Souhsiung Jack Chiu, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0739

Souhsiung Jack Chiu,
Appellant,

vs.

Timbershore Home Owners’ Association,
defendant and third party plaintiff,
Respondent,

vs.

New Horizon Homes, Inc.,
Third Party Defendant.

Filed January 16, 2018
Affirmed in part and remanded
Rodenberg, Judge

Dakota County District Court
File No. 19HA-CV-14-1026

Patrick K. Horan, Edina, Minnesota (for appellant)

Gerald H. Bren, Fisher Bren & Sheridan, LLP, Minneapolis, Minnesota (for respondent)

Considered and decided by Rodenberg, Presiding Judge; Worke, Judge; and Reilly,
Judge.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Souhsiung Jack Chiu appeals fro m the district court’s findings of fact,
conclusions of law, and judgment for respondent Timbershore Home Owners’ Association
after trial to the court. He argues that that the district court (1) erroneously concluded that
respondent’s inaction did not render it liable to appellant for trespass, (2) failed to follow
the law of the case, (3) misapplied the law, (4) made clearly erroneous findings, and
(5) erroneously excluded certain evidence from trial. We affirm in part, but remand to the
district court concerning respondent’s admitted liability for the expenses of maintaining
and repairing the water line that damaged appellant’s townhome.
FACTS
In 1973, appellant bought a townhome at 1261 Timbershore Lane in Eagan. His
townhome is part of a four-unit complex. The townhomes at Timbershore Lane are
managed by respondent Timbershore Home Own ers’ Association. Respondent owns an
easement for the sewer and water pipes that service the townhomes at Timbershore Lane.
The easement arose when the townhomes were constructed, and the easement grant is
contained in the following provision in the “D eclaration of Covenants, Restrictions, and
Easements” (the declaration):
Section 4. Sewer and Water Easement. Whereas, [New
Horizon Homes] has, or may, construct units with certain
sewer and water pipes . . . .

NOW THEREFORE, [New Horizon Homes] does
hereby declare that [Timbershore] and each dwelling unit and
the lot occupied thereby upon which [New Horizon Homes]

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has or does hereafter build is granted full and complete
easement and right to use such pipes and facilities. Full right
of access for maintenance and repair at reasonable hours is
hereby granted each dominant parcel and [Timbershore].
Expense of repair or maintena nce shall be common expenses
of [Timbershore].

The declaration granting the easement is si lent concerning liability for consequential
damages caused by the water-service lines.
Appellant sued respondent for trespass a nd negligence after a water-service line,
which runs under appellant’s townhome an d serves another unit, broke in 2011.
Respondent moved for su mmary judgment, which the distri ct court granted. Appellant
appealed and, in an unpublished opinio n, we reversed and remanded for further
proceedings, outlining the applicable law for trespass. Chiu v. Timbershore Home Owners’
Ass’n., No. A14-1994, 2015 WL 4523925 (Minn. App. June 29, 2015) ( Chiu I ). On
remand, the case was tried to the court, and the evidence at trial was as follows.
Appellant’s Testimony
In 1999, appellant had the City of Eagan shut off the water service to his townhome
because he lived in Utah for a period of ti me and then moved into his wife’s home in
Minneapolis. At first, appellant had some trouble getting the water turned off because the
water stop was covered by a cement slab. Ev entually, respondent removed the slab, and
the city was able to access th e water stop to turn off the water. Appellant had the water
turned on for a brief period in 2009, but then had it turned off again. Since getting married
in 1986, the longest appellant has stayed continuously at his townhome was for a few
months. During periods when he is not living there, appellant has returned to the townhome

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once every few weeks to pick up mail and maintain the property. His practice was to enter
the townhome each time and check both the upstairs and downstairs. Before October 11,
2011, appellant had never seen a water problem at his townhome. Appellant never made
any significant renovations to his unit.
Appellant learned that, on October 11, 2011, appellant’s neighbor, M.S., who
occupied the unit adjoining appellant’s town home (1255 Timbershore Lane) noticed that
there was water pooling in or near her laundry room, which shared a wall with appellant’s
townhome. M.S. called a plumber on October 11, 2011. The plumber, upon discovering
that M.S.’s living room carpet was soaked, determined that there was likely a leak. M.S.
and the plumber went outside in an attempt to locate the source of the leak. When she
passed appellant’s patio, M.S. saw water coming out by the sliding door. The plumber told
M.S. that she needed to call so meone to get inside that unit to deal with th e water. M.S.
testified at trial that she spoke to Mike O’Brien (respondent’s vice-president) at some point,
but could not remember if it was on the 11 th. One of the townhome occupants called
appellant to tell him about the water, and appellant soon arrived at the townhome. By the
time appellant arrived, there was also a city employee present.
Appellant went into his to wnhome, leaving the door open. According to appellant,
it looked like there had been a flood, with water throughout the downstairs area. M.S., who
was looking down from the landing near the fr ont door, saw standing water in the lower
level and water stains on the walls. She testified that the walls had “a green kind of line,”
which she thought was mold, but was not sure. Appellant tried turning on his faucet and,
when no water came out, he said he exclaimed, “It cannot be my water. . . . It’s not my

5
water.” The city water employee confirmed that water to appellant’s unit was turned off.
Appellant said he told the c ity water employee to “sound the alarm” the next morning to
help get the leak fixed. Appella nt testified that he did not k now what else to do at that
time, so he took down the te lephone numbers of M.S. and of respondent’s president and
vice-president, and returned to Minneapolis.
The next morning, on October 12, appella nt called respondent’s president, Leah
Lund, and left a voicemail message. He th en called O’Brien, who was unavailable that
morning, but who agreed to meet that aftern oon. Appellant and O’Brien later went into
appellant’s unit, where they found the wate r situation unchanged from the day before.
According to appellant, the sheetrock walls were wet above the waterline. He testified that
O’Brien said that the water could have been from a broken pipe, but did not say much else.
Appellant said that he pleaded with O’Brien to shut off the water, saying that it had to have
been the association’s water and not his own. No repairs were made then, and the leak
continued. Appellant and O’Brien left the townhome, and appellant went to city hall. At
city hall, appellant tried to get someone to come to his townhome, but he was told that
everyone had already gone home for the day. Appellant set up an appointment for someone
from the city to come to his townhome at 11:00 a.m. the next day.
Appellant went to his town home on Thursday, October 13, to meet the city water
employee. O’Brien also came to this meeting. According to appellant, the first thing the
city employee, Troy Hoepner, said was that th e water to appellant’s unit was still turned
off. Appellant testified that, at some point , it was determined that the water entering
appellant’s unit was coming from the service line to unit 1255. Appellant asked Hoepner

6
to turn off that line. Hoepner told appellant that he could not turn off the water line to 1255
without permission from the owner. Appellant returned to Minnea polis. Later that
evening, John Rand, a member of respondent ’s board, called appellant and told him to
come to the townhome at 8:00 a.m. the next day. Rand had arranged for a plumber to work
on the leak the next day.
On October 14, appellant arrived at his townhome at 7:30 a.m. He waited in his car
until 8:30 a.m., when a Pro Master Plumbing truck drove by and the driver went into M.S.’s
unit. According to appellant, other people also went into that unit. Appellant waited in his
car for a while, then went to the door of 1255. Eventually, O’Brien came out of 1255 and
told appellant to go into his own unit, and O’Brien and a num ber of others followed him
there. Appellant said that Rand was also pr esent, and another man introduced himself as
the association president. According to the plumber, Rand and Hoepner were also present
at this time.
Inside his townhome, appellant saw that the floor was still wet but that the water
had receded, which led him to believe that the water had been turned off. Jim Thompson,
the plumber from Pro Master, eventually came into appellant’s unit and tried to locate the
leak using a listening device. Thompson told appellant that the leak was in front of the
water heater. That afternoon, Thompson opened a hole in appellant’s floor near the water
heater using a jackhammer. However, the pi pe beneath that hole was not leaking.
Appellant told Thompson that he had earlier seen a bubble in front of the toilet, and, after
doing some measurements, Thompson jackhammered a second hole in front of the toilet;
however, the leak was not in that spot eithe r. After the second hole did not reveal the

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leaking part of the pipe, appellant said that Thompson put his hand into the second hole
and said that the leak was under the shower.
Once the leak’s location was verified, O’ Brien was called for permission to dig
another hole. Thompson then jackhammered the third hole. Thompson dug up a little bit
of dirt, cut out the pipe, and showed it to appe llant. Appellant testified that the pipe was
bent and deformed. Thompson also showed appellant a wooden stake. According to
appellant, Thompson believed th at the stake had been hamme red into the pipe during
construction 38 years earlier, causi ng the dent, and that a pinhole leak in the soft copper
pipe eventually got bigger. After finishing up on Friday, Octobe r 14, Thompson told
appellant that he would come back the next day for another look.
On Saturday, October 15, Thompson came back to appellant’s unit with Rand.
According to appellant, Rand did not speak to him. On the way out, Thompson told
appellant that someone would call him to fo llow up. However, appellant testified that
nobody associated with respondent called him. He also testified that he tried to follow up
with O’Brien and respondent’s president but received no answer for a long time. When he
did reach them, he was told to contact responde nt’s lawyer. Appellant said that when he
called respondent’s lawyer, he was asked to identify his own lawyer. According to
appellant, respondent never offe red to repair the holes, but did pay for the plumber who
repaired the leak; appellant agreed that he did not personally pay anyone for work related
to repairing the leak. The holes remain in the floor of appellant’s unit.

8
Rand’s Testimony
Rand testified that he first learned of the leak from O’Brien on Wednesday,
October 12, and that he went out to appella nt’s townhome to look at the damage.
According to Rand, Hoepner was also present. Rand testified that they saw four inches of
standing water and mold starting to grow in appellant’s basement. According to Rand,
Hoepner told them that they could not turn off the water for another unit absent permission
from the other owner. Hoepner gave Rand contact information for Water Conservation to
help locate the leak, and Rand said that he set up appointments for both a plumber and
someone from Water Conservation to come to fix the leak. Rand testified that he was not
aware of any other breaks in water pipes servicing the Timbershore townhomes, except for
outside lines. Regarding those lines, Rand explained that generally a plumber will come
out and repair the pipe but that the associat ion never pays for repa irs inside the homes;
those are up to the homeowner. He also agreed that respondent did not intend to perform
any pipe maintenance in the absence of a problem with a pipe.
According to Rand, the only other time that he went to appellant’s townhome was
on October 15, when Thompson showed him the holes in appellant’s basement and
explained where the leak had been. Rand also testified that, at a later meeting, respondent
decided to make an offer to repair the holes and shower surround in appellant’s basement,
and that respondent’s legal coun sel verbally conveyed that offer to appellant. According
to Rand, appellant did not accept that offer.

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At oral argument, respondent’s counsel agr eed that it is respondent’s obligation
under the declaration to patch the holes in a ppellant’s unit that were necessary to allow
respondent to access and repair the water line.
Thompson’s Testimony
Thompson testified at trial th at air-pressure testing may have revealed the pinhole
leak in the pipe before a larger leak occurred. However, he also testified that he does not
usually advise clients to test service pipes. Testing would only find an existing leak; it
would not predict future leaks or where they would occur. Thompson also testified that it
would be unrealistic to test all water-service lines regularly. He tes tified that there is no
industry standard that requires preventive-maintenance testing on water-service lines.
Schrantz’s Testimony
Anthony Schrantz of Water Conservation Se rvices, Inc., testified that some cities
hire him to proactively test their water-service lines, but that he has never done such testing
for a private consumer. Such testing woul d usually cost several thousand dollars to
complete. Schrantz also testified that pipes can last a long time without maintenance, and
that there is no industry standard requiring preventive testing of water-service pipes.
Expert Testimony
Three experts testified to th e extensive repair and remedi ation work that would be
required to restore appellant’s townhome to its condition before the leak. One of
appellant’s experts testified that the repairs would have cost about $49,006 at the time he
inspected the unit in July of 2012. Both experts who testified for appellant agreed that the
cost and amount of work would have been much lower if the townhome had been repaired

10
sooner. Respondent’s expert estimated that the cost of repairs would have been $18,115 if
repairs had been completed within a few days of the leak.
The district court issued written findings of fact and conclusions of law, concluding
that respondent was not liable for appellant’s claimed damages, and it dismissed appellant’s
complaint with prejudice. Appellant moved for amended findings and for a new trial. The
district court denied the new-trial motion and amended several of its earlier factual
findings. The amended findings did not alter the district court’s disposition.
This appeal followed.
D E C I S I O N
Appellant challenges the district court’s fa ctual findings, its application of the law,
its evidentiary rulings at trial, and its ultimate disposition.
A district court’s “[f]indings of fact, whether based on oral or documentary
evidence, shall not be set asid e unless clearly erroneous, and due regard shall be given to
the opportunity of the trial court to judge the credibility of th e witnesses.” Minn. R. Civ.
P. 52.01. In reviewing a district court’s fi ndings and conclusions, we consider “whether
the district court’s findings were clearly erroneous and whether the district court erred as a
matter of law. A finding is clearly erroneous if we are left with the definite and firm
conviction that a mistake has been made. We review issues of law de novo.” In re Distrib.
of Attorney’s Fees between Stowman La w Firm, P.A. & Lori Peterson Law Firm , 855
N.W.2d 760, 761 (Minn. App. 2014) (quotation and citations omitted), aff’d, 870 N.W.2d
755 (Minn. 2015).

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I. The district court properly applied the law of the case and properly concluded
that respondent is not liable for trespass on the facts as it found them.

Appellant argues that the district court fa iled to follow the law of the case on
remand. Consequently, he argues that the district court erred in concluding that respondent
is not liable to him in trespass.
The law-of-the-case doctrine “applies where an appellate court has ruled on a legal
issue and has remanded the case to the lo wer court for further proceedings.” Mattson v.
Underwriters at Lloyds, 414 N.W.2d 717, 719-20 (Minn. 1987). “The doctrine provides
that ‘when a court decides upon a rule of law, that decision should continue to govern the
same issues in subsequent st ages in the same case.’” Matter of Welfare of M.D.O. , 462
N.W.2d 370, 375 (Minn. 1990) (quoting Arizona v. California, 460 U.S. 605, 618, 103 S.
Ct. 1382, 1391 (1983)).
In Chiu I, we reversed the district court’s grant of summary judgment to respondent
because we determined that “[t]he district court . . . erred by concluding that [appellant]’s
negligence claims fail for lack of a duty.” 2015 WL 45239 25, at *6. We recognized that
“an easement holder has a common-law duty to maintain and repair the easement and not
to misuse the easement.” Id. We then explained that there was a genuine issue of material
fact concerning whether respondent breached that duty. Id. We also concluded that the
district court erred in granting summary j udgment to respondent on the trespass claims
based on appellant’s failure to prove an intentional intrusion. Id. at *8. We stated that the
Minnesota Supreme Court has recognized se veral ways in which a trespass may be
committed, including intentionally failing to remove intruding matter when the defendant

12
either has a duty to do so or tortiously caused the intrusion in the first instance. Id. at *6-
7. We specifically referenced the Restatem ent (Second) of Torts §§ 158(a), 158(c), and
161 (1965). Id. at *6-7. We reversed the district court’s grant of summary judgment and
remanded for further proceedings. Id. at *8.
Appellant argues that the district court failed to apply the legal standards identified
in our earlier opinion regarding both duty and trespass. From our review, the district
court’s findings of fact and conclusions of law indicate that it correctly applied the law as
identified in Chiu I; the district court’s findings assessed trespass through the three
Restatement provisions as we directed in that earlier opinion.
A. The district court did not err in analyzing appellant’s trespass claims
under the Restatement (Second) of Torts § 158(a).

Restatement (Second) of Torts § 158(a) stat es that a person is liable for trespass if
he intentionally “enters land in possession of the other, or causes a thing or a third person
to do so.” A person acts intentionally when he either desires his act to lead to an intrusion
or is substantially certain that an intrusion will result from his act. Victor v. Sell, 301 Minn.
309, 313, 222 N.W.2d 337, 339 (1974); Restatement (Second) of Torts § 158 cmt. i (1965).
Appellant argues that respondent’s plan to withhold maintenance on the water lines
until there was a leak proves in tent to cause water to enter the townhomes. The district
court found no intent to cause water to enter appellant’s unit. The record supports that
finding.
There is no evidence in the record indicating that respondent desired a leak to occur,
and there is no evidence that the district c ourt was bound to accept establishing that

13
respondent was substantially certain that waiting to perform ma intenance until it was
necessary would cause a leak. The district court did not err in concluding that respondent
is not liable in trespass under Section 158(a) of the Restatement based on its finding of no
intentional entry by respondent, which finding the record supports.
B. The district court did not err in analyzing appellant’s trespass claims
under the Restatement (Second) of Torts § 158(c).

The district court also considered the Restatement (Second) of Torts § 158(c), as we
directed in Chiu I. That section provides that a person is liable for trespass if the person
“intentionally . . . fails to remove from the land a thing which he is under a duty to remove.”
The district court concluded that respondent is not liable to appellant for failing to remove
the water. Appellant argues that respondent, as the holder of an easement over the water-
service lines, had a duty to maintain the lines and failed to remove the water by
intentionally failing to turn off the water as soon as possible after being notified of the leak.
In Chiu I, we stated that there was a fact is sue concerning whether respondent is
liable under section 158(c) for breach of a common-law duty to remove the water by
intentionally failing “to turn off the water supply to the leaking pipe.” 2015 WL 4523925,
at *7. The district court recognized respondent’s common-law duty to maintain and repair
its water line. However, the district court found as a fact that respondent did not
intentionally fail to remove the water or turn off the water supply. The district court found
that respondent “acted promptly and reasonably to locate and repair the pipe,” even though
the water was not immediately turned off. Th e record evidence suppo rts this finding of
reasonableness.

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On October 11, the leak was believed to be coming from appellant’s unit and his
water-service line, which the on-site city water employee said was turned off. The next
time a city employee was at the townhome was when Hoepner came on October 13. It was
then discovered that the leak may have been coming from th e line servicing M.S.’s unit,
but Hoepner was not authorized to turn off that line without the owner’s permission. There
is no evidence in the record that M.S. had given permission to have the water service to her
unit turned off at that point in time. 1 Appellant testified that the water in his townhome
had receded by October 14, which led him to be lieve that the leaking water line had been
turned off between when he left on October 13 and when he returned on October 14. Based
on this timeline and the evidence in the record, the district court’s finding that respondent
did not intentionally and unreasonably dela y by not immediately turning off the water-
service line causing the leak is not clearl y erroneous. The voluminous and conflicting
evidence might have led to different findings, but examining possible alternative findings
is not our proper role; we consider whether the record supports the findings that the district
court made—and it does. See M.D.O., 462 N.W.2d at 374-75. We see no error in the
district court’s application of the law to the facts as it found them.
C. The district court did not err in analyzing appellant’s trespass claims
under the Restatement (Second) of Torts § 161.

Finally, the district court considered the Restatement (Second) of Torts § 161, which
states that “[a] trespass may be committe d by the continued pres ence on the land of a

1 M.S. is not a party, and no claims are asserted against her by any party. The record reveals
little concerning whether and when her permission was sought concerning turning off the
water to her unit.

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structure, chattel, or other thing which the actor has tortiously placed there, whether or not
the actor has the ability to remove it.” If there was no initial tortious trespass by respondent,
it cannot be liable for tres pass under section 161. Victor, 301 Minn. at 314, 222 N.W.2d
at 340.
As we noted in Chiu I, a trespass under section 161 may be found if the initial entry
is the result of an intentional act, a negligent act, or a neglig ent failure to act. 2015 WL
4523925, at *7. Because the district court found no intentional tr espass, as discussed
above, appellant’s section 161 claim depends on proof of negligence.
To succeed on a negligence claim, appellant must prove “(1) the existence of a duty
of care, (2) a breach of that duty, (3) an injury, and (4) that the breach of the duty of care
was a proximate cause of the injury.” Domagala v. Rolland, 805 N.W.2d 14, 22 (Minn.
2011). A duty is an obligation “to conform to a particular standard of conduct.”
Minneapolis Emp. Ret. Fund v. Allison-Williams Co., 519 N.W.2d 176, 182 (Minn. 1994).
Generally, the standard “is that degree of care which a reasonably prudent person would
exercise under the same or similar circumstances.” Id. What constitutes reasonable care
varies depending on the circumst ances of each individual case. Otto v. City of St. Paul ,
460 N.W.2d 359, 361 (Minn. App. 1990). “The question becomes what was the character
and extent of the respondents’ duty under the[] circumstances.” Id. In Otto, we stated that
“[a]n essential element of neg ligence is the actor’s knowledge, actual or imputed, of the
facts out of which the alleged duty arises.” Id. at 362 (quotation omitted). Because the
respondents in Otto neither knew nor should have known of the defects in a sewer system,

16
we concluded that they were not responsible for the collapsing street resulting from a leak
in the sewer system. Id.
While reasonable care in maintenance an d operation of appliances generally
imposes an obligation to make reasonable peri odic inspections of those appliances, there
are circumstances where it is not reas onable to require such inspections. Segal v. Bloom
Bros. Co., 249 Minn. 367, 373, 82 N.W.2d 359, 363 (1957). No routine inspection and
maintenance is required when “periodic inspection would be ineffective and a continuous
inspection would be impractical and unreasonable.” Bassett v. Rybak, 294 Minn. 505, 506,
200 N.W.2d 399, 401 (1 972). These cases stand for the proposition that only reasonable
inspections are required and reasonable care may not require an inspection when it would
be unlikely to reveal a defect or would require an unreasonable amount of effort to conduct
on a regular basis, absent some prior notice of a defect.
Respondent had no notice of either a leak or any damage before water was
discovered in appellant’s unit. While respondent did not perform any testing or preventive
maintenance on the water-service lines, the record supports the district court’s factual
finding that there is no industry standard requiring or even recommending preventive
maintenance on the water-service lines. Thom pson testified that it is unrealistic to
routinely test and inspect underground water-s ervice lines. Even if detection were
attempted using a listening device, nothing would be found unless and until a leak existed.
Schrantz testified that it would cost thousands of dollars to conduct such tests, and that
water-service lines can last up to or even more than a hundred years without any
maintenance.

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The scope of respondent’s duty presented factual questions of reasonableness. On
this record, the district court’s findings co ncerning the scope of respondent’s duty (to
maintain the easement) are not clearly erroneous. The record evidence supports the district
court’s findings and its conclusion that resp ondent did not tortiously cause the water to
enter appellant’s townhome.
Because we discern no error in the district court’s findings of fact or in its conclusion
that respondent did not breach a duty and is not liable for trespass or negligence, we do not
reach the questions raised by appellant concerning causation, the burden of proof, or
damages.
D. The district court did not fail to follow the law of th e case regarding
extrinsic evidence.

Appellant argues that the district court fa iled to follow the law of the case when it
considered memoranda and advisories distri buted by respondent to townhome owners.
Chiu I held only that the extrinsic evidence could not be used to limit respondent’s liability.
2015 WL 4523925, at *5. The only place that these extrinsic documents are mentioned in
the district court’s analysis is in its discussion of appellant’ s failure to mitigate damages.
Even there, the district court did not use the documents as dispositive of any legal issue or
as a limit on respondent’s liab ility; rather, the district cour t observed that the documents
indicated that appellant was aware that res pondent took the position that it was not liable
for any damage to townhome interiors. The district court found th at respondent was not
liable, and then found, relying on the memoranda and advisories, that appellant had failed

18
to mitigate his damages even if respondent were liable. The district court did not fail to
apply the law of the case regarding extrinsic evidence.
II. The district court’s findings of fact are not clearly errone ous nor would they
change the result of this case.

We will set aside a district court’s findings of fact only if they are clearly erroneous.
Minn. R. Civ. P. 52.01. In applying this rule, “we view the record in the light most
favorable to the judgment of the district court.” Rogers v. Moore, 603 N.W.2d 650, 656
(Minn. 1999). “Findings of fa ct are clearly erroneous only if the reviewing court is left
with the definite and firm conviction that a mistake has been made.” Fletcher v. St. Paul
Pioneer Press , 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted). “If there is
reasonable evidence to support the district c ourt’s findings, we will not disturb them.”
Rogers, 603 N.W.2d at 656. Moreover, “where th e decisive facts found by the trial court
are sustained by the evidence, this court need not discu ss specifically other proposed
findings of fact which would not change the result.” Agner v. Bourn, 281 Minn. 385, 398,
161 N.W.2d 813, 821 (1968). Erroneous findings or omitted findings that are not
controlling on the outcome of the case “are harmless and do not necessitate a reversal nor
would any useful purpose be served by remanding the case for corrected or additional
findings.” State by Burnquist v. Bollenbach , 241 Minn. 103, 110, 63 N.W.2d 278, 283
(1954).
Appellant challenges a number of the district court’s findings of fact, arguing that
they are clearly erroneous and require reversal. Upon review, all of the challenged findings
are supported by the record evidence. While appellant challenges the district court’s

19
having credited respondent’s witnesses over his own, credibility determinations are within
the province of the district court. Goldman v. Greenwood, 748 N.W.2d 279, 284 (Minn.
2008). Moreover, none of the challenged findings, even if clearly erroneous, would cause
us to reach a different conclusion on the i ssue of respondent’s lia bility, which was, as
discussed, resolved on the basis of respondent’s duty. The district court found no breach
of duty. As such, no “useful purpose [would] be served by remanding the case for corrected
or additional findings,” in any event. Burnquist, 241 Minn. at 110, 63 N.W.2d at 284.
III. Under the declaration, respondent is liable for the maintenance and repair of
the water-service line, but not for consequential damages.

“The operative documents that govern a townhome association constitute a contract
between the association and its individual members.” Swanson v. Parkway Estates
Townhouse Ass’n, 567 N.W.2d 767, 768 (Minn. App. 1997). As we noted in Chiu I, claims
for damages to an individual unit in an association are usua lly brought under a contract
theory, based on the governing declaration or statute. 2015 WL 4523925, at *3. Here, the
declaration grants respondent an easement to access and maintain the water-service lines,
but is silent on respondent’s responsibility for consequential damages to the individual
units. Appellant asserted no contract claims for consequential damages. Appellant makes
no claim that respondent is statutorily liable for these damages. His only claims are that
respondent is responsible for the “mainten ance and repair” of the water-service line and
therefore liable to him in trespass and negligence, as discussed.
Despite the foregoing discussion, the decl aration’s statement that respondent is
responsible for the “maintenance and repair” of the water-service lines entitles appellant to

20
relief from respondent for the three holes that were jackhammered in the lower level of his
townhome. The holes were necessary to repa ir the leaking pipe. Respondent’s counsel
conceded at oral argument that respondent is responsible under the declaration for the
expense of repairing the holes opened to fix the water-service line. The state of the record
is that respondent agrees that it must fix the holes and has not yet done so (or had not done
so according to the record when transmitted). Accordingly, we remand to the district court
to resolve that remaining issue as appropriate.
Affirmed in part and remanded.