouth-Dodge, 611 N.W.2d 346, 351 (Minn.2000).

Here, the Delivery Sheet did not list any finance charges, nor the total amount of installment payments, the amount of each installment payment, or the date the payments were due. There was no “retail installment” contract at the point that appellant backed out of the transaction.

II. Deceptive Trade Practices

Appellant argues that respondent engaged in deceptive trade practices. Specifically, she argues respondent violated Minn.Stat. §§ 325D.44 and 325F.69. She claims that respondent misrepresented the facts surrounding her potential purchase by engaging in conduct likely to confuse her about the balance to be financed, the status of the Delivery Sheet as a binding contract, and by failing to make the required disclosures required by MVRISA and TILA.

Minnesota’s consumer-protection statutes are commonly read together so as to prohibit the use of deceptive and unlawful trade practices. Under Minn.Stat. § 325F.69, subd. 1, an unlawful practice is defined as

[t]he act, use, or employment by any person of any fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with the intent that others rely thereon in connection with the sale of any merchandise, whether or not any person has in fact been misled, deceived, or damaged thereby....

Consumer-protection statutes are remedial in nature and are liberally construed in favor of protecting consumers. State by Humphrey v. Alpine Air Prods., Inc., 490 N.W.2d 888, 892 (Minn.App.1992), aff'd, 500 N.W.2d 788 (Minn.1993); see also Wie-gand v. Walser Auto. Groups, Inc., 683 N.W.2d 807, 812 (Minn.2004) (discussing policy and purpose underlying the MCFA); State by Humphrey v. Phillip Morris, Inc., 551 N.W.2d 490, 496 (Minn.1996) (stating that the DTPA is broadly construed to enhance consumer protection).

For appellant to prevail on her argument, she must show that respondent intentionally made a misrepresentation in regards to the sale and that she suffered damages caused by the misrepresentation. Group Health Plan, Inc. v. Philip Morris Inc., 621 N.W.2d 2, 12 (Minn.2001) (emphasis added). The district court found that respondent made no misrepresentations and appellant suffered no damages. The evidence supports the district court’s findings.

Appellant argues that she was obligated to purchase the vehicle by credit only if she was approved for the 2.9% APR financing. She was approved for the 2.9% financing, allowing her to purchase the vehicle on credit through respondent, or pay cash, or find her financing elsewhere at a lender that did not involve respondent.

Appellant argues that respondent engaged in deceptive conduct by misrepresenting the transaction as one only involving credit. That is not the state of the record. Certainly, the facts look like appellant was not going to pay cash for the car, and wanted credit, but there is nothing to indicate that she was foreclosed from paying cash if she wanted to.

The Delivery Sheet states, above appellant’s signature line, that the Delivery Sheet is a binding contract. Noted on the Delivery Sheet, at the insistence of appellant, are the words, “special 2.9% O.A.C.” This notation was specifically recorded on the Delivery Sheet at the request of appellant to put on record that she was not obligated to purchase the vehicle if she was not approved for the 2.9% APR financing. Respondent did not engage m deceptive trade practices or misrepresent the facts. Respondent took extra care to note on the Delivery Sheet that appellant was obligated to purchase the vehicle only if she was approved for the special financing. This is exactly what happened. Appellant was initially denied financing but through the efforts of respondent and her own, she was eventually approved for the financing. She understood exactly what she was getting into.

Appellant suffered no damages. She executed a contract that stated her $1,200.00 down payment would be refunded if she did not qualify for the special 2.9% APR financing. She was approved for that financing, but then rejected it for the car she had intended to buy, wanting to switch the preferential financing to a more expensive vehicle. When that request was denied, appellant tried to back out of the contract, not buy any car, and get back her down payment. We conclude respondent was entitled to appellant’s down payment. That was a term of the agreement.

DECISION

The Delivery Sheet and its terms formed a binding contract, requiring appellant to purchase a particular vehicle if she got approved for preferential financing. Appellant understood that after signing the Delivery sheet and being approved for financing, she would sign additional papers with the requisite disclosures being owed her in that time before her purchase was final. It was in these additional forms that the required disclosures needed in a retail installment contract would have been disclosed.

After being approved for the special financing, appellant defaulted on the purchase agreement and, thus, her down payment was forfeited.

Finally, respondent did not engage in any deceptive trade practices or misrepresentation.

Affirmed.

      . Tier 1 and 2 qualified buyers are those who have preferred or standard credit ratings. Appellant qualified as a Tier 4 buyer which is generally reserved for those with a poor credit history and often ends up with an interest rate/APR around 16%, or more.

      . This number represents the rounded up figure of the balance financed ($18,207.85).

      . The price listed on the Delivery Sheet is $19,158.

      . The Delivery Sheet amount listed to be financed is $18,207.85. This amount was rounded up to $18,208 on the Credit Application.

      . Regulation Z is issued by the Board of Governors of the Federal Reserve System to implement the Federal Truth in Lending Act. 12 CFR 226.1.


author: PETERSON, Judge.

text:
    VEIT COMPANY, et al., Relators, v. LAKE COUNTY, Minnesota, et al., Respondents.
    No. A04-1958.
    Court of Appeals of Minnesota.
    Jan. 17, 2006.

      Jack Y. Perry, Jason R. Asmus, Briggs and Morgan, P.A., Minneapolis, MN, for relators.
    Michael J. Ford, John H. Wenker, Quin-livan & Hughes, P.A., St. Cloud, MN, for respondents.
    Considered and decided by PETERSON, Presiding Judge; DIETZEN, Judge; and HUSPENI, Judge.

       Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const, art. VI, § 10.

   OPINION

PETERSON, Judge.

On appeal from .the denial of relator applicants’ application to amend their conditional-use permit, relators argue that their application was approved by operation of law because respondent county did not (1) provide relators a written statement of the reasons for denying the permit within the required statutory period; and (2) provide relators a written statement of the reasons for the denial that was consistent with the reasons stated on the record. We reverse.

FACTS

In July 2000, respondent Lake County Planning Commission granted relator B & B Aggregates a conditional-use permit (CUP) for a commercial gravel operation. In the published conditional-use order, the planning commission found that B & B’s CUP request did not include crushing or washing operations and that the CUP allowed only gravel mining and screening. After B & B submitted to the planning commission a separate application for a crushing permit and sought a writ of mandamus in the district court to compel the planning commission to approve B & B’s permit request, the planning commission issued an amended order granting B & B’s request for a crushing permit, but it did not allow blasting or quarrying. B & B amended its petition for a writ of mandamus to compel the planning commission to include blasting and quarrying in the permit, arguing that blasting and quarrying are inherent to a commercial gravel operation. The district court granted summary judgment for respondent Lake County and its planning commission, and this court affirmed. B & B Aggregates v. Lake County, 2002 WL 453231 (Minn.App. Mar.26, 2002).

In June 2003, B & B applied to Lake County to “add blasting and quarrying to previously approved ‘CUP.’ ” On August 18, 2003, the planning commission denied B & B’s application. B & B did not challenge the August 18, 2003 decision.

On June 15, 2004, B & B, this time joined by relator Veit Company, submitted another application to add blasting and quarrying to its previously approved CUP. The planning commission conducted a hearing on relators’ application on August 16, 2004. At the close of the hearing, a commission member moved to deny the CUP application based on relators’ failure to show that the proposed use would not create potential health and safety, environmental, lighting, noise, signing, or visual problems and would not be detrimental to the rightful use and enjoyment of other property in the immediate vicinity nor substantially diminish or impair property values within the vicinity. The motion carried. At the meeting, a written notice of denial was given to John Pippert, a vice president of Veit. The notice does not list any reasons for the denial. In October 2004, relators received from the planning commission a written order that states that relators’ application is denied and includes as an attachment a planning-commission resolution that states reasons for the denial.

By writ of certiorari, relators sought this court’s review of the planning commission’s denial of their CUP application.

ISSUE

Was relators’ CUP application approved by operation of law because the planning commission failed to comply with the requirements in Minn.Stat. § 15.99, subd. 2(c) (Supp.2003)?

ANALYSIS

Because the planning commission determined facts about the nature and effects of relators’ proposed land use and then exercised its discretion in determining whether to allow the use, the denial of relators’ application was a quasi-judicial decision. Neitzel v. County of Redwood, 521 N.W.2d 73, 75 (Minn.App.1994), revieiv denied (Minn. Oct. 27, 1994). The supreme court has explained

that in the absence of an adequate method of review or legal remedy, judicial review of the quasi-judicial decisions of administrative bodies, if available, must be invoked by writ of certiorari. Review by certiorari is limited to an inspection of the record of the inferior tribunal in which the court is necessarily confined to questions affecting the jurisdiction of the board, the regularity of its proceedings, and, as to merits of the controversy, whether the order or determination in a particular case was arbitrary, oppressive, unreasonable, fraudulent, under an erroneous theory of law, or without any evidence to support it.

Dietz v. Dodge County, 487 N.W.2d 237, 239 (Minn.1992) (quoting State ex rel. Ging v. Bd. of Educ. of Duluth, 213 Minn. 550, 571, 7 N.W.2d 544, 556 (1942) (overruled on other grounds)).

Relators argue that when denying their CUP application, the planning commission failed to comply with the requirements in Minn.Stat. § 15.99, subd. 2(c) (Supp.2003), that the commission state reasons for the denial in writing. Relators contend that because the planning commission failed to comply with these statutory requirements, they are entitled to have their application granted. Respondents contend that the written denial that relators received’ on August 16, 2004, and the verbatim transcript of the August 16 hearing conform to the requirements of section 15.99.

Statutory interpretation is a question of law subject to de novo review. Am. Tower, L.P. v. City of Grant, 636 N.W.2d 309, 312 (Minn.2001).

Minn.Stat. § 15.99, subd. 2 (Supp.2003), states:

(a) Except as otherwise provided in this section, section 462.358, subdivision 3b, or chapter 505, and notwithstanding any other law to the contrary, an agency must approve or deny within 60 days a written request relating to zoning, septic systems, or expansion of the metropolitan urban service area for a permit, license, or other governmental approval of an action. Failure of an agency to deny a request within 60 days is approval of the request. If an agency denies the request, it must state in uniting the reasons for the denial at the time that it denies the request.
(b) When a vote on a resolution or properly made motion to approve a request fails for any reason, the failure shall constitute a denial of the request provided that those voting against the motion state on the record the reasons why they oppose the request. A denial of a request because of a failure to approve a resolution or motion does not preclude an immediate submission of a same or similar request.
(c)Except as provided in paragraph (b), if an agency, other than a multi-member governing body, denies the request, it must state in writing the reasons for the denial at the time that it denies the request. If a multimember governing body denies a request, it must state the reasons for denial on the record and provide the applicant in writing a statement of the reasons for the denial. If the written statement is not adopted at the same time as the denial, it must be adopted at the next meeting following the denial of the request but before the expiration of the time allowed for making a decision under this section. The written statement must be consistent with the reasons stated in the record at the time of the denial. The written statement must be provided to the applicant upon adoption. -

(Emphasis added.) The definition of “agency” includes a county. Minn.Stat. § 15.99, subd. 1(a) (Supp.2003).

Under Minn.Stat. § 15.99, subd. 2(a), an agency has 60 days to approve or deny a zoning request, and if the agency fails to deny the request within 60 days, the request is approved by operation of law. Minn.Stat. § 15.99, subd. 2(a), also requires that if an agency denies a zoning request, the agency “must state in writing the reasons for the denial at the time that it denies the request.” There is no dispute that the planning commission denied rela-tors’ CUP application within the permitted 60-day period; a motion to deny the application was passed at the August 16, 2004 commission meeting, and a written notice of denial was given to relators’ representative at the meeting. But the written notice of denial did not state any reasons for the denial.

In Demolition Landfill Servs., LLC v. City of Duluth, 609 N.W.2d 278 (Minn.App.2000), review denied (Minn. July 25, 2000), this court construed as mandatory the requirement in MinmStat. § 15.99, subd. 2 (1998), that “[i]f an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.” The Demolition Landfill court concluded, “Absent a denial within the statutory time limit and simultaneous, written reasons for the denial, the permit application is approved.” 609 N.W.2d at 282. By requiring “simultaneous, written reasons for the denial” to avoid automatic approval, the Demolition Landfill court construed the statute to mean that written reasons for a denial are an essential part of the denial. Id. at 281-82.

Following the Demolition Landfill decision, the legislature amended subdivision two of section 15.99 by designating the existing subdivision two as clause (a) and adding clauses (b) and (c). 2003 Minn. Laws ch. 41, § 1. The legislature did not amend the provision construed as mandatory by the Demolition Landfill court. Therefore, the Demolition Landfill construction of the written-reasons requirement applies to this case. See State v. Anderson, 666 N.W.2d 696, 700 (Minn.2003) (stating that when the legislature does not amend the supreme court’s construction of a statute, the court’s construction stands) (citing W. Union Tel. Co. v. Spaeth, 232 Minn. 128, 131-32, 44 N.W.2d 440, 441-42 (Minn.1950) (“The judicial construction of a statute, so long as it is unreversed, is as much a part thereof as if it had been written into it originally”); see also Minn.Stat. § 645.17 (2002) (providing that “when a court of last resort has construed the language of a law, the legislature in subsequent laws on the same subject matter intends the same construction to be placed upon such language”)).

The new provisions in clause (c) that apply to a multimember governing body (1) continue the requirement that if a request is denied, the multimember governing body must state the reasons for the denial in writing; and (2) add a requirement that the written statement be provided to the applicant. But for a multimem-ber governing body, it is not necessary that the written statement of the reasons for a denial be adopted and provided to the applicant at the time of the denial. However, if a multimember governing body does not adopt a written statement of the reasons for a denial at the time of the denial, the written statement must be adopted at the multimember governing body’s next meeting following the denial and before the permitted period for denying a request expires. Although these new provisions provide an alternative method for a multimember governing body to satisfy the requirement that reasons for a denial be stated in writing, they do not provide a basis for this court to depart from the Demolition Landfill court’s conclusion that the statutory written-reason requirements are mandatory.

Like clause (a), clause (c) applies the mandatory term “must” to the requirements that (1) a multimember governing body state the reasons for denial on the record and provide the applicant a written statement of the reasons for the denial; (2) written reasons be adopted at the multi-member governing body’s next meeting following the denial and within the 60-day time period for denying a request; (3) the written statement be consistent with the reasons stated in the record at the time of the denial; and (4) the written statement be provided to the applicant upon adoption. See Minn.Stat.- '§ 645.44, subd. 15a (2004) (stating that “ ‘must’ is mandatory”). Furthermore, the written-reasons requirement in clause (c) applicable to an agency other than a multimember governing body is identical with that construed in Demolition Landfill. Because the legisla: ture used language that, on its face, indicates that these new requirements are mandatory and enacted the new requirements after this court construed the simultaneous-written-reason requirement in the original section 15.99 as mandatory, we conclude that the new requirements in Minn.Stat. § 15.99, subd. 2(c), are also mandatory.

It is undisputed that the planning commission did not adopt a written statement of the reasons for denying relators’ CUP application and provide the written statement to relators at the August 16, 2004 meeting where the application was denied. By itself, this does not mean that the application is granted, because the new requirements in subdivision 2(c) permitted the planning commission to adopt a written statement of the reasons for the denial at its next meeting before the 60-day period for making a decision expired. But the August 16, 2004 meeting occurred on the last day of the 60-day period for making a decision, and as a result, the planning commission’s next meeting did not occur before the 60-day period expired. Consequently, the planning commission could not use the alternative method for a multi-member governing body to satisfy the requirement that reasons for a denial be stated in writing.

Respondents argue that, notwithstanding Demolition Landfill, the purpose of the requirement that a denial of a permit application be supported by written reasons is to prevent post hoc- justifications for a denial and that the record, particularly the transcript of the August 16, 2004 hearing, provides sufficient justification for the planning commission’s denial of rela-tors’ permit application. But even if the transcript could serve as a written statement of the reasons for the denial of rela-tors’ application, the record does not demonstrate that the planning commission transcribed the recording of the hearing, adopted the transcript within the 60-day statutory period, and provided the transcript to relators upon adoption.

Because the requirement that reasons for a denial be stated in writing is mandatory, and the planning commission did not use either of the two permitted methods for a multimember governing body to meet this requirement, relators’ CUP application was approved by operation of law. Because the planning commission’s failure to comply with the requirement that reasons for a denial be stated in writing means that the application is approved by operation of law, we do not address rela-tors’ additional arguments why their application should not have been denied.

DECISION

Because the planning commission did not (1) provide relators a written statement of the reasons for denying relators’ application at the August 16, 2004 meeting, or (2) adopt a written statement of the reasons for the denial at its next meeting and before the 60-day period for making a decision expired and provide the written statement to relators, relators’ CUP application is approved under MinmStat. § 15.99, subd. 2, and we reverse the planning commission’s denial of relators’ application.

Reversed.

      . August 14, 2004, was the 60th day after relators submitted their application. Because August 14 fell on a Saturday, the deadline for denying the application was extended to the following business day, Monday, August 16, 2004. See Gun Lake Ass’n v. County of Aitkin, 612 N.W.2d 177, 181 (Minn.App.2000) (citing Minn.Stat. § 645.15).

      . Under Minn.Stat. § 15.99, subd. 2, the permitted period for denying a request is ordinarily 60 days. But under Minn.Stat. § 15.99, subd. 3(f) (Supp.2003), ''[a]n agency may extend the time limit in subdivision 2 before the end of the initial 60-day period by providing written notice of the extension to the applicant. The notification must state the reasons for the extension and its anticipated length, which may not exceed 60 days unless approved by the applicant.” There is no claim that the planning commission extended the initial 60-day period.


author: HALBROOKS, Judge.

text:
    NORTHFIELD CARE CENTER, INC., Respondent, v. David ANDERSON, Appellant.
    No. A04-2491.
    Court of Appeals of Minnesota.
    Jan. 17, 2006.

      Robert F. Rode, Voigt, Jensen & Kle-gon, LLC, St. Paul, MN, for respondent.
    Michael C. Mahoney, Mahoney & Emerson, Ltd., Wayzata, MN, for appellant.
    Considered and decided by KLAPHAKE, Presiding Judge; HALBROOKS, Judge; and WRIGHT, Judge.
   OPINION

HALBROOKS, Judge.

Appellant challenges the district court’s grant of summary judgment for respondent. Appellant argues that pursuant to Minn.Stat. § 144.6501, subd. 4(d) (2004), he cannot be personally liable for amounts owing as a result of his mother’s stay at respondent’s facility. In addition, appellant contends that the district court erred in awarding respondent attorney fees in excess of the recovery amount. Because the district court did not err in its conclusion that appellant is liable for respondent’s costs under Minn.Stat. § 144.6501, subd. 4(d), and the district court acted within its discretion in awarding attorney fees pursuant to the terms of the admissions agreement, we affirm on those issues. But because appellant has personal liability for the costs under Minn.Stat. § 144.6501, subd. 4(d), only to the extent “the resident’s income or assets were misapplied,” we remand for the district court’s determination of whether appellant misapplied his mother’s income and direct the district court on remand to clarify that appellant is liable for the attorney fees in his capacity as his mother’s attorney-in-fact — but not personally — absent a finding of bad faith under Minn.Stat. § 523.21 (2004).

FACTS

Appellant David Anderson served as attorney-in-fact for his mother, Frances Anderson. Appellant and Mrs. Anderson agreed that she would reside at respondent Northfield Care Center, a nursing home facility. Both appellant and Mrs. Anderson signed respondent’s admissions contract. Although not required by the terms of the contract, appellant signed the contract both as Mrs. Anderson’s legal representative and as a responsible party.

Under section 9.2 of the “CERTIFICATIONS” section of the contract, appellant and Mrs. Anderson agreed that she was “liable for payment of all sums under this Agreement.” Because Mrs. Anderson received medical assistance from Rice County Social Services, the county determined her spend-down amount and advised Mrs. Anderson and appellant of the amount that Mrs. Anderson owed respondent each month. It is undisputed that appellant, as his mother’s attorney-in-fact, had control of and access to her income and assets throughout her stay in respondent’s facility. It is further undisputed that neither Mrs. Anderson nor appellant paid the entire amount that was due and owing to respondent, thereby creating a past-due balance.

Mrs. Anderson resided in respondent’s facility from January 12, 2001, to March 30, 2003. After Mrs. Anderson passed away, respondent attempted to collect the past-due amount ($3,838.33) from appellant. But appellant refused to pay it, prompting respondent to bring an action in conciliation court. The conciliation court ordered judgment for respondent, and appellant challenged the decision by removing the matter to district court. After failed attempts to settle or mediate the dispute, the parties brought cross-motions for summary judgment. The district court granted respondent’s motion for summary judgment, awarding the balance due plus interest.

The district court also granted respondent’s motion for an award of its collection costs, including attorney fees, as provided for in the admissions contract. Respondent provided an affidavit to the district court that contained billing statements of the individuals who worked on the case with their hourly rates, the number of hours that they worked on the case, a description of the work done, and the reasons why the amount sought was reasonable. The district court gave appellant the opportunity to respond to the billing dat'a, and appellant filed a memorandum challenging the summary judgment ruling— with the same arguments currently before this court — and challenging the attorney fees sought by respondent. The district court found that respondent’s request for fees was reasonable and awarded respondent costs and fees totaling $14,265.62. This appeal follows.

ISSUES

1. Did the district court err in interpreting the law- and finding that respondent is entitled to judgment as a matter of law?

2. Did the district court abuse its discretion in awarding respondent costs and attorney fees in the amount of $14,265.62?

ANALYSIS

“On appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the [district] court[ ] erred in [its] application of the law.” State by Cooper v. French, 460 N.W.2d 2, 4 (Minn.1990). The reviewing court must “view the evidence in the light most favorable to the nonmoving party.” Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 345 (Minn.2003).

[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.

DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.1997). “[T]he party resisting summary judgment must do more than rest on mere averments.” Id. If there are no genuine issues of material fact, this court will review the district court’s application of law de novo. Hubred v. Control Data Corp., 442 N.W.2d 308, 310 (Minn.1989).

1. Did the district court err in interpreting the law and finding that respondent is entitled to judgment as a matter of law?

Appellant concedes that (1) he signed the admissions contract as a responsible party, (2) the contract obligated him to use his mother’s income to pay for her stay at respondent’s facility, (3) there is a past-due balance, and (4) he has not paid it. The question remaining is whether, under Minnesota law, the contract and appellant’s obligation as a responsible party are valid, and if so, whether respondent is entitled to judgment as a matter of law.

A. Did the district court err in interpreting the law?

The Minnesota responsible-party statute allows an individual to be personally liable for a resident’s nursing-home costs under certain circumstances:

A person who desires to assume financial responsibility for the resident’s care may contract with the facility to do so. A person other than the resident or a financially responsible spouse who signs an admission contract must not be required by the facility to assume personal financial liability for the resident’s care. However, if the responsible party has signed the admission contract and fails to make timely payment of the facility obligation, or knowingly fails to spend down the resident’s assets appropriately for the purpose of obtaining medical assistance, then the responsible party shall be liable to the facility for the resident’s costs of care which are not paid for by medical assistance. A responsible party shall be personally liable only to the extent the resident’s income or assets were misapplied.

Minn.Stat. § 144.6501, subd. 4(d) (2004) (emphasis added). Thus,' if a person chooses to be a “responsible party” and personally guarantee payment for a resident’s costs, he may do so. Id.

Here, under the admissions contract, a “responsible party,” is defined as someone who “[djesires to act for Resident with respect to certain duties and obligations .... The Responsible Party has access to the Resident’s income and assets and agrees to apply the Resident’s income and assets to pay for the Resident’s care.” The admissions contract allows, but does not require as a condition for admission, that an individual commit to being a responsible party. Because the option of being a responsible party is voluntary and not a condition of an individual’s admission into a nursing facility, the Minnesota statute is clear, and the district court did not err in interpreting the law.

B. Did the district court err in finding that respondent was entitled to judgment as a matter of law?

Having determined that the district court properly interpreted the law, the remaining issue is whether the district court properly applied the undisputed facts to the law. Those undisputed facts are: (1) that appellant signed his mother’s admissions contract admitting her into respondent’s facility as her legal representative; (2) that appellant also signed the admissions contract as a responsible party; (3) that the admissions contract required payments from the resident’s income each month to offset Medicaid payments; (4) that throughout this time appellant had control of, and access to, Mrs. Anderson’s income; (5) that appellant, at times, failed to make full payments; and (6) that the admissions contract states that failure to make timely payments shall result in personal liability for the responsible party. Consequently, the district court determined that respondent was entitled to judgment as a matter of law.

Appellant challenges this ruling because the district court did not find that he misapplied his mother’s income. The statute governing the liability of responsible parties provides that “[a] responsible party shall be personally liable only to the extent the resident’s income or assets were misapplied.” Minn.Stat. § 144.6501, subd. 4(d). The district court found that because appellant failed to make timely payments, as the contract required him as the responsible party to do, he was liable for the past-due amount. But the district court did not make a finding as to whether appellant misapplied Mrs. Anderson’s income.

Thus, because it is not clear from the record whether appellant, as a responsible party, is personally liable or whether Mrs. Anderson’s estate is liable for the past due balance, we remand for the district court’s determination of that issue.

2. Did the district court abuse its discretion in awarding respondent attorney fees in the amount of $14,265.62?

Generally, “attorney fees are not recoverable in litigation unless there is a specific contract permitting or a statute authorizing such recovery.” Barr/Nelson, Inc. v. Tonto’s, Inc., 336 N.W.2d 46, 53 (Minn.1983). “On review, this court will not reverse a [district] court’s award or denial of attorney fees absent an abuse of discretion.” Becker v. Alloy Hardfacing & Eng’g Co., 401 N.W.2d 655, 661 (Minn.1987). The reasonable value of counsel’s work is a question of fact, and we must uphold the district court’s findings on that issue unless they are clearly erroneous. Amerman v. Lakeland Dev. Corp., 295 Minn. 536, 537, 203 N.W.2d 400, 400-01 (1973).

Because the admissions contract authorized collection costs — including reasonable attorney fees — in the case of past-due balances, the district court found that the agreement was unambiguous and ordered judgment against appellant for respondent’s attorney fees and costs totaling $14,265.62. The district court’s order does not address whether the award of attorney fees and costs is against appellant personally or in his capacity as his mother’s responsible party or attorney-in-fact.

Appellant contends that the district court abused its discretion by awarding costs and attorney fees that exceed the past-due amount of $3,838.33. In addition, appellant raised the issue of whether the district court abused its discretion in holding appellant personally liable for attorney fees when his role was as his mother’s legal representative.

A. Reasonableness

The test for determining the reasonableness of attorney fees is “[t]he time and labor required; the nature and difficulty of the responsibility assumed; the amount involved and the results obtained; the fees customarily charged for similar legal services; the experience, reputation, and ability of counsel; and the fee arrangement existing between counsel and the client.” State by Head v. Paulson, 290 Minn. 371, 373, 188 N.W.2d 424, 426 (1971).

Although some courts have taken into consideration the recovery amount when determining reasonable attorney fees, Asp v. O’Brien, 277 N.W.2d 382, 385 (Minn.1979), Bloomington Elec. Co. v. Freeman’s, Inc., 394 N.W.2d 605, 608 (Minn.App.1986), review denied (Minn. Dec. 17, 1986), that is not always the case. See Liess v. Lindemyer, 354 N.W.2d 556, 558 (Minn.App.1984) (quoting Bryant v. TRW, 689 F.2d 72, 80 (6th Cir.1982) (“The fact that the attorney’s fees in this case, $13,705, exceeded plaintiffs actual damages, $8,000, does not argue for a reduction of the former.”)).

Here, respondent’s attorney submitted an affidavit containing billing statements of the individuals who worked on this case, their hourly billing rates, the number of hours worked on this case, and why the amounts are reasonable. The district court allowed appellant to respond to that information.

The district court reviewed the billing sheets submitted by respondent and found that the fees were reasonable, based on the level of experience and'expertise of the individuals working on the case and “the pleadings, the number of hearings and appearances and the nature of the claims, defenses and counterclaims.” Because the admissions contract provided for recoupment of collection costs and because the district court’s findings on the reasonableness of the amount are not clearly erroneous, the district court acted within its discretion in awarding respondent its fees and costs.

B. Personal liability

The district court awarded respondent attorney fees against appellant, but did not specify whether appellant was personally liable or liable only in his capacity as the responsible party or resident’s attorney-in-fact. At oral argument appellant asserted that the admissions contract does not provide for responsible parties being held liable for attorney fees.

The contractual provision states: “4.2 Collection costs. The Resident will pay the Facility for any collection costs on past due amounts payable pursuant to this Agreement, including reasonable attorneys’ fees.” Thus, the provision is silent as to a responsible party’s liability for collection costs. Therefore, appellant is not personally liable for respondent’s attorney fees as a result of his role as the responsible party.

But that does not end our analysis. Appellant signed the contract in two roles: as the responsible party and as his mother’s legal representative. Thus, we must determine whether appellant is liable for attorney fees arising out of his role as Mrs. Anderson’s attorney-in-fact.

An attorney-in-fact is an agent, one who stands in the shoes of a principal. Black’s Law Dictionary 1191 (7th ed.1999). Thus, an attorney-in-fact is not typically personally liable for his actions because he is not acting in his personal capacity. See Minn.Stat. § 523.21 (2004). But the statute does provide for personal liability of attorneys-in-fact in certain circumstances. Id. It states:

In exercising any power conferred by the power of attorney, .the attorney-in-fact shall exercise the power in the same manner as an ordinarily prudent person of discretion and intelligence would exercise in the management of the person’s own affairs and shall have the interests of the principal utmost in mind. The attorney-in-fact is 'personally liable to any person, including the principal, who is injured by an action taken by the attorney-in-fact in bad faith under the power of attorney.

Id. (emphasis added). Therefore, an attorney-in-fact can incur personal liability for attorney fees, but not without a finding of bad faith.

The district court did not -analyze the issue of attorney fees under this statute, so it is unclear whether appellant is personally liable for respondent’s attorney fees. If the district court finds that appellant acted in bad faith in his role as his mother’s attorney-in-fact, then he may incur personal liability for respondent’s attorney fees, under the admissions contract and the statute. But if the district court does not find that appellant acted in bad faith, only Mrs. Anderson’s estate is liable for respondent’s attorney fees.

Although the district court’s findings regarding the value of counsel’s work were not clearly erroneous, we remand for additional findings regarding the scope of appellant’s liability.

DECISION

Because the district court properly interpreted the law and found that the Minnesota responsible-party statute is applicable, we affirm. But because the district court failed to determine whether appellant misapplied his mother’s income, thereby incurring personal liability for her nursing-home costs, we remand for a determination on that issue. Also, because appellant cannot be held personally liable for respondent’s attorney fees in his role as the responsible party and because there is no finding that appellant acted in bad faith as his mother’s attorney-in-fact, it is unclear whether the district court intended that appellant be personally liable or whether Mrs. Anderson’s estate is liable for the attorney-fees award, and so we remand on that issue.

Affirmed in part and remanded.


author: DIETZEN, Judge.

text:
    Terrance R. MAGNUSON, et al., d/b/a WARROAD MARINE, Respondents, v. JOHN J. COSSETTE, d/b/a Spearfish Aviation, Inc., Appellant.
    No. A05-377.
    Court of Appeals of Minnesota.
    Jan. 17, 2006.

      Michael L. Jorgenson, Charlson & Jor-genson, P.A., Thief River Falls, MN, for respondents.
    Steven A. Nelson, International Falls, MN, for appellant.
    Considered and decided by PETERSON, Presiding Judge; RANDALL, Judge; and DIETZEN, Judge.
   OPINION

DIETZEN, Judge.

Appellant challenges the district court order and judgment denying his claim for riparian rights to the Warroad Marina Bay, and concluding that appellant’s property is burdened by a prescriptive easement and an easement by implication of necessity for use of a road across his property. Because we find that appellant’s property does not have riparian rights, and appellant’s property is burdened by an easement by implication of necessity but not a prescriptive easement, we affirm in part and reverse in part.

FACTS

Respondents Terrance, Margaret, and Kevin Magnuson own and operate the Warroad Marina on the south shore of Lake of the Woods near Warroad, Minnesota. Appellant John Cossette owns a recreational vehicle (RV) park located adjacent to, and directly north of, the marina. Both properties are located to the west of Lake of the Woods.

Marina Property

Prior to 1988, Robert Anderson, through a limited partnership, was the common owner of the land upon which both the marina and RV parcels are located. Anderson was also the previous operator of the WaiToad Marina. The marina property consists of three parcels: a triangular parcel east of the marina (east parcel), the marina parcel, and a rectangular parcel located north (north parcel) of a 75-foot channel (east channel) that runs easterly, and connects the marina bay to Lake of the Woods. The marina bay is located generally in the center of the three marina parcels and is available to lease for the mooring of watercraft.

A six-inch wide corrugated aluminum “sea wall” was constructed to prevent erosion of the shore-line of the marina bay and the north-bank of the east channel. The sea wall commences on the northwest point of the marina bay and follows the general contour of the bay, running approximately 113 feet north-south, and then east-west another 315 feet along the north bank. The sea wall comes within inches of the shoreline, but does not extend into or abut the water.

Anderson, as the operator of Warroad Marina, was required to perform periodic dredging of the marina bay and east channel to maintain navigability, and access to Lake of the Woods. The dredging operations consisted of transporting heavy equipment to the north parcel, dredging of a portion of the marina bay and east channel, placement of the dredge spoils on the north-bank of the north parcel, and transporting the dredge spoils to a remote, upland location for disposition. Anderson created a haul road to travel across the RV parcel that he owned for access to the north parcel. The haul road extended from the north bank of the north parcel through what is now the RV parcel and into a swamp area located in adjacent wetlands approximately 2 1/2 miles to the northeast.

Because the dredging operations required work in public waters, it was necessary for Anderson to obtain governmental permits. Anderson applied for permits from the United States Army Corps of Engineers (COE) and the Minnesota Department of Natural Resources (DNR) to perform the dredging maintenance work. In 1974, the DNR issued a permit authorizing the excavation, removal, and placement of the dredge spoils. In 1983, the DNR amended the permit to designate the location, and authorize the use of the haul road to perform the dredging operations. In so doing, the DNR’s regional hydrologist wrote to Anderson, indicating that the prior permit was inadequate to properly maintain the channel and amended the permit to allow Anderson to extend the haul road. In 1990, the COE issued a permit to re-authorize the dredging operations, which identified and located the haul road as a means to perform the dredging operations.

Beginning in 1982 or 1983, Anderson dredged the marina bay and east channel to remove the dredge spoils. The frequency of the dredging operations varied depending on the conditions resulting from wind and erosion; sometimes Anderson would dredge the channel two years in a row and other times two to three years would pass between dredgings. The haul road was used to gain access to the north-bank of the east channel to perform the dredging operations. Anderson indicated that at one point, he had dredged the east channel from the ice and removed the dredge spoils from the east, but such dredging was only possible “[i]f it’s done at the right time of the year where the ice conditions are just right.”

In October 1988, respondents entered into a three-year lease with Anderson to operate the marina. Two years later, in November 1990, respondents entered into an option to purchase the marina. In December 1990, respondents acquired by warranty deed the east parcel, and in June 1991, respondents acquired the marina parcel and the north parcel.

The deed for the marina parcel included a metes and bounds description of the marina, and referred to certain landmarks in describing its boundaries. The description of the northern border of the marina parcel, in pertinent part, reads:

Beginning at the Northwest Corner of said Lot One (1) ... thence South 88 degrees, 36 minutes, 51 seconds East 55.67 feet to an iron pipe monument; thence South 88 degrees, 36 minutes, 51 seconds East, 55.67 feet to an iron pipe monument on the Westerly line of an existing steel wall ... thence South 88 degrees, 42 minutes, 45 seconds East along said wall 314.56 feet....

(Emphasis added.) Anderson hired a surveying firm to perform a survey for the purpose of obtaining a legal description of the marina. The surveyor, who had 35 years of experience, was instructed by Anderson to include the sea wall in the legal description of the marina.

Respondents continued the maintenance of the marina, including dredging operations of the marina bay and east channel every year after their lease began in October 1988. Respondents dredged the marina bay and east channel, placed the dredge spoils on the north-bank of the north parcel, and transported the dredge spoils over the haul road to an upland area in accordance with the COE and DNR permits. The RV Property

Following commencement of operations of the Warroad Marina, Anderson constructed an RV park located north of, and adjacent to, the marina. The RV parcel abuts wetlands to the north; the north parcel, east channel and other wetlands to the east; the marina bay to the south; and other residential property to the west. The haul road generally transects the RV parcel in an east-west direction and provides access to the north parcel, which is located generally to the east. In 2000, Anderson entered into a contract for deed to sell appellant the RV parcel. In July 2003, appellant paid off the contract for deed and received a warranty deed from Anderson.

The legal description in the RV parcel deed uses the identical language to describe its south boundary as is used to describe the northern boundary of the marina parcel. The legal descriptions for both parcels were prepared by the same surveyor, who did not prepare a new legal description, but used the information obtained from the previous marina parcel survey.

When appellant purchased the RV parcel, he believed that he had riparian rights to use the marina bay and the east channel to access Lake of the Woods. Prior to executing the contract for deed, appellant had his surveyor locate the pins referenced in the legal description to the RV parcel; and appellant measured the boundary lines according to the metes and bounds description to the RV parcel. Based on his interpretation of the distances in the metes and bounds description, he concluded that the common property line of the RV parcel and the marina parcel was south of the sea wall, and extended into the water by approximately one foot.

Litigation

In 2002, appellant parked his boat in the marina bay along the sea wall south of the RV parcel. When respondents asked appellant to move his boat, he refused, claiming he had riparian rights.

In the spring of 2003, appellant attempted to block respondents’ use of the haul road by having a sheriff stop them from moving equipment across the road. Respondents filed a complaint seeking an injunction to prohibit appellant from parking his boat in the marina bay, and for compensation of unpaid slip fees. Respondents also sought and obtained a temporary court order allowing them to continue using the haul road. Respondents amended their complaint asserting that they had easement rights to use the haul road. Appellant counterclaimed alleging, inter alia, that he had riparian rights to the marina and seeking to prevent respondents from continuing to use the haul road.

At the bench trial, both Anderson and respondents testified that it was the intention of the parties that respondents would acquire the sea wall as part of the acquisition of the marina parcel. The surveyor who drafted the deed testified that he intended that the description of the sea wall had priority over the courses and distances language in the legal description. Anderson testified that it was not his intent to convey the sea wall with the RV parcel because he believed the sea wall was part of the marina parcel. But appellant testified that prior to entering the contract for deed, he told Anderson that his measurements established that the south boundary of the RV parcel extended into the waters of the marina bay. Appellant admitted that Anderson never stated that the boundary line was in the water.

Following trial, the district court ruled in favor of respondents, concluding that: (1) respondents have both a prescriptive easement and an easement by implication of necessity across the haul road running through the RV parcel; (2) respondents own the marina including the sea walls and embankments of the harbor and channel bordering the water; (3) appellant’s RV parcel does not include the sea walls or embankments of the marina harbor or channel; and (4) appellant trespassed onto respondents’ marina property by storing his boat in the marina water. The district court entered judgment in favor of respondents and against appellant for the trespass. This appeal follows.

ISSUES

I. Did the district court err in concluding that appellant is not entitled to riparian rights?

II. Did the district court err in concluding that respondents are entitled to an easement by prescription and easement by necessity?

ANALYSIS

On appeal, appellant contends that he has riparian rights and that respondents do not have an easement across his RV parcel. “The standard of review on appeal from a civil judgment is whether the evidence sustains the findings and whether the findings support the conclusions.” Minneapolis Pub. Hous. Auth. v. Greene, 463 N.W.2d 558, 560 (Minn.App. 1990). This court will not reverse the district court merely because we view the evidence differently. Rogers v. Moore, 603 N.W.2d 650, 656 (Minn.1999). Rather, we will reverse the district court’s findings of fact only if those findings are clearly erroneous or “manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.” Rogers, 608 N.W.2d at 656 (quotation omitted). On purely legal issues, this court is not bound by and need not give deference to the district court’s decision. Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn.2003).

I.

Appellant contends that he has riparian rights to the marina bay because the courses and distances language in his deed create a southern boundary that extends into the marina bay. Respondents contend that appellant does not have riparian rights because the deed description refers to a fixed object, the sea wall, and the boundary to appellant’s property only goes as far as the sea wall. Riparian rights are the rights to reasonably use the surface of waters abutting a parcel of real property. Johnson v. Seifert, 257 Minn. 159, 168-69, 100 N.W.2d 689, 696-97 (1960). A person does not own the water; rather, a person who owns a lakeshore or lakebed has the riparian right to use and enjoy the water. Pratt v. State, Dep’t of Natural Res., 309 N.W.2d 767, 772 (Minn.1981).

Appellant’s claim of riparian rights turns on whether his property ownership set forth in the deed extends to the waters of the marina bay. We discern the meaning of a writing, such as a deed, by looking at its language. See In re Application of Mareck, 257 Minn. 222, 226-27, 100 N.W.2d 758, 761-62 (Minn.1960). It is a long-settled rule that when identifying boundary lines, fixed and known monuments or objects called for in a legal description found in a deed prevail over given courses and distances; the order of application being first, to natural objects; second, to artificial marks; and, third, to courses and distances. Yanish v. Tarbox, 49 Minn. 268, 276-77, 51 N.W. 1051, 1051-52 (1892).

Here, the legal description in the deeds for the marina and RV parcels reference the property boundaries as running “to an iron pipe monument on the Westerly line of an existing steel wall” and “along said wall.” We believe the only reasonable construction is that the boundary for each property is the westerly, or landward side of the sea wall. Because the sea wall does not extend into the water, appellant has no riparian rights. Johnson, 257 Minn, at 168-69, 100 N.W.2d at 696-97.

Appellant, citing City of North Mankato v. Carlstrom, 212 Minn. 32, 35, 2 N.W.2d 130, 133 (1942), argues that the boundary must be determined by following the metes and bounds description from the “iron pipe monument” referenced in the deed. In Carlstrom, the Minnesota Supreme Court held that a stake can constitute a permanent monument from which to properly commence a survey of legal boundaries. Id. at 134. But this case is distinguishable. In Carlstrom, the deed referenced a surveyor’s stake marking the commencement point of the courses and distances description. Id. at 132. Here, the deed similarly refers to the “iron pipe monument” as a marker, but proceeds to describe the property as extending “along” the sea wall. The phrase “along said wall” modifies the metes and bounds description and takes precedence over the courses and distances described in the deed.

Our conclusion is also consistent with caselaw that requires us to consider the intent of the grantor. “In the last analysis, the call adopted as the superior and controlling one should be that which is most consistent with the apparent intent of the grantor.” Dittrich v. Ubl, 216 Minn. 396, 406, 13 N.W.2d 384, 390 (Minn.1944). Here, the intention of the grantor was that the sea wall be included as part of the marina. Because the grantor’s intent was that the appellant’s land should only extend as far as the sea wall, which did not abut the water, the district court did not err in concluding that appellant does not have riparian rights.

II.

Appellant contends that the district court incorrectly concluded that his property is burdened by an easement for a haul road that benefits respondents’ property for the purpose of conducting dredging operations of the marina bay and east channel. The district court concluded that respondents’ property was benefited by an easement by prescription and necessity across the RV parcel.

Easement by Prescription

Appellant contends that the facts are insufficient to support the district court’s conclusion that a prescriptive easement existed because the requisite 15-year time requirement was not met. A prescriptive easement grants a right to use the property of another based on prior continuous use by a party. See Romans v. Nadler, 217 Minn. 174, 181, 14 N.W.2d 482, 486-87 (1944). To establish a prescriptive easement, the claimant must prove by clear and convincing evidence that the use of the property that is actual, open, continuous, exclusive, and hostile for the prescriptive period of 15 years. Rogers, 603 N.W.2d at 657. The 15-year period for prescriptive easements begins with the open, hostile, exclusive, and continuous use of another’s property. See id. at 657.

Here, the district court found that respondents’ use of the haul road commenced in October 1988, when they first leased the marina; respondents have continued to use the haul road until appellant blocked it in the spring of 2003. Because the 15-year time period was not met, we conclude that the requirements for a prescriptive easement have not been met.

Easement by Necessity

Respondents contend that appellant’s property should be burdened by an easement implied by necessity. An easement implied by necessity is created when “(1) [there is] a separation of title; (2) the use of which gives rise to the easement shall have been so long continued and apparent as to show that it was intended to be permanent; and (3) that the easement is necessary to the beneficial enjoyment of the land granted.” Romanchuk v. Plotkin, 215 Minn. 156, 160-61, 9 N.W.2d 421, 424 (1943); Rosendahl v. Nelson, 408 N.W.2d 609, 611 (Minn.App.1987), review denied (Minn. Sept. 18, 1987). Except for the necessity requirement, these factors are only aids in determining whether an implied easement existed. See Olson v. Mullen, 244 Minn. 31, 40, 68 N.W.2d 640, 647 (1955).

To be “necessary,” an easement must be more than a mere convenience. Clark v. Galaxy Apartments, 427 N.W.2d 723, 727 (Minn.App.1988). But “[t]he easement need not have been indispensable to be necessary; rather, a reasonable necessity at the time of severance is sufficient.” Id. “The party asserting the easement has the burden of proving necessity.” Id. at 726. Obstacles such as topography, houses, trees, zoning ordinances, or the need for extensive paving, may create conditions where an easement is necessary. See Rosendahl, 408 N.W.2d at 611.

Appellant argues that the easement was unnecessary because the facts establish that the north bank of the east channel can be accessed across land presently owned by Anderson, the original grantor, or by water during the summer and by ice during the winter. But the question is not whether there are hypothetical alternative routes available; it is whether the haul road was reasonably necessary. See Clark, 427 N.W.2d at 727. The district court found that there is no other access to the north bank of the east channel for purposes of dredging and removing soil other than the haul road. While Anderson’s testimony shows that it may be possible to dredge the marina bay and east channel without use of the haul road, it was only possible if “done at the right time of the year where the ice conditions are just right.” The record does not show dredging from the ice was practicable or feasible every year. Both Anderson and respondent testified that the haul road was reasonably necessary to conduct the dredging operations. And the COE and amended DNR permits specifically authorize the haul road for dredging operations. Consequently, the district court did not err in concluding that the easement was necessary.

Appellant further argues that the easement was not known or apparent when he purchased the RV parcel in 2000. But we consider the use giving rise to an easement by implication of necessity at the time of the severance. Niehaus v. City of Litchfield, 529 N.W.2d 410, 412 (Minn.App.1995); see also Rosendahl, 408 N.W.2d at 611 (Minn.App.1987); Kleis v. Johnson, 354 N.W.2d 609, 611 (Minn.App.1984) (noting that the court determines whether to grant an easement by necessity based on the conditions of the property at the time that the landlocked land was originally conveyed). Conditions subsequent to the time of severance cannot serve as the basis for creating an easement by implication of necessity. Olson, 244 Minn, at 41, 68 N.W.2d at 647.

Here, the severance in title did not occur in 2000 when appellant entered into a contract for deed to purchase the RV parcel. Instead, the severance of title occurred in 1991, when respondents purchased the marina and related parcels. The district court found that the haul road was used by the grantor beginning in 1982 and was apparent and obvious, and intended to be permanent at the time of severance. The record reasonably supports the findings of the district court.

Appellant argues that because the easement for the haul road provides no reciprocal benefits to appellant’s property, i.e., no riparian rights, respondents are not entitled to an easement by necessity. Although an implied easement is an equitable doctrine, the elements for an easement by necessity do not include a reciprocal, separate benefit to the servient property. See Romanchuk, 215 Minn. at 160-61, 9 N.W.2d at 424 (elements of easement by necessity); Lake George Park, L.L.C. v. IBM Mid Am. Employees Fed. Credit Union, 576 N.W.2d 463, 466 (equitable doctrine). Therefore, appellant’s argument lacks merit.

Appellant further argues that his property should not be burdened by an easement by necessity because respondents did not join adjacent property owners in this suit to establish whether alternative easements were practical. In Nunnelee v. Schuna, this court upheld the district court’s denial of an easement by necessity where the claimant failed to join in the action parties that were “necessary for a fair and complete resolution of the plaintiffs’ claim for an easement by necessity.” 431 N.W.2d 144, 148 (Minn.App. 1988), review denied (Dec. 30, 1988). But the facts here are distinguishable. In Nunnelee, the purported easement extended across another parcel in addition to the appellant’s, and the owner of that parcel was not joined in the suit. Id. Here, there is no indication that the easement extends across parcels owned by parties other than appellant who are necessary for a fair and complete resolution of respondents’ claim for an easement. Therefore, respondents did not need to join additional parties in order to prevail on their easement claim.

Appellant argues that as a good-faith purchaser for value, his land should not be subject to an easement by necessity. Appellant suggests that respondents’ failure to record the easement relieves his property from the easement. But notice is not a requirement for an easement implied by necessity. See Romanchuk, 215 Minn. at 160-61, 9 N.W.2d at 424. Implied easements, by definition, are not recorded. See id. Therefore, the district court did not err in granting an easement by necessity to respondents.

DECISION

Because physical landmarks prevail over courses and distances in the legal description in a deed, appellant’s property does not extend into the waters and, hence, appellant does not have riparian rights to the marina bay. Further, the record supports the district court’s determination that respondents’ property includes an easement by implication of necessity for purposes of using the haul road for its dredging operations of the marina bay and east channel in accordance with the COE and DNR permits.

Affirmed in part and reversed in part.

      . The marina property is presently owned by respondents, and the RV parcel is owned by appellant.