Summary
upholding finding that a fee owner purportedly using a 10' x 22' office on its own 116,000 square foot rental property was not entitled to notice under Minn. Stat. § 580.03 where the district court's finding that the owner was not "in possession" under Minn. Stat. § 580.03 was not clearly erroneous
Summary of this case from Matter of Pdeutsche Bank Trust Co. v. SouzaOpinion
No. C2-84-1515.
January 29, 1985.
Appeal from the District Court, Sherburne County, Harold J. Dahl, J.
Felix Mannella, Steven G. Thorson, Babcock, Locher, Neilson Mannella, Anoka, for Becker Sons Const.
Mark W. Bay, Peterson, Engberg Peterson, Minneapolis, for Community State Bank of Princeton.
William G. Clelland, Carson Clelland, Minneapolis, for Norwest Bank Camden.
Heard, considered and decided by CRIPPEN, P.J., FORSBERG and RANDALL, JJ.
SUMMARY OPINION
FACTS
Becker Sons is the fee owner of property mortgaged to respondents. Howard L. Becker testified that Becker Sons moved a construction trailer onto the property on September 12, 1983 and occupied the trailer until January 1984, when it moved into an office in the building it was constructing on the property. Becker also testified that the office in the building was Becker Sons' principal office, although it also had an office in his home, that Becker Sons occupied the office throughout the work day, four to seven days a week, and that Becker Sons or its officers had never been served with the notice of the mortgage foreclosure sale.
Becker also testified that the majority of the 116,000 square feet in the building was used by a bus refurbishing company, which paid rent for the building. Becker Sons occupied an office only 10' x 22', and there was no sign on the door indicating that it belonged to Becker Sons. The sign on the building identified Becker Sons only as the contractor, and did not indicate Becker Sons had any office there. Becker admitted there were no business cards, phone book listings, or other published materials indicating it was the office of Becker Sons. Becker was the only person to testify.
The trial court found that Becker Sons was not a "person in possession of the mortgaged premises" and was therefore not entitled to notice under Minn.Stat. § 580.03.
DECISION
The law on this question is settled. The only disagreement between the parties is on the facts and the interpretation of those facts; that is, was Becker Sons' "occupancy" of the building sufficient to make it a "person in possession of the mortgaged premises?"
The trial court determined that the occupancy was sporadic and incidental; appellant contends it was sufficient to make Becker Sons an owner in possession. The court, as factfinder, was entitled to make its own determination of credibility, and its findings may not be overturned unless they are clearly erroneous. City of Minnetonka v. Carlson, 298 N.W.2d 763 (Minn. 1980). It was not "clearly erroneous" for the trial court here to conclude, from Becker's testimony, that Becker Sons' occupancy was not sufficient to place it "in possession."
Affirmed.