Kevin Chouanard, et al., Respondents,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1733

Kevin Chouanard, et al.,
Respondents,

vs.

Oak Lake Construction, Inc., et al.,
Defendants,
Huepenbecker Construction,
Appellant.

Filed July 22, 2019
Affirmed
Florey, Judge

Hennepin County District Court
File No. 27-CV-17-9256

James D. Knudsen, Anthony S. Morris, Stich, Angell, Kreidler & Unke, P.A., Minneapolis,
Minnesota (for respondents)

Scott R. Timm, Timm Law Office, Waconia, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Florey, Judge; and Cochran,
Judge.

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U N P U B L I S H E D O P I N I O N
FLOREY, Judge
In this construction-defects lawsuit, commenced by respondents Kevin and Melinda
Chouanard against appellant Huepenbecker Construction 1 and other co ntractors that
worked on a home -remodeling project, appellant challenges a district court order finding
that it breached an implied warranty of fitness for purpose, and is liable for $9,527.60 in
damages. We affirm.
FACTS
Between the fall of 2006 and summer of 2007, respondents engaged with separate
contractors to construct a deck, screen porch, and carpentry room for their two -story
residence. The carpentry room was to be used as a shed for storage and general shop-type
work. The different contractors, including appellant, were each assigned to construct
different parts of the addition. Respondents did not hire a general contractor to oversee the
project.
Of the various contractors, Prairie Creek Builder drew up the architectural plans for
the project; Jeremy Boes on handled the foundation block work and constructed a cement
block wall; Oak Lake Construction provided all the carpentry work and presented the
proposed plans to the city; TCR provided masonry work, including the cultured stone
veneer on the outside of the project; and appellant installed a rubber membrane between
the enclosed carpentry room and the deck above it. Respondents paid all of the contractors

1 Because appellant was not yet a corporation at the time of the incident, our reference to
appellant in this decision refers to the entity’s principal rather than the corporate entity.

3
in full for their wo rk on the project. Respondents did not have any background in
construction. They relied on the expertise of the separate contractors to provide a safe,
reasonably built, defect-free addition to the home.
Sometime after the completion of the addition, res pondent Kevin Chouanard
(Chouanard) insulated the walls of the carpentry room. His reason for adding insulation
was to provide some heat during the winter months. He had prior experience insulating a
wall, but he did not have any training in the procedure, nor did he get a permit. Chouanard
also installed a vapor barrier of polyurethane, and caulked the barrier’s edges.
Respondents did not observe any issues with the addition to their home until
November 2016 while they were in the process of removing stairs leading to the deck.
Respondents had removed the stairs, as well as stone planters connected to one of the
deck’s plinths. 2 During this process, respondents observed what appeared to be water
damage in the plinth previously connected to the stone planter. Respondents hired Collins
Forensics to investigate the water damage.
On November 15, 2016, and December 29, 2016, Collins F orensics performed a
site-visit to investigate the water damage, focusing on the deck and the walls of the
carpentry room. Meanwhile, on November 23, 2016, respondents contacted appellant and
the other contractors, notifying them that they had discovered “construction defects related
to the work [they] performed relative to the addition project.” Respondents requested that
the contractors “immediately repair the damages caused by [their] deficient work.” On

2 As described by respondents’ expert witness, Collins Ofori -Amanfo, at trial, plinths are
“the extensions of the columns above the deck.”

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December 16, 2016, respondents initiated a laws uit against appellant and the other
contractors.
In January 2017, Collins Forensics completed its investigative report o n the water
damage. The report concluded that “[t]he deterioration was the result of condensation of
interior moisture in the uncondit ioned carpentry room,” and that the “moisture/water
damage in the exterior walls and plinths appear[ed] to have begun soon after the addition
and the landscape improvement were completed, and ha[d] continued since that time.” The
report identified errors by the contractors that “contributed to the rising moisture/humidity
and condensation within the unconditioned space,” and it offered recommendations for
repair.
Respondents hired CRJ Construction to repair the water damage. At the
recommendation and under the guidance of Collins Forensics, CRJ replaced the south wall
of the carpentry room , installed ventilation in various parts of the addition, and
reconstructed the plinths, stone, and railings. The cost of the investigation and repairs
totaled $47,638.
In May 2018, a court trial was held. Respondents called Chouanard and their expert
witness, Ofori-Amanfo, to testify. Appellant testified in his own defense. 3 At the start of
trial, appellant requested that the court strike from evidence copies of CRJ’s invoices.
Appellant argued that the invoices were “pretty vague,” that there was “no proposal or
anything saying what [CRJ] fixed,” and that CRJ was not present for cross-examination.

3 Appellant represented himself at trial. Because appellant was not yet a corporation at the
time of the incident, appellant was permitted to represent himself without counsel.

5
Respondents’ attorney argued that, because appellant failed to participate in pretrial
discovery, the court should preclude appellant from challenging any evidence and offering
any witness testimony or exhibits. The district court took the partie s’ motions under
advisement, explaining that it would decide the motions as part of its order.
Ofori-Amanfo, principal engineer and project manager of Collins Forensics,
testified as respondents’ expert witness. He testified that he had over 30 years of
experience working as an engineer. As part of his experience, he had investigated over
3,000 structures, including residential and commercial buildings, and had worked on
projects for both plaintiffs and defendants. His experience also included providing
assistance and guidance to construction companies in various repair projects.
Ofori-Amanfo explained his investigatory process. He testified that his first site
visit to respondents’ residence was in November 2016. He testified that, during his initial
visit, he observed a “significant growth of fungus and water damage within the plinths.”
He recommended, during the visit, that respondents contact the contractors and invite them
to look at the damage before he engaged in further investigatory work.
Ofori-Amanfo testified that, a s part of the investigative process, he took several
photographs of the addition that was constructed by the various contractors. He then
prepared a report with his opinions of the cause and extent of the damages, as well as
recommendations for repair.
Ofori-Amanfo testified that his investigation revealed “water damage within the
plinths and also on the walls, particularly the south wall.” He testified that he believed the
damage was “caused by moisture or water,” specifically, “condensation of interior moisture

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on the walls.” He explained that the condensation was caused by natural moisture, such as
people breathing inside the carpentry room. He testified that he was very familiar with this
type of damage, explaining that he had observed damage caused by interior condensation
“about a thousand times,” and that he had published on similar issues.
Ofori-Amanfo testified that the addition, including the roof and plinths, should have
been ventilated in order to release interior moisture. He testified that the process of
installing ventilation was straight-forward and brief, taking “no more than five minutes to
30 minutes.” He testified that, regardless of the trade —whether it is a block trade, wall
trade, carpentry trade, or roofing trade —all trades “should take steps to accommodate for
moisture in making sure that moisture with whatever the work the y do is eliminated.” He
further testified that implied in building codes is the requirement that contractors and
subcontractors undertake their work in a manner that is defect -free, without relying on
building officials to check their work.
During his tes timony, Ofori -Amanfo offered his opinion as to which particular
contractors were at fault. With regard to appellant’s work, Ofori -Amanfo testified, “I
would assign like about 35 percent to the membrane.” He testified, “[M]ost of the venting
needs to go through the membrane on the decking.” He explained:
All the moisture within the building, because of the warmth or
the heat within that moisture, it forces the moisture to rise up.
And then when it gets to the top, we have the water -proofing
membrane or th e deck or the ceiling that provides like an
umbrella and it holds the moisture up. And then if it is trapped
there for a long time and it is cooled, then, it condenses. And
also as it condenses, we have frost that develops, and when the
frost falls, then w e have water. It is that water that then does
the damage that we see here in the walls.

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He testified that he would “not assign any percentage to whoever installed the insulation.”
On cross-examination, Ofori-Amanfo conceded that the ceiling membrane did not
have any leakage nor did it contain any moisture. He testified that the “membrane material,
itself, was good.” He also elaborated on why the south wall accumulated more moisture
than the other walls of the carpentry room. He explained, “ [T]he east wall is below the
porch . . . and there’s a roof over that, and that wall is protected from the water that may
accumulate in the soil along the wall,” and “you have walls on the other sides of the east
wall” so “[t]here isn’t as much cold accumulating or b uilding up along that east wall, as
you have on the south wall, which is exposed.” He explained, “[I]f you look at the east
wall, which is below an enclosure, we don’t have this cyclic frosting and melting, because
the sun is not hitting that east wall as it does on the south wall.”
Ofori-Amanfo disputed appellant’s allegations that Chouanard’s insulation of the
carpentry room caused the water damage. He explained, “It has nothing to do with the
insulation. If anything, it would have been a help.” Ofori-Amanfo also challenged
appellant’s interpretation of the building code and his understanding that the code did not
require the roof to be ventilated.
Appellant testified that he had been in the roofing business for 40 years, that he had
worked on hun dreds of r oofing projects, and that he had never before been sued for any
job he had done. Appellant disputed Ofori-Amanfo’s position that he should have included
ventilation, and testified that the damages were caused by Chouanard’s insulation of the
carpentry room—making respondents 80 percent at fault. He testified that respondents

8
“didn’t pull any of the proper permits,” and alleged that, had they done so, “maybe some
of this stuff would have been done right.”
In August 2018, the district court issu ed an order wherein it ruled on the parties’
pretrial motions and, overall, found in favor of respondents. With regard to respondents’
pretrial motions, the district court ruled that (1) respondents’ motion requesting the court
preclude appellant from off ering any exhibits was moot “[s]ince [appellant] offered no
exhibits—other than the [c]ourt [e]xhibit proving that [his] namesake company was
incorporated after the events at issue”; (2) respondents’ motion requesting the court
preclude appellant from offering any witness testimony was denied “to the extent that it
[sought] to prevent [appellant] from calling himself as a witness . . . [and] moot in all other
respects”; and (3) respondents’ motion requesting the court preclude appellant from
challenging any evidence was denied.
The district court sustained appellant’s pretrial motion to strike the invoices from
CRJ Construction as inadmissible hearsay. However, the district court ruled that, even if
the underlying invoices were inadmissible, it could “rely on Mr. Chouanard’s first -hand
testimony” about the work performed and the associated payments he made. It stated,
“Since Mr. Chouanard’s testimony came in by referencing the invoices . . . the [c]ourt will
consider [them] to be a demonstrative court exhibit, but will not rely on any of the
information printed on those invoices as evidence.”
With regard to its findings of fact, the district court found the testimony of
respondents’ expert witness, Ofori -Amanfo, to be credible. It found “[Ofori -Amanfo], a
professional engineer with an advanced degree in civil engineering from the University of

9
Minnesota, and a bachelor’s degree in the same discipline from the University of Science
and Technology, Ghana, to be credible on the point of ventilation and the appropriate
standard.” It found that Ofori-Amanfo had “no direct interest in [the] litigation, he [was]
a credentialed civil engineer, and his conclusions were supported by photographic evidence
as well as his written expert opinion.”
In contrast, the court found appellant to be “an interested defendant.” It stated that,
“while the [c] ourt [did] not doubt his experience or practical expertise, he lack[ed] any
formal training as a forensic engineer.” The court further noted that, because appellant
“did not seek to be qualified a s an expert witness[,] . . . his testimony was received as a
knowledgeable fact witness.”
With regard to damages, the district court concluded that “[respondents’] cost to
investigate and cost to repair [were] recoverable.” It found that “[a]ll repairs were done
consistent with the recommendations of Collins Forensics . . . [and] that they were
reasonable and necessitated by the water damage at issue in [the] litigation.” It found the
total damages were $47,638.
While the district court found that Ofori -Amanfo’s testimony established that
appellant’s work “was a contributing factor to the damage,” it did not “entirely accept
[Ofori-Amanfo’s] opinion on the allocation of fault.” It concluded:
Taking into account all of the testimony, including [Ofori -
Amanfo’s] credible expert opinion that the waterproof
membrane installed by [appellant] prevented moist ure egress
and that a reasonab le contractor in [appellant’s] position
should have installed ventilation, balanced against the fact that
even [Ofori-Amanfo] acknowledged that some of the moisture
in the walls would not have been present but for the grading

10
issues and lack of block caps, the [c] ourt finds [appellant] is
20% responsible for the water damage to [respondents’]
structure.

The district court concluded that appellant “breached the implied warranty of fitness
for purpose by failing to install vent ilation,” and that the “failure was a direct and
significant cause of the water damage .” It found that appellant “knew or had reason to
know that Mr. Chouanard was not an expert in installation of waterproofing membranes
and was relying on his expertise.” Consequently, the district court awarded respondents
judgment against appellant for $9,527.60. This appeal followed.
D E C I S I O N
I. The district court did not err in finding that appellant breached an implied
warranty of fitness for purpose and apportioning appellant 20 percent of the
fault.

“On appeal from a judgment, this court’s scope of review is whether the evidence
is sufficient to support the [district] court’s findings and whether the findings support its
conclusions of law.” Dairy Farm Leasing Co. v. Haas Livestock Selling Agency, Inc., 458
N.W.2d 417, 418 (Minn. App. 1990). We will not set aside a district court’s findings of
fact unless they are clearly erroneous, and we defer to the district court’s credibility
determinations. See Minn. R. Civ. P. 52.01. A finding of fact is clearly erroneous if it is
“manifestly contrary to the weight of the evidence or not reasonably supported by the
evidence as a whole.” N. States Power Co. v. Lyon Food Prods., Inc. , 229 N.W.2d 521,
524 (Minn. 1975). We view the evidence and its reasonable inferences in the light most
favorable to the prevailing party. State, Dep’t of Pub. Welfare v. Thibert, 279 N.W.2d 53,
56 (Minn. 1979).

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Minnesota re cognizes an implied warranty of fitness for purpose in construction
contracts.4 See Robertson Lumber Co. v. Stephen Farmers Coop. Elevator Co. , 143
N.W.2d 622, 626 (Minn. 1966). The implied warranty exists where:
(1) the contractor holds himself out, exp ressly or by
implication, as competent to undertake the contract; and the
owner (2) has no particular expertise in the kind of work
contemplated; (3) furnishes no plans, design, specifications,
details, or blueprints; and (4) tacitly or specifically indica tes
his reliance on the experience and skill of the contractor, after
making known to him the specific purposes for which the
building is intended.

Id. Whether an implied warranty exists is a question of law. Dworsky v. Vermes Credit
Jewelry, Inc., 69 N.W.2d 118, 122 (Minn. 1955). Minnesota courts construe the doctrine
of implied warranty liberally. Robertson, 143 N.W.2d at 626.
Appellant argues that the district court erroneously found that he breached an
implied warranty of fitness for purpose and caused respondents’ water damage. First,
appellant contends that the district court “erred by failing to attribute any fault to
respondents[,] who chose to act as their own general contractors despite having no
knowledge of construction practices.”

4 Minnesota law also provides statutory warranties in certain circum stances. See Minn.
Stat. § 327A.02 (2018). Section 327A.02 provides relief “in a contract for the sale of home
improvement work involving major structural changes or additions to a residential
building” if the damage is caused by “noncompliance with building standards.” Id., subd.
3. The district court found, however, that “[respondents] failed to establish that
[appellant’s] workmanship or materials were out of compliance with the State Building
Code and therefore they c[ould] [not] recover under Minn. Stat. § 327A.02.” The district
court state d, “However, § 327A[.02] establishes an additional, rather than exclusive
warranty and therefore [respondents ’] implied warranty claims survive.” See Minn. Stat.
§ 327A.06 (2018) (“The warranties provided for in section 327A.02 shall be in addition to
all other warranties imposed by law or agreement.”).

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Second, appellant argues that respondents failed to present evidence that ventilation
was necessary to prevent water damage. Appellant argues that respondents’ expert witness,
Ofori-Amanfo, “cit[ed] no building code or other authority for either the necessity of such
venting or that the installation of such venting is the responsibility of a roofing contractor.”
Further, appellant contends that, if ventilation was necessary, it was Prairie Creek Builder
who breached an implied warranty of fitness for purpose. He argues that “[r]espondents
relied on Prairie Creek Builder for the plans, specifications, and all of the structural details
inasmuch as they paid Prairie Creek Builder for those services.”
And third, appellant disputes that any fault should be attributed to him. He argues
that the district court “erroneously relied on expert testimony that . . . never articulated why
fault should be apportioned as the expert apportioned it,” and that the record supports “no
basis to attribute any percentage of fault to [a]ppellant.”
Contrary to appellant’s position, the district court’s findings were amply supported
by evidence demonstrating that ventilation was necessary to prevent water damage, and
appellant’s failure to ventilate the rubber membrane was a significant factor in brin ging
about water damage to the addition. Respondents’ expert, Ofori-Amanfo, testified that the
rubber membrane roof constructed by appellant acted as an “umbrella” holding in moisture.
Ofori-Amanfo explained that the moisture condensed into frost in the cooler months, and
melted into water when warmed. Consequently, as Ofori-Amanfo testified, “It is that water
that then does the damage that we see here in the walls.” Ofori-Amanfo testified that, in
order to prevent water damage, “most of the venting need[ed] to go through the membrane
on the decking.”

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While Prairie Creek Builder was the contractor responsible for providing
architectural plans for the project, Ofori-Amanfo testified that, regardless of the respective
trade, it i s common practice for each contractor to “take steps to accommodate for
moisture.” He explained that implied in building codes is the requirement that contractors
independently undertake their work in a manner that is defect -free. Ofori-Amanfo also
testified that respondents’ ins tallation of insulation was not a contributing factor to the
damage of the structure.
The district court found Ofori -Amanfo to be credible, highlighting the expert’s
credentials, his thorough and documented investigation, and his lack of “direct interest in
t[he] litigation.” In contrast, the district court found that appellant was both “an interested
defendant” and that “he lack[ed] any formal training as a forensic engineer.” Appellate
courts must defer to the district court’s credibility determinations and refrain from second-
guessing them on appeal. See Pechovnik v. Pechovnik , 765 N.W.2d 94, 99 (Minn. App.
2009); see also Minn. R. Civ. P. 52.01.
Appellant also appears to misconstrue Robertson. He argues that, in order for the
implied-warranty-of-fitness-for-purpose doctrine to extend to a construction contract, the
contractor must not furnish any “plans, design, specifications, details, or blueprints.” See
Robertson, 143 N.W.2d at 626. Appellant argues, “To apportion any fault to [ him] under
the theory of an implied warranty of fitness is a clearly erroneous application of t hat
doctrine” because r espondents relied on Prairie Creek Builder , not appellant, for the
architectural plans of the project. We reject this argument for three reasons.

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First, appellant’s contention that Prairie Creek Builder is liable for failing to include
ventilation in its architectural plans is an argument that it did not raise below. At trial,
appellant challenged Ofori-Amanfo’s testimony that ventilation was necessary and argued
that the primary cause of the damage was , instead, the insulation installed by Chouanard.
Generally, appellate courts decline to address issues first raised on appeal. See Thiele v.
Stich, 425 N.W.2d 580, 582 (Minn. 1988).
Second, even if appellant had properly preserved the issue, our decision would be
the same. Following trial, the district court found that Prairie Creek Builder was, in fact,
25 percent at fault for the damages , concluding that, through Ofori-Amanfo’s testimony,
respondents proved that the architect failed to account for the risk of water damage in the
plans it drew up for the project.
And third , appellant’s contention that, because he was not the contractor who
furnished the architectural plans, he cannot be found liable und er the implied -warranty
doctrine is an argument based on a misreading of Robertson. The implied warranty of
fitness for purpose exists in a construction contract where “ the owner . . . furnishes no
plans, design, specifications, details, or blueprints .” Robertson, 143 N.W.2d at 626
(emphasis added). The fact that appellant did not provide the architectural plans is
irrelevant to the Robertson analysis.
Here, it is undisputed that: appellant held himself out as competent to undertake the
construction contract; respondents had no particular expertise in the kind of work
contemplated; and respondents tacitly or specifically indicated their reliance on the
experience and skill of appellant. Id. Respondents did not, themselves, offer any plans or

15
specifications for the addition —but, rather, they hired another contractor, Prairie Creek
Builder, to provide the architectura l drawings. Reviewing the criteria prescribed by the
Robertson court in which the doctrine extends to construction contracts, we conclude that
the district court correctly found that an implied warranty of fitness for purpose applied to
the agreement between respondents and appellant. See id.
We are also not persuaded by appellant’s argument that the district court
“erroneously relied” on Ofori-Amanfo’s testimony which “never articulated why fault
should be apportioned as the expert apportioned it.” The district court stated that, while it
found Ofori -Amanfo’s testimony es tablished that appellant’s work was a contributing
factor to the water damage, it did “not entirely accept [the expert’s] opinion on the
allocation of fault.” Based on its independent review of all the evidence, the district court
rejected Ofori-Amanfo’s proposal that appellant was 35 percent at fault, and, instead, found
that appellant was only 20 percent liable for the water damage.
Viewing the evidence in the light most favorable to the judgment, and deferring to
the district court’s findings of fact and credibility determinations, we conclude the district
court did not err in finding that appellant breached an implied warranty of fitness for
purpose, and apportioning appellant 20 percent of the fault.
II. The district court did not abuse its discretion in its determination of damages.

The district court ruled that, because no one from CRJ Construction testified, the
invoices prepared by the company were generally inadmissible. However, it determined
that, because Chouanard “testified that he in fact paid each invoice and he also testified
about the work done under each invoice,” and Chouanard’s “testimony drew on his own

16
knowledge of the work performed and the payments made,” the district court could rely on
Chouanard’s testimony, and it could consider the invoices as a demonstrative exhibit.
“The admission of evidence rests within the broad discretion of the [district] court
and its ruling will not be disturbed unless it is based on an erroneous view of the law or
constitutes an abuse of discretion.” Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42,
45-46 (Minn. 1997) (quotation omitted). To be granted a new trial on the basis of improper
evidentiary rulings, the complaining party must demonstrate prejudicial error. Id. at 46.
District courts also have broad discretion in determining damages. W. St. Paul
Fed’n of Teachers v. Indep. Sch. Dist. No. 197, 713 N.W.2d 366, 378 (Minn. App. 2006).
We review the district court’s determination for a clear abuse of discretion, and “will not
set aside a damage award unless it is manifestly and palpably contrary to the evidence.”
Id. (quotation omitted). A district court’s fact findings underlying the damages award are
reviewed for clear error and will be “upheld if they are reasonably supported by the
evidence.” In re Trusteeship of Tr. of Williams, 631 N.W.2d 398, 407 (Minn. App. 2001),
review denied (Minn. Sept. 25, 2001).
Appellant argues that , in determining the amount of damages, the district court
“erroneously relied on summary invoices ” that “were prepared for litigation by someone
not appearing to testify about the document.” Appellant contends that the invoices failed
to reference “what work , specifically, was performed and whether that work was
reasonably necessary or reasonably related to the moisture damage.” He argues that ,
“[w]ithout the actual, detailed invoices or proposals describing the labor and materials,
there was no basis for the court to award any monetary damages.” Further, appellant

17
argues, because Chouanard “knew nothing of construction,” respondents failed to establish
that the invoices were relevant and had probative value.
The district court did not abuse its discretion in its determination of damages.
Chouanard testified to each invoice, stating that each one, with the exception of the invoice
for $1,400,5 was for work CRJ did to repair the water damage. Respondents also provided
copies of corresponding checks that totaled the amount they paid CRJ for the repair work.
Ofori-Amanfo testified that CRJ’s work was done in accordance with his recommendations
and that he provided guidance to CRJ throughout the repair process. The district court also
found that the repairs “were reasonable and necessitated by the water damage at issue.”
Contrary to appellant’s position, the district court did not rely on the “s ummary invoices”
in making its damages determination; rather, the district court relied on the first -hand
testimony of Chouanard, as well as the credible testimony of Ofori -Amanfo. Because we
defer to the district court’s findings of fact and credibility determinations unless they are
proven clearly erroneous, we conclude the district court did not abuse its discretion
determining damages.
Affirmed.

5 Chouanard testified that $1,400 included payment for both “the initial investigation into
the plinth,” as well as for “some initial work that we were doing unrelated to the actual
damage.” So, Chouanard testified, “ although there was some additional work on the
damage, we were going to be paying that anyway.” Accordingly, respondents provided
copies of checks that totaled $46,238 ($47,638 - $1,400).