Landform Professional Services, LLC, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-0274

Landform Professional Services, LLC,
Appellant,

vs.

Kevin Lefebvre, et al.,
Respondents,
The Bank of Elk River, et al., Defendants.

Filed August 22, 2022
Affirmed
Reyes, Judge

Wright County District Court
File No. 86-CV-20-5020

Robert J. Shainess, Capstone Law, L.L.C., Edina, Minnesota (for appellant)

Richard L. Leighton, Steven T. Hetland, Leighton Hetland, P.L.L.P., Bloomington,
Minnesota (for respondents)

Considered and decided by Wheelock, Presiding Judge; Reyes, Judge; and Jesson,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
In this action to foreclose a mechanic’s lien, appellant contractor challenges the
district court's grant of summary judgment to respondent property owners and argues that
a second declaration created a genuine issue of material fact as to when lienable work
began. We affirm.
2
FACTS
We construe these facts in the light most favorable to appellant Landform
Professional Services, LLC , as the party against whom the district court granted summary
judgment. Fabio v. Bellomo, 504 N.W.2d 758, 761 ( Minn. 1993).
Purchase of Property and Development by WH Diversified
Respondents Kevin and Benita Lefebvre, who own farmland in Otsego, Minnesota,
listed part of it for sale in December 2018. WH Diversified Investment Group agreed to
purchase the land for new mixed-use development. A representative from WH Diversified
signed the purchase agreement on December 12, 2018. The Lefebvres signed the purchase
agreement on December 21, 2018, a key date in this dispute.
The purchase agreement included a clause informing the Lefebvres that the sale was
“subject to land survey” and required WH Diversified to provide a certificate of survey and
pay to have a final plat prepared. If WH Diversified failed to complete this work by a
specific date, the purchase agreement terminated.
To meet the deadline, WH Diversified hired several companies to conduct soil
testing, prepare surveys and plats, and perform other preliminary work. WH Diversified
contracted with Landform to conduct survey and civil -engineering services under a work
order dated December 18, 2018. The work order did not include the prelien- notice
language required by Minn. Stat. § 514.011 (2020), and the Lefebvres received no other
prelien notice. WH Diversified and Landform later contracted for more work through a
second work order in March 2019. The second work order also did not include the proper
prelien notice.
3
The sale of the property never closed. And neither WH Diversified nor the
Lefebvres paid Landform for the work they performed.
Landform Records a Mechanic’s Lien Statement and Begins a Foreclosure Action
Following the nonpayment, Landform recorded a mechanic’s lien statement against
all of the Lefebvres’ property. The lien claimed $356,524.26 in unpaid work. The
mechanic’s lien statement declared that the lienable work “was performed or furnished
from December 18, 2018.”
In October 2020, Landform began this foreclosure action against the Lefebvres and
the bank holding a mortgage on the property. The complaint alleged that the Lefebvres
were the owners of the property at the time of the improvements and that WH Diversified
acted as the Lefebvres’ agent.1 The complaint also alleged that Landform “performed work
towards the improvement of the Property from December 18, 2018 through December 23,
2019.” Darren Lazan, Landform’s Chief Manager, similarly asserted in his first declaration
that “[b]eginning on or around December 18, 2018, Landform began performing civil
engineering work, which included surveying the Property and drafting civil plans for the
development of the Property.” The Lefebvres filed an answer, counterclaim, and third -
party complai nt alleging slander of title and requesting, in part, that WH Diversified
indemnify them.
2

1 Landform later abandoned their principal/agent theory of the case.
2 Under the procedure in Minn. Stat. § 514.10 (2020), the district court released the lien
after the Lefebvres deposited adequate security. Following a stipulation, the district court
returned the deposit to the Lefebvres after granting their motion for summary judgment.
4
In April 2021, the Lefebvres moved for summary judgment based on Landform’s
failure to provide them with prelien notice. Opposing the motion, Landform argued that it
was exempt from providing a prelien notice because it contracted with WH Diversified,
who Landform believed held an equitable ownership interest in the property at the time of
the contract. See Minn. Stat. § 514.011, subd. 2 (stating that “ party under direct contract
with the owner” who will not engage any subcontractors need not provide prelien notice).
Following briefing on the motion, Landform submitted a surreply which included a second
declaration by Lazan. In that declaration, Lazan now claimed that “to be more precise,”
WH Diversified did not direct Landform to begin work on the project until “after December
21, 2018.” Lazan stated that his first declaration and the mechanic’s lien statement were
“based on time records,” which included four entries for mostly administrative and research
work related to WH Diversified’s development project around that date. Lazan stated that
Landform performed much of the surveying and engineering work in January 2019 and did
only “de minimis” work before that.
The district court granted the Lefebvres’ motion for summary judgment. In its
order, the district court disregarded Lazan’s second declaration, stating that it contradicted
Landform’s complaint, mechanic’s lien statement, and work order. As a result, the district
court determined that no genuine fact dispute existed and that the lienable work began on
December 18, 2018. Because WH Diversified did not obtain an equitable ownership
interest in the property until December 21, 2018, Landform needed t o provide the
Lefebvres prelien notice. This appeal follows.

5
DECISION
I. The district court properly granted s ummary judgment to the Lefebvres
because Landform failed to provide the requisite prelien notice.

Landform argues that the district court erred by granting summary judgment
because a genuine dispute of material fact exists based on Lazan’s second declaration
showing that Landform did not perform work on the project for WH Diversified until “after
December 21, 2018.” We disagree with Landform and find no factual dispute precluding
summary judgment.
We review de novo a district court’s summary judgment decision. See Riverview
Muir Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010) (cita tion
omitted). “In doing so, we determine whether the district court properly applied the law
and whether there are genuine issues of material fact that preclude summary judgment.”
Id. Summary judgment is appropriate “when the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue of material fact and that either party is entitled to a judgment as a matter
of law.” Fabio, 504 N.W.2d at 761 (citing Minn. R. Civ. P. 56.03). We view the evidence
in the light most favorable to the party against whom judgment was granted. See id. The
moving party has the burden to show that summary judgment is a ppropriate. Valspar
Refinish, Inc. v. Gaylord’s, Inc., 764 N.W.2d 359, 364 (Minn. 2009).
A mechanic’s lien provides persons who contribute to improving any real estate “by
performing labor, or furnishing skill, material or machinery . . . under contract with the
owner of such real estate” to place a nonconsensual lien on the improved property if that
6
person is not compensated for the improvement. Minn. Stat. § 514.01 (2020). The lien
attaches to the property when the lienable work begins on the property. Minn. Stat.
§ 514.05, subd. 1 (2020). As a prerequisite, a purported lienholder generally must provide
the property owner prelien notice. Minn. Stat. § 514.011. If there is a written contract for
the lienable work, as is the case here, the statutory notice language must be part of the
contract. Id., subd. 1. Failure to comply strictly with the prelien- notice requirements
defeats a mechanic’s lien claim. Wong v. Interspace -W., Inc., 701 N.W.2d 301, 302- 03
(Minn. App. 2005), rev. denied (Minn. Oct. 18, 2005).
One exception to the prelien- notice requirement is when the contractor is “ a party
under direct contract with the owner ” and the contractor will not “c ontract with any
subcontractors or material suppliers to provide labor, skill or materials for the
improvement.” Minn. Stat. § 514.011, subds. 1-2. “Owner” is defined to include “the
owner of any legal or equitable interest in” the improved property. Minn. Stat. § 514.011,
subd. 5. We “construe the pre-lien notice requirement liberally to uphold notice protections
for property owners” and “construe exceptions narrowly to limit instances in which notice
is not required.” See S.M. Hentges & Sons, Inc. v. Mensing, 777 N.W.2d 228, 232 (Minn.
2010).
Landform first argues that the district court failed to construe all facts in their favor
as the nonmoving party by disregarding its second declaration and determining that it failed
to create a fact dispute because it “contradict[ed] its Complaint, mechanic’s lien, and work
order.” This is a question of law that we review de novo. See STAR Ctrs., Inc. v. Faegre
7
& Benson, L.L.P., 644 N.W.2d 72, 77 (Minn. 2002). Whether the district court properly
excluded Lazan’s second declaration is dispositive.
It is undisputed that WH Diversified had an equitable interest in part of the property
as of December 21, 2018. See Dolder v. Griffin , 323 N.W.2d 773, 779 (Minn. 1982)
(holding that signatory to enforceable purchase agreement owns equitable interest in
relevant property). The critical is sue on appeal therefore is when Landform began its
lienable work. If Landform began lienable work before December 21, 2018, then
Landform, which did not directly contract with the Lefebvres, needed to give the Lefebvres
prelien notice as the only property owners. Minn. Stat. § 514.011, subds. 1-2. However,
if Landform did not begin lienable work before December 21, 2018, then its contract was
with the equitable owner, WH Diversified, and the owner exception may apply. Id.
Lazan’s second declaration is the only evidence in the record that casts doubt on whether
Landform began the lienable work before December 21, 2018.
Landform argues that the only way the district court could properly exclude the
declaration is through t he “sham affidavit” doctrine, which it argues does not apply.
Generally, the district court “must not weigh facts or determine the credibility of affidavits
and other evidence” when adjudicating a motion for summary judgment. See Montemayor
v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017) (quotation omitted). However,
the sham-affidavit doctrine prevents a party from creating a material issue of fact at the last
moment to avoid summary judgment. Augustine v. Arizant Inc., 751 N.W.2d 95, 101
(Minn. 2008).
8
In particular, Landform argues that the sham-affidavit doctrine applies only to prior
deposition testimony. Landform is correct that appellate courts have applied the sham -
affidavit doctrine in cases involving deposition testimony. See Hoover v. No rwest Priv.
Mortg. Banking, 632 N.W.2d 534, 541 n.4 (Minn. 2001) (stating that “ affidavits that
contradict earlier deposition testimony generally may not be used to create a genuine issue
of fact”). However, appellate courts have also applied this doctrine in situations with other
inconsistencies. See, e.g., Hagen v. Steven Scott Mgmt., Inc., 963 N.W.2d 164, 172 (Minn.
2021) (disregarding “self -serving affidavit” that contradicts employment offer) ; Sampair
v. Village of Birchwood, 784 N.W.2d 65, 75 (Minn. 2010) ( evaluating purported
contradiction between affidavit and attached letters in context of sham -affidavit doctrine );
Risdall v. Brown- Wilbert, Inc. , 759 N.W.2d 67, 72 (Minn. App. 2009) (applying sham -
affidavit doctrine in securities -fraud cas e involving affidavit conflicting with private -
placement memorandum) , rev. denied (Minn. Mar. 17, 2009). Thus, the sham -affidavit
doctrine applies to Lazan’s first written sworn declaration.
Here, the district court noted, and we agree, that Landform consistently claimed that
the lienable work began on December 18, 2018. Landform included that date in its
mechanic’s lien statement, in its complaint, and in Lazan’s first declaration. Only after the
Lefebvres argued to the district court that Landform’s li enable work began before WH
Diversified possessed an equitable interest in the property did Lazan submit his second
declaration calling the accuracy of that date into doubt. On these facts, it appears that
Lazan’s section declaration seeks to muddy the record to survive summary judgment and,
therefore, the sham-affidavit doctrine applies .
9
Landform next argues that, even if the sham -affidavit doctrine applies, the two
declarations do not contradict each other. See Banbury v. Omnitrition Intern, Inc., 533
N.W.2d 876, 881 (Minn. App. 1995). Landform asserts that, because the first declaration
states that lienable work began “on or shortly after December 18, 2018,” and the second
declaration claims that no lienable work began “ until after December 21, 2018,” the two
declarations do not conflict. But the second declaration conflicts with the first. The first
declaration, which states that lienable work began on “or slightly after” December 18,
leaves open the possibility that the lienable work began on December 18 or between
December 18 and December 21. By stating that lienable work began “after December 21,”
the second declaration forecloses those possibilities. Even viewing the declarations in the
light most favorable to Landform, we reject Landform’s argument that the second
declaration is “clarificatory.”
Landform argues that no lienable work began before December 21, 2018. Landform
argues that, because it only performed “de minimis” work before January 2019, notice was
not required. See Minn. Stat. § 514.01; Phillips-Klein Co s. v. Tiffany P’ship, 474 N.W.2d
370, 374 (Minn. App. 1991) ( concluding that obtaining “financing, zoning variances, and
coordinated leasing arrangements” was not lienable work). But this argument relies
primarily on Lazan’s second declaration . Because we conclude that the district court
properly excluded Lazan’s second declaration, the record does not support this argument.
Finally, Landform focuses on the date of contract formation to argue that the date
on the work order does not determine when the contract was formed. But this argument
both ignores Landform’s admissions stating that the lienable work began on December 18
10
and overstates the importance of the date WH Diversified contracted with Landform. First,
Landform’s complaint lists December 18, 2018, as the date lienable work began on the
property. While the complaint standing alone may not be conclusive, the complaint is
admissible “as an admission or for impeachment.” Carpenter v. Tri-State Tel. & Tel. Co.,
211 N.W. 463, 464 (Minn. 1926). In addition, Landform’s mechanic’s lien statement and
Lazan’s first declaration also state that the lienable work began on December 18, 2018.
Thus, Landform’s own admissions provide sufficient evidentiary bases to conclude that
Lazan’s second declaration may be excluded under the sham -affidavit doctrine and
therefore no genuine issue of material fact exists about the date that WH Diversified entered
into its contract with Land form.
As explained above, when excluding Lazan’s second declaration, summary
judgment is appropriate in this case. Based on the complaint, mechanic’s lien statement,
and Lazan’s first declaration, lienable work began on December 18, 2018. At that time,
WH Diversified did not have any ownership interest in the property. Thus, the owner
exception to the prelien- notice statute does not apply. Minn. Stat. § 514.011, subds. 1-2.
Landform was therefore required to provide prelien notice to the Lefebvres bec ause they
were the only owners of the property on December 18. Id. Because Landform failed to
provide that prelien notice, its mechanic’s lien is invalid and summary judgment is
appropriate. Wong, 701 N.W.2d at 302- 03.3

3 Because we affirm summary judgment based on the district court’s analysis, we need not
analyze the Lefebvres’ alternative basis to affirm summary judgment.
11
II. Landform forfeited its argument th at it is entitled to a mechanic’s lien based
on the work it performed under the second work order.

On the last page of its principal brief, Landform argues that, because no party
contests that WH Diversified held an equitable interest in the property in March 2019 when
it approved the second work order with Landform, Landform should be entitled to a
mechanic’s lien for work completed under that work order. Landform’s argument consists
of one paragraph with no citation to legal authority. It does not expand upon its argument
in its reply brief. It is Landform’s burden to prove that the district court erred by not finding
a mechanic’s lien under the second work order. Waters v. Fiebelkorn , 13 N.W.2d 461,
464-65 (Minn. 1944) (“[O]n appeal error is never presumed. It must be made to appear
affirmatively before there can be reversal . . . [and] the burden of showing error rests upon
the one who relies upon it.”); see also State, Dep’t of Labor & Indus. v. Wintz Parcel
Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (stating that appellate courts decline to
reach inadequately briefed issues). For that reason, we conclude that Landform forfeited
this issue.
Affirmed.