Lighthouse Management Inc., Plaintiff,

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1303

Lighthouse Management Inc.,
Plaintiff,

vs.

Oberg Family Farms, et al.,
Defendants,

American Federal Bank,
Appellant,

Gateway Building Systems, Inc.,
Respondent,

CITYWide Electric, L.L.C.,
Respondent,

Bell Bank,
Respondent.

Filed August 30, 2021
Reversed and remanded
Reilly, Judge

Clay County District Court
File No. 14-CV-19-2628

Jacob B. Sellers, Greenstein Sellers PLLC, Minneapolis, Minnesota; and

Matthew J. Bialick, Stephen M. Ringquist, MJB Law Firm, PLLC, Chanhassen, Minnesota
(for appellant)

Joseph A. Turman, Turman & Lang, Ltd., Fargo, North Dakota (for respondent/cross-
appellant Gateway Building Systems, Inc.)

Jeffrey Gunkelman, Benjamin L. Williams (pro hac vice), Kennelly Business Law, Fargo,
North Dakota (for respondent CITYWide Electric, L.L.C.)

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Andrew J. Steil, Christopher W. Harmoning, Lehoan T. Pham, Lathrop GPM LLP, Fargo,
North Dakota (for respondent Bell Bank)

Considered and decided by Bryan, Presiding Judge; Re illy, Judge; and Slieter,
Judge.
SYLLABUS
Whether a grain bin constitutes a real-est ate fixture or personal property is a
question of fact to be determined by the f actfinder after considering these factors:
(1) whether the grain bin can be removed without leaving the real property in a substantially
worse condition than before; (2) whether the grain bin can be removed without breaking it
into pieces and damaging the grain bin itself; (3) whether the grain bin has any independent
value once removed from real property; and (4) the intent of the parties.
OPINION
REILLY, Judge
This dispute follows the sale of real property in a ci vil assignment-for-the-benefit-
of-creditors proceeding. The issue on appeal is which creditors’ liens have priority.
Appellant mortgage-holder and cross-appellant general-contractor challenge the district
court’s resolution of cross-motions for summary judgment and its mechanic’s lien
determinations. We reverse and remand. We also deny respondent Bell Bank’s motion to
strike.
FACTS
I. Structure of Oberg Farming Operations

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This case arose from farming operations conducted by Oberg Family Farms. Chad
Oberg is the son of Richard Oberg. Chad Ob erg is married to Leslie Oberg and Richard
Oberg is married to Laurel Oberg (collectively, the Obergs).1
The Obergs owned and operated a large grai n farm near Moorhead. They formed
Oberg Family Farms to run th eir general farming operations. Although the Obergs own
Oberg Family Farms, Richard and Chad operate it. Oberg Family Farms does not hold title
to any of the assets of the farm and instead rents equipment each year from Oberg Family
EQ Group, LLC (Oberg Family EQ), a Minnesota limited liability company.
The Obergs also own Ober g Family EQ. Oberg Fam ily EQ owned all of the
personal property on a 20.87 acre parcel of re al property, which the parties call the bin
site.2 The corporate statements of Oberg Fam ily EQ identified the personal property it
owned on the bin site as including machinery, grain bins, grain dryers, fuel tanks, facilities,
warehouses, hoppers, and hopper bins, a shed , and other farming equipment. Each year,
Oberg Family EQ leased its property and equipment to Oberg Family Farms, and Richard
and Laurel leased the bin site to Oberg Family Farms.

1 Because several individuals have the same last name, we use the first names in later
references.
2 Richard and Laurel owned this 20.87 acres of real property at 4310 110th Avenue North
in Moorhead.

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II. Banking Relationship Between the Obergs and Bell Bank
The Obergs conducted most of their farm-related banking activities with respondent
Bell Bank. To secure repaym ent of Oberg Family EQ’s and Oberg Family Farm’s debts
to Bell Bank, Oberg Family EQ executed agricultural security agreements granting Bell
Bank a blanket security interest in all of the equipment on the bin site. Bell Bank’s security
interest included accounts, equipment, vehicl es, deposit accounts, farm products, general
intangibles, livestock, and crops. Bell Bank firs t perfected its security interest in August
2010, when its predecessor-in- interest filed financing statements under the Uniform
Commercial Code (the UCC) for the personal property. Bell Bank’s security interest
continues through the relevant time. In March 2019, Bell Bank obtained a mortgage for
the bin site real property and equipment. Bell Bank is the only party with a first-perfected
security interest on the bin-site equipment.3
III. Construction of New Grain Bin
In May 2018, Chad spoke with Kevin Johnson, the president and owner of
respondent/cross-appellant Gateway Building Systems, Inc. (Gateway), about acquiring a
new large grain bin for the bin site. Gatewa y is a licensed contr actor that sells and
constructs grain storage. Several years earl ier, Johnson learned that a property owner in
Iowa was willing to give away a 132-foot diameter grain bin to anyone who would agree
to remove the bin from the original location and transport it elsewhere. Johnson contacted
Chad, one of his existing customers, who expressed interest in the bin.

3 AFB filed a mortgage on the bin site in 2018.

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Chad and Johnson dispute the nature of their agreement. Chad contends that
Johnson’s company, Gateway, agreed to act as general contractor for moving and
reconstructing the grain bin on the bin site. According to Johnson, however, Chad agreed
to act as general contractor and take responsibility for the site work, the concrete work, and
the electrical work.
From July 2018 to September 2018, the Obergs prepared the bin site for the arrival
of the grain bin from Iowa. Obergs’ farm employees performed excavation and backfilling
work at the bin site, accordin g to Joe Horner, Gateway’s c onstruction manager. Horner
explained that Chad arranged for and “hired unknown individuals or a contractor” to pour
concrete for the project. Gateway’s work included dismantling and removing the bin and
its footings from the property in Iowa, and hiring a large forklift to unload parts of the bin
from semi-trailers at the bin site in Moorhead . Gateway made many deliveries to the bin
site from October to November 2018. On ce the real property was prepared, Gateway
reconstructed the bin between November and December 2018.
Chad also hired respondent CITYWide Electric LLC (CITYWide), an electrical
contractor, in July 2018, to provide electri cal work at the site . Brent Michelsen,
CITYWide’s owner, stated that Chad acted as a general contractor who hired and
controlled CITYWide and the other contractors working at the site. CITYWide concluded
its installation work in February 2019, and continued to provide service work to the Obergs
through April 2019.

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IV. Financing for New Grain Bin
In August 2018, Chad approached appella nt American Federal Bank (AFB) about
financing the construction and installation of the new grain bin on the bin site. AFB hired
an appraiser to conduct an appraisal on the bi n site and the real property. The appraisal
concluded that all of the exis ting structures were improveme nts to real property. The
appraiser’s report stated that the bin site, including the real property, had an “as is”
valuation of $3,850,000, and an “as completed” valuation of $5,325,000 once the new grain
bin construction was completed.
In September 2018, AFB loaned $900,000 to the Obergs for construction of the new
grain bin. AFB took out a mortgage on the bin site, which included the real property and
all the buildings, structures, and fixtures on th e property. AFB ordered a title search that
did not reveal any competing mortgages, mechanic’s liens, or fixture filing statements for
the bin site.4 In December 2018, AFB made a second loan to Chad and Leslie for $700,000.
AFB took out a second mortgage on the bin site real property and its buildings, structures,
and fixtures as security for the second loan. AFB did not discover any competing
mortgages, mechanic’s liens, or fixture filing statements on the property when it recorded
the second mortgage.
V. Mechanic’s Liens and Assignment
Gateway sent an invoice to the Obergs for $280,000 for the amount owed when
Gateway erected the grain bin. The Obergs fa iled to pay this invoice. In March 2019,

4 The record is not clear why AFB did not discover Bell Bank’s fixture filing statements.

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Gateway’s officer signed a mechanic’s lien statement on behalf of Gateway for $600,000
for work related to the relocation of the grain bin and the partial assembly of the bin on the
Obergs’ property. Gateway mailed a copy of the mechanic’s lien statement to Richard and
Laurel and recorded it in the county recorder’s office. Gateway did not serve its mechanic’s
lien statement either personally or by certified mail on Richard and Laurel.
CITYWide sent multiple invoices to the Ob ergs for payment, totaling $47,575 for
parts and materials. The Obergs failed to pay CITYWide for all the amounts due and owing
in connection with the electrica l work performed at the prope rty. CITYWide recorded a
mechanic’s lien statement and filed it with the county recorder’s office in April 2019.
Because of the Obergs’ insolvency and inability to pay their debts, an assignment-
for-the-benefit-of-creditors action was commenced under Minn. Stat. §§ 577.11-.18 (2020)
and Minn. Stat. §§ 576.21-.53 (202 0) by filing an assignment with the district court (the
assignment). The district court appointed respondent Lighthouse Management Inc. as the
receiver and assignee. The assignment covered the Obergs’ property, including the bin site
with all the buildings and fixtures located on the site, and any equipment located on the bin
site that did not constitute bu ildings or fixtures. This pr operty is collectively the sale
property.
In September 2019, the district court appr oved the sale, free and clear of liens and
encumbrances. The district court approved a purchase agreement to sell the sale property
to Gateway for $1,400,000, less closing costs a nd receivership costs (the sale proceeds).
The net sale proceeds were paid to, and held by, Lighthouse. The district court confirmed

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the sale in December 2019. The sale proceeds remain in the possession, custody, and
control of Lighthouse.
Four parties—AFB, Bell Bank, Gateway, and CITYWide—each claimed an interest
in the sale proceeds following the liquidation of the Obergs’ property. AFB asserts that it
holds two mortgages on the bin site property and claims an interest of $1,673,793.90, plus
interest and attorney fees. Bell Bank asserts that it holds a mortgage on the bin site property
and a UCC filing on the equipment, and claims an interest of $4,547,607.17. 5 Gateway
claims it holds a mechanic’s lien interest in the bin site of $699,659.99. CITYWide claims
it holds a mechanic’s lien interest in the bin site of $47,575.
VI. Motion Practice and District Court Order
AFB, Bell Bank, Gateway, and CITYWide each moved for summary judgment to
determine the parties’ respective interests in the sale proceeds. The district court issued an
order partially granting the parties’ motions and directing entry of judgment. The district
court determined that the structures locate d on the bin site constit uted personal property
covered by Bell Bank’s liens, and did not constitute fixtures covered by AFB’s mortgages.
As a result, the district court determined th at Bell Bank had first priority to the sale
proceeds. The district court determined that the bin site equipment and structures made up
most of the value of the bin site. The distri ct court determined that Gateway’s asserted
mechanic’s lien was invalid because Gateway did not provide prelien notice. The district

5 The Obergs’ property also included a parcel of real property identified as the bunker site.
Bell Bank holds a security interest on the bunker site. Bell Bank was the only party
claiming an interest in the sale proceeds from the bunker site. This issue is not before us
on appeal.

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court also concluded that CITYWide’s assert ed mechanic’s lien was valid and that it had
first priority for the sale pr oceeds from the bin site. Base d on these determinations, the
district court (1) awarded Bell Bank 86.4% of the sale proceeds, (2) did not award Gateway
any of the sale proceeds, and (3) collectiv ely awarded AFB and CITYWide 13.6% of the
sale proceeds, with CITYWide receiving its entire request of $47,575 and AFB receiving
the balance of the 13.6% share.
AFB appealed the district court’s decision adjudicating the parties’ interests in the
sale proceeds and granting summary judgment in Bell Bank’s favor. Gateway filed a notice
of related appeal challenging the district court’s mechanic’s lien decision, which we
determined constituted a proper cross-appeal.
ISSUES
1. Did the district court err by granting summary judgment?
2. Did the district court err in its mechanic’s-lien rulings?
3. Should portions of AFB’s brief be stricken from the appellate record?
ANALYSIS
I. The district court erred by granting summary judgment in Bell Bank’s favor
and against AFB because there are material facts in dispute.

a. Legal Standard
Summary judgment is appropriate if “there is no genuine issue as to any material
fact and the movant is entitled to judgment as a matter of law.” Minn. R. Civ. P. 56.01.
“A genuine issue of material fact exists if a rational trier of fact, considering the record as
a whole, could find for the nonmoving party.” Leeco, Inc. v. Cornerstone Bank , 898

10
N.W.2d 653, 657 (Minn. App. 2017), review denied (Minn. Sept. 27, 2017). A material
fact is one that affects the outcome of the case. O’Malley v. Ulland Bros. , 549 N.W.2d
889, 892 (Minn. 1996). We view “the ev idence in the light mo st favorable to the
nonmoving party and resolve all doubts and factual inferences against the moving part[y].”
Maethner v. Someplace Safe, Inc., 929 N.W.2d 868, 874 (Minn. 2019) (quotation omitted).
“[W]hen the material facts are not in dispute, an appellate court will review the district
court’s grant of summary judgment de novo.” Melrose Gates, LLC v. Moua, 875 N.W.2d
814, 819 (Minn. 2016). The interpretation of a statute also presents a question of law,
which we review de novo. Cocchiarella v. Driggs, 884 N.W.2d 621, 624 (Minn. 2016).
b. Whether a grain bin is personal prop erty or a fixture involves a case-by-
case analysis by a factfinder.
AFB and Gateway argue that summary judg ment was inappropriate because there
are genuine issues of material fact. AFB argue s that the bin-site structures are fixtures
subject to its 2018 mortgages. Gateway also argues that the structures should be treated as
real, not personal, property. By contrast, Be ll Bank argues that the bin-site structures are
personal property and subject to Bell Bank’s security interests, which were first perfected
in 2010. The district court determined that “the grain bi ns are personal property and not
fixtures.” AFB and Gateway challenge this determination on appeal.
The heart of the dispute is whether the grain bin constitutes a fixture or personal
property. As the district court recogniz ed, there are few Minne sota cases on point
regarding grain bins such as the one at issue. The district court therefore looked to caselaw
from other jurisdictions and concluded that grain bins do not qualify as fixtures. See, e.g.,

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Fed. Land Bank of Omaha v. Swanson, 438 N.W.2d 765 (Neb. 1989) (holding grain bins
are not fixtures because of their impermanent attachment to land); McCarthy v. Bank, 423
A.2d 1280, 1282 (Pa. Super. Ct. 1980) (holding grain bins are not fixtures because they
can be moved without damaging real property).
On appeal, AFB urges us to determine that grain bins of a certain size are fixtures
as a matter of law. See, e.g., Bellemare v. Gateway Builders, Inc. , 420 N.W.2d 733, 736
(N.D. 1988) (holding a 10,000-bushel grain bin anchored to a cement slab by bolts qualified
as a fixture). We decline to adopt a per se rule that a grain bin of a certain size qualifies as
a fixture as a matter of law. Instead, we hold that whether a grain bin is personal property
or a fixture is a fact-specific inquiry and th e factfinder must determine the issue case-by-
case considering the following multi-factor test we adopt here. As the supreme court
observed in Holy Ghost Catholic Church of Two Harbors v. Clinton , 211 N.W. 13, 15
(Minn. 1926), “The lines between personal property and fixtures are so close and so nicely
drawn that no precise and fixed rule can be laid down to control all cases. It is difficult, if
not impossible, to give a definition of the term ‘fixtures’ which may be regarded of
universal application. Each case must be more or less dependent upon its own peculiar
facts.”
Several cases guide us in articulating the te st to determine whether a grain bin is a
fixture or personal property. Holy Ghost, 211 N.W. at 13; Hanson v. Vose, 175 N.W. 113
(Minn. 1919); Minn. Valley Breeders Ass’n v. Brandt, 348 N.W.2d 115 (Minn. App. 1984).
In Holy Ghost, appellant owned a premises that it had used as a house of worship, but
which was later used as a place for entertainment. 211 N.W. at 14. It leased the premises

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to respondents to be used as an assembly hall and theater. Id. Respondents installed a
sloping floor and screen to operate a moving picture business. Id. After the lease ended,
respondents removed the floors and the screen and vacated the premises. Id. The removal
of the screen and the floors damaged the prop erty, and appellant served a civil suit to
recover damages. Id. Following a trial, the district court directed a verdict for respondents
on the ground that the floors an d screen constituted trade fixt ures, which the tenants had
the right to remove. Id. The issue presented on appeal was whether the screen and the
floor were, indeed, trade fixtures.6 Id. at 15. The supreme court held that whether the floor
and the screen were trade fixtures was a ques tion for the jury, and re versed the district
court’s directed verdict. Id. at 15-16. In its analysis, the supreme court defined a “fixture”
as follows:
To constitute a fixture, the th ing must be of an accessory
character and must be, in some way, in actual or constructive
union with the realty and not merely brought upon it. That the
thing is removable with but little injury to the building is a
factor to be considered, so also that it was installed by a tenant;
that it is not removable without being taken to pieces, and is
practically worthless when remo ved, are circumstances to be
considered in determining the intent of the parties and the
character of the addition.

6 We recognize that Holy Ghost addressed trade fixtures, and that trade fixtures are
distinguished from fixtures. A “fixture” is “[p]ersonal property that is attached to land or
a building and that is regarded as an irremovable part of the real property,” while a “trade
fixture” is “[r]emovable personal property that a tenant attaches to leased land for business
purposes.” Black’s Law Dictionary 782 (11th ed. 2019). But Holy Ghost has been cited
in nonprecedential cases analyz ing whether something is a fixt ure or personal property.
See, e.g., Newport Island Yacht Club v. Inver Grove Heights Marina, Inc., No. C5-94-1204,
1995 WL 70215, at *1 (Minn. App. Feb. 21, 19 95) (considering whether docks were
fixtures to real estate), review denied (Minn. March 29, 1995). We therefore consider Holy
Ghost informative to our analysis.

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Id. at 15-16.
In Hanson, the supreme court considered whether ranges, stoves, and beds installed
in apartment building units had become a part of the real property such that they could not
be removed from the units. 175 N.W. at 114. The supreme court explained that a fixture
becomes real property if it cannot be re moved without leaving the property “in a
substantially worse condition than before.” 175 N.W. at 114; see also Behrens v. Kruse ,
140 N.W. 114, 117 (Minn. 1913) (“That a so-c alled fixture is removable with little injury
to the building is an important consideration in this connection.”). Because these items
could be removed without material injury to the building, the supreme court determined
that they did not become a part of the real property. 175 N.W.2d at 114-15.
The parties’ intent is also an importa nt factor in a fixture analysis. In Minnesota
Valley Breeders Ass’n , the court of appeals consider ed whether the respondent could
recover possession of a grain s ilo sold under a security agre ement. 348 N.W.2d at 117.
The decision acknowledged that Minnesota courts may consider the intent of the parties in
determining whether an item qualifies as personal property or as a fixture. Id. We affirmed
the district court’s determination after trial that the grain silo constituted personal property
because, among other factors, the parties explic itly agreed in the secu rity agreement that
the grain silo “is and shall remain personal property, and shall not constitute fixtures or real
estate.” Id. at 116-17; see also Holy Ghost , 211 N.W. at 15 (observing that “[i]n the
absence of an express agreement to the contrary, the intention of the parties as to the nature
of the additions must be ascertained from the particular circumstances of the case”).

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With this guidance in mind, we hold that the factors set forth in Holy Ghost, Hanson
and Minnesota Valley Breeders Ass’n are relevant in determining whether the grain bin
here is a fixture or personal property:
(1) whether the grain bin can be removed without leaving the
real property in a substantially worse condition than before;
(2) whether the grain bin can be removed without breaking it
into pieces and damaging the grain bin itself;
(3) whether the grain bin has any independent value once
removed from the real property; and
(4) the intent of the parties.

In analyzing this case under these factors, we do not include one of the Holy Ghost
factors, whether the item was installed by a tenant. Holy Ghost noted that the lessee’s
actions were a relevant factor to consider in determining whether the items were fixtures.
Id. at 15-16. Here, this factor is not releva nt because the Obergs owned the property and
had the grain bin installed.
Applying the remaining factors to the cas e before us, we dete rmine that genuine
issues of material fact preclude summary judgment.
i. Can the grain bin be removed without leaving the real property in a
substantially worse condition than before?
First, there is a factual dispute whethe r the grain bin can be removed without
damaging the real property on which it sits. Th e district court found that “the grain bins
can be removed without substantially damagi ng the real property.” Bell Bank’s vice
president testified in her affidavit that grain bins are typically installed so that they may be
moved “while . . . ensuring that no material, pe rmanent, or substantial injury occurs to
either the grain bins or surrounding land.” But Gateway’s construction manager, Horner,

15
offered conflicting testimony. Horner stated th at the cost of removing the concrete slab
and restoring the property “to its condition prior to the constr uction of grain bins and/or
buildings on the property would be prohibitive and far exceed the cost of agricultural land
in the vicinity of the [b]in [s ]ite.” Thus, there is a disput e whether the grain bin can be
removed without damaging the real property.
ii. Can the grain bin be removed without damaging the grain bin itself?
Second, there is a genuine issue of mate rial fact whether the grain bin can be
removed without breaking it into pieces an d damaging the grain bin itself. Bell Bank’s
officer, Paulson, stated that the grain bin was “attached” to real property in that it sits on
top of a concrete slab, secured into place with clips. Paulson also noted that accessories to
the grain bins, such as fans, augers, conveyor s, and power exhausts, are also not attached
directly to real property and may be “moved and detachable without any problems.” The
district court found Paulson’s affidavit persua sive and stated that the grain bin could be
readily removed by unclipping the bin from the concrete slab and “tak[ing] [it] apart in
sections for transport.” But AFB and Gatewa y provided contrary evidence. Gateway’s
president, Johnson, noted that a grain bin must be disassembled to move it. Horner
similarly stated that moving the grain bin fr om Iowa to Minnesota required eleven semi-
loads of grain bin parts and materials. It will be for the factfinder to determine whether
this grain bin can be removed again without breaking it into pieces and damaging it.

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iii. Does the grain bin have independe nt value once removed from the
real property?
Third, there is a question of fact whethe r the grain bin has independent value once
it is removed from the real property. The district court noted that the grain bin “has already
been moved once” when it was relocated from Io wa to Minnesota, suggesting that it has
“value separate from the value of the real estate.” Bell Bank’s officer described grain bins
as “typically high-value assets” that “are routinely removed from the land and then resold.”
Bell Bank’s appraiser also submitted an affidavit and supporting materials stating that grain
bins have value on their own, separate and distinct from the real property. But a competing
affidavit from Gateway’s president suggests that the grain bin could not be moved without
rendering it nearly worthless. Gateway’s president stated that in his experience, “[t]he cost
of moving a grain bin involves disassembling the bin, removal of the underlying foundation
and/or footings and sidewalls and a complete reconstruction at a different location. As a
result of the relocation cost, a grain bin in pl ace has very little sale value.” And, as AFB
argues, this fact is evident because the landowner in Iowa, who originally owned the grain
bin, was willing to give it away for free to anyone willing to take it. It is reasonable at this
stage to credit the non-moving party’s factual statement and conclude that the district court
erred when it credited the moving party’s factual assertions.
iv. Did the parties intend the grain bi n to be a fixture or personal
property?
Fourth, the parties dispute their intent. AFB argues that “there was no evidence on
the record that the [Obergs] ev er regarded the [grain bin a nd its supporting structures] as
anything other than ‘buildings and improvements’ to the [b]in [s]ite.” AFB notes that the

17
Obergs described the bin site structures as “buildings and improvements” on their financial
statements and tax documents. The district court observed that Chad submitted an affidavit
in which he stated that Oberg Family EQ, which owned all of the personal property,
depreciated the bin as personal pr operty on its taxes. Based on this evidence, the district
court determined that “the intent of Oberg Family EQ Group was to include the grain bins
and other assets as personal property.” AFB challenges th e weight to be given to Chad’s
affidavit. But at the summary-judgment stage, the district court must not “weigh facts or
determine the credibility of affi davits and other evidence.” Montemayor v. Sebright
Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017) (quo tation omitted). There is a genuine
issue of material fact about whether the parties intended for the grain bin structure to be
considered a fixture or personal property.
We conclude that there are many factual dis putes here. And “[t] he district court’s
function on a motion for summary judgment is not to decide issues of fact, but solely to
determine whether genuine factual issues exist.” DLH, Inc. v. Russ , 566 N.W.2d 60, 70
(Minn. 1997). As a result, a court decidi ng a summary-judgment motion must not make
factual findings or credibility determinations or otherwise weigh evidence relevant to
disputed facts. Id. The district court erred by weighing the evidence at the summary-
judgment stage and concluding that the bin-s ite structures were personal property rather
than fixtures.7

7 Bell Bank argued that even if the bin-site structures are fixtures, then the UCC’s trade-
fixture exception applies. AFB disputed this argument and claimed that this determination
is erroneous because Oberg Family EQ was not a lessee of the bin site and there are material
facts in dispute. “[A] fixture is considered tangible personal propert y, rather than real

18
II. AFB’s Alter-Ego Argument
AFB argues that there is a genuine issue of material fact as to whether Oberg Family
EQ was an alter ego of the Obergs and owned a ll of the bin-site structures. The district
court rejected this argument as unsupported by the record. AFB claims there are genuine
issues of material fact, but failed to adequately brief this issue or cite any pertinent caselaw.
We therefore find this argument forfeited. See In re Reichmann Land & Cattle, LLP, 867
N.W.2d 502, 506 n.2 (Minn. 2015) (declin ing to consider “inadequately briefed”
argument); Brodsky v. Brodsky, 733 N.W.2d 471, 479 (Minn. App. 2007) (recognizing that
inadequately briefed arguments are forfeited).
Even if we reached the issue, we disc ern no error in the district court’s
determination. The district court noted that Oberg Family EQ “operates independently of
the individual Obergs and Oberg Family Farms” and “is a business entity formed under the
statutes of Minnesota and its independenc e is evidenced by th e various security
agreements, asset lists, lease agreements, an d tax documents.” Th e record supports the
district court. Oberg Family EQ is a lim ited-liability holding co mpany for the Obergs,
established in 2010. Chad testified in an affidavit that Oberg Family EQ owned the bin-

property, when it is used for trade purposes and if removal does not result in material and
permanent damage to the real estate.” Comm’r of Revenue v. Dahmes Stainless, Inc., 884
N.W.2d 648, 656 (Minn. 2016). The district c ourt determined that even if the bin-site
structures did not constitute personal property, then they were trade fixtures and Bell Bank
was the only party with an interest. But the determination whether equipment qualifies as
a trade fixture is a question of fact for the factfinder. Cent. Chrysler Plymouth, Inc. v. Holt,
266 N.W.2d 177, 179 (Minn. 1978). And “the district court is not to find facts by resolving
disputes at the summary judgment stage.” J.E.B. v. Danks, 785 N.W.2d 741, 747 (Minn.
2010). The district court’s trade-fixture finding at the summary judgment stage is
erroneous.

19
site structures and leased them to Oberg Family Farms each year. Oberg Family EQ listed
the bin-site structures on its tax returns and balance sheets. AFB has not identified facts
supporting its alter-ego argument. Thus, we determine that the district court did not err on
this issue.
III. The district court’s findings related to the mechanic’s liens were erroneous.
We next consider the district court’s app lication of the mechanic’s lien statute to
CITYWide and Gateway. Chapter 514 governs the rights and liabilities of the parties to a
mechanic’s lien. See Minn. Stat. §§ 514.01-.17 (2020). Under the statute:
Whoever performs engineering or land surveying
services with respect to real estate, or contributes to the
improvement of real estate by performing labor, or furnishing
skill, material or machinery for any of the purposes hereinafter
stated, whether under contract with the owner of such real
estate or at the instance of an y agent, trustee, contractor or
subcontractor of such owne r, shall have a lien upon the
improvement, and upon the land on which it is situated or to
which it may be removed, that is to say, for the erection,
alteration, repair, or removal of any building . . . .
Minn. Stat. § 514.01; see also Premier Bank v. Becker Dev., LLC , 785 N.W.2d 753, 758
(Minn. 2010).
“[A] lien claimant must follow the statut ory procedures to perfect a mechanic’s
lien.” Premier Bank, 785 N.W.2d at 758. “To the exte nt there is ambiguity, mechanic’s
lien laws are strictly construed as to the question of whether a lien attaches, but are liberally
construed after the lien is created with respect to the enforcement of the lien.” Ryan
Contracting Co. v. O’Neill & Murphy, LLP, 883 N.W.2d 236, 243 (Minn. 2016).

20
The district court determin ed that CITYWide and Ga teway were both entitled to
protect their interests through mechanic’s liens . The district court found that CITYWide
held a valid mechanic’s lien against the Obergs’ property, but that Gateway did not hold a
valid mechanic’s lien. We address each decision in turn.
a. The district court erred by granting summary judgment in CITYWide’s
favor and against AFB and determining that CITYWide was entitled to a
mechanic’s lien.
The district court determined that CITY Wide was entitled to a mechanic’s lien
because, although it violated the statutory notice requirements, an exception applied. AFB
appeals this determination. The questions presented are: (1) whether the district court erred
in determining that actual notice overcame the statutory requirement that service must be
perfected by certified mail or personal service, and (2) whether there are unresolved factual
issues over the “same ownership” exception to the prelien-notice requirement.
i. Proper Service
AFB argues that CITYWide’s mechanic’s lien statement is void because CITYWide
failed to effect proper service. “To perfect a mechanic’s lien, a lien claimant must file and
serve a statement of the claim within 120 days of completi ng work on the property.”
Eclipse Architectural Grp., Inc. v. Lam, 814 N.W.2d 692, 696 (Minn. 2012); see also Minn.
Stat. § 514.08. The claimant must serve a copy of the lien statement “personally or by
certified mail on the owner or the owner’s authorized agent or the person who entered into
the contract with the contractor.” Eclipse Architectural Grp. , 814 N.W.2d at 696
(quotation omitted).

21
CITYWide mailed a copy of the lien statement to the Obergs by U.S. Mail, but did
not serve it by certified mail or by personal service. The district court acknowledged that
CITYWide “did not provide prelien notice,” but claimed that the “defect” in service was
“not material and service was proper” becaus e the Obergs had actual notice of the lien
statement.8 The district court erred. “The object of all interpretation and construction of
laws is to ascertain and effectuate the intent ion of the legislature.” Minn. Stat. § 645.16
(2020). The plain language of a statute is th e “touchstone” of statutory interpretation.
ILHC of Eagan, LLC v. County of Dakota , 693 N.W.2d 412, 419 (Minn. 2005). A law
should be construed “to give effect to all its provisions,” Minn. St at. § 645.16, and “no
word, phrase, or sentence should be deemed superfluous, void, or insignificant,” ILHC of
Eagan, LLC, 693 N.W.2d at 419.
Here, the statute required CITYWide to serve a copy of the lien statement
“personally or by certified mail.” Minn. Stat. § 514.08, subd. 1(2). To ignore the term
“certified” would render it superfluous and fail to give it effect. Courts strictly construe
statutory requirements for attachment and creation of a mechanic’s lien, but once a lien is
established, the statutes are liberally construed. Ryan Contracting Co., 883 N.W.2d at 243.

8 The district court relied on Har-Ned Lumber Co. v. Amagineers, Inc ., 436 N.W.2d 811
(Minn. App. 1989). The claimant served a lien statement by certified mail but the recipient
evaded service and re fused to accept it. Har-Ned, 436 N.W.2d at 815. The court
determined that the recipient’ s evasive conduct, coupled w ith actual notice of the lien
statement, constituted sufficient notice. Id. CITYWide did not send the notice by certified
mail or through personal serv ice, and there are no allegati ons that the Obergs evaded
service. Har-Ned does not apply.

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Because CITYWide did not serve the lien statement by certified mail or through personal
service, the district court erred by determining that service was proper.
ii. Same-Ownership Exception
Having determined that the district cour t erred by concluding that CITYWide
satisfied the prelien-notice requirements, we next consider whether an exception excuses
CITYWide’s failure to comply with the service requirements.
Failure to strictly comply with prelien-notice requirements defeats a lien claimant’s
mechanic’s lien. Wong v. Interspace-W., Inc., 701 N.W.2d 301, 302-03 (Minn. App. 2005),
review denied (Minn. Oct. 18, 2005). There are, however, exceptions to the prelien-notice
requirement. Ryan Contracting, 883 N.W.2d at 243; see also Minn. Stat. § 514.011, subds.
4a-4c. The “same ownership” exception provides that “[t]he notice required by this section
shall not be required to be given where th e contractor is managed or controlled by
substantially the same persons who manage or control the owner of the improved real
estate.” Minn. Stat. § 514.011, subd. 4a. This excepti on recognizes cases in which “the
owner is not unsuspecting” because lien notice requirements seek “to remedy the
unfairness arising from the foreclosur e of mechanics liens on property of unsuspecting
owners.” Nor-Son, Inc. v. Nordell , 369 N.W.2d 575, 578 (Min n. App. 1985) (quotation
omitted) (emphasis in original), review denied (Minn. Sept. 13, 1985). The burden of
proving an exception to the prelien notice rests on the claimant. Diethelm v. Cavanaugh,
349 N.W.2d 608, 610 (Minn. App. 1984).
CITYWide claims the same-ownership exception applies because Chad acted as his
own general contractor on the bin-site project. The district court agreed with CITYWide’s

23
position and found that the same-ownership exception applied because Chad was both the
property owner and the general contractor. Based on this finding, the district court
determined that CITYWide’s failure to comp ly with the prelien-notice requirements did
not invalidate the lien.
This decision was erroneous. Generally , whether an owner acted as a general
contractor is a question of fact. Nw. Wholesale Lumber, Inc. v. Citadel Co ., 415 N.W.2d
399, 404 (Minn. App. 1987), review denied (Minn. Feb. 12, 1988). And here, there are
genuine issues of material fact whether Chad acted as the general contractor on the bin-site
project. Certain facts suggest that CITYWide worked at the direction of Chad. For
example, CITYWide’s owner, Michelsen, stat ed that Chad hired CITYWide to provide
electrical work. Michelsen stated that Chad hired and controlled CITYWide’s work and
provided direction about electrical specifications and equipment. Even so, the district court
itself noted that “the record is less clear regarding the agreement that CITYWide had with
the property owners.” The factfinder needs to resolve these competing facts at trial.
The district court relied on Pelletier Corp. v. Chas. M. Freidheim Co., 383 N.W.2d
318 (Minn. App. 1986), review denied (Minn. May 16, 1986), to support its determination
that an exception applied. 9 This reliance was misplaced. In Pelletier, the president of a
real-estate company acted as a licensed contractor developing lots for sale for a real-estate
development project. Id. at 319. The parties developed the facts at a bench trial; then the

9 The district court also relied on Nw. Wholesale Lumber, Inc. v. Citadel Co., which cited
the statutory language but did not otherwise perform a substan tive analysis of the issue.
457 N.W.2d 244, 249 (Minn. App. 1990). We do not consider this case instructive.

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district court, acting as factfinder, determined the president was the general contractor and
the same-ownership exception applied. Id. at 320-22. On appeal, we concluded the district
court did not err in finding the president was a contractor. Id. at 322.
Pelletier is distinguishable. The parties in Pelletier had a trial at which a factfinder
weighed the evidence and ultimately found that an exception ap plied. “[T]he function of
the district court on a motion for summary judgment is not to weigh the evidence.” DLH,
566 N.W.2d at 70. Here, the facts are disput ed on this issue. The district court made
multiple factual findings in its summary-judgment order, including a finding that Chad was
the general contractor. Because there is conflicting evidence related to the “same
ownership” exception, the district court erred.10
b. The district court erred by granting summary judgment against Gateway
and determining that Gateway was not entitled to a mechanic’s lien.
The district court determined that Gate way was not entitled to a mechanic’s lien
because it failed to comply with the statutory notice requirements and no exception applied.
In its cross-appeal, Gateway argues that the district court erred by concluding that an
exception did not apply.
The district court determined that although the same-o wnership exception applied
to CITYWide, it did not apply to Gateway be cause Chad acted as the contractor for
CITYWide, but did not act as the contractor for Gateway. The district court reasoned that:
Even though Chad [] appeared to be involved with the decision
making [with Gateway] on some level, it does not appear that
his involvement rose to the leve l of general contractor when

10 AFB also argues the district court’s order contains contradictor y findings of fact.
Because we reverse, we do not consider the district court’s factual findings any further.

25
there is clear evidence that Ga teway had assumed that role.
Gateway was acting as contractor, not the Obergs; therefore,
the same owner exception do es not apply and Gateway’s
mechanic’s lien fails.
We disagree. As stated above, whether an owner acted as a general contractor is a
question of fact. Nw. Wholesale Lumber, Inc. , 415 N.W.2d at 404. Again, there are
genuine issues of material fact about Chad’s role in the bin-site project. AFB contends that
Gateway provided a bid to Chad for Gateway to act as general contractor on the bin-site
project. But Gateway’s president, Johnson, stated that Chad did not accept this initial bid.
Johnson stated that Chad agr eed to take responsibility for th e bin-site work, the concrete
work, and the electrical work, while Gateway took responsibility for constructing the bin
and installing certain equipment. The record contains evid ence that the Obergs were
responsible for excavating and compacting the sand fill for the real property supporting the
bin. The Obergs also directed their fa rm employees to perform the excavation and
backfilling work at the site. Gateway’s employee, Horner, stated that Chad “hired
unknown individuals or a contractor to p our the necessary concrete for the project,
including the unloading tunnel, the aeration tunnels, the sidewalls, and the concrete floor
for the [grain bin].”
The district court based its decision in part on the fact that Richard submitted a
building permit application in September 2018, naming Gateway as the general contractor.
But Gateway claims Richard named Gateway as the general contractor without Gateway’s
knowledge or consent. Gateway also conte nds that it assumed none of the duties Chad
performed as general contractor on the bin-site project, no matter what Richard stated on

26
the building permit. Given this record, we conclude that there are questions of fact about
whether the Obergs acted as general contractor on the bin-site project. These facts should
be developed at trial and are not appropriate for resolution at the summary-judgment stage.
See DLH , 566 N.W.2d at 70 (cautioning district courts against weighing evidence at
summary judgment). The district court er red by granting summary judgment against
Gateway on this basis.
IV. Bell Bank’s Motion to Strike is Denied
Bell Bank moved to strike portions of AFB’s brief as beyond the scope of our
review. “An appellate court ma y not base its decision on matters outside the record on
appeal, and may not consider matters not pr oduced and received in evidence below.”
Thiele v. Stich , 425 N.W.2d 580, 582-83 (Minn. 19 88). Bell Bank contends that AFB
should not be permitted to argue that there are material facts in dispute because, in district
court, AFB claimed that there were not material facts in disput e. Whether there were
material facts in dispute was ra ised to, and considered by, the district court. Thus, those
arguments are properly before this court on appeal and we deny Bell Bank’s motion to
strike.11

11 Bell Bank asserts that AFB and Gateway should not be permitted to change their theory
of the case by claiming there are factual issues in dispute, which they did not argue below.
Bell Bank relies on Am. Family Mut. Ins. Co. v. Thiem, for the proposition that these parties
“tacitly agreed” that there were no genuine issues of material fact in dispute. 503 N.W.2d
789, 790 (Minn. 1993) (“The parties themse lves, in their cross- motions for summary
judgment, have tacitly agreed th at there exist no genuine issues of material fact and that
the matter could be resolved by reference to [the relevant materials in the record].”). This
argument is not persuasive. AFB and Gateway filed summary-judgment motions asserting
they were entitled to relief as a matter of law. These motions do not constitute a tacit

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DECISION
We reverse and remand the district court’s summary-judgment decision because
material fact issues exist a nd this matter is not appropriat e for summary disposition. We
also reverse and remand the district cour t’s decisions related to CITYWide’s and
Gateway’s mechanic’s liens. We deny Bell Bank’s motion to strike.

agreement that there would be no fact issues precluding summary judgment for Bell Bank,
since no such motion was pending.