Opinion
No. C6-96-468.
Filed September 17, 1996.
Appeal from the District Court, Ramsey County, File No. C1-94-10820.
Mark W. Bay, Therese Dosch Anderson, Peterson, Engberg Peterson, (for Appellants William J. and Joseph Ralph Begin)
Hubert H. Humphrey, Attorney General, Amy V. Kvalseth, Assistant Attorney General, (for Respondent Department of Administration)
Considered and decided by Amundson, Presiding Judge, Huspeni, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § subd. 3 (1994).
UNPUBLISHED OPINION
Appellants contend that the trial court erred when it enforced a settlement agreement and determined that it lacked authority to alter the agreement and give them additional time to comply. We affirm.
FACTS
Appellant William Begin and his son, appellant Joseph Begin, owned and managed Elm Lane Court, a manufactured home park in Willmar, Minnesota. In late 1992 or early 1993, respondent State of Minnesota began investigating the Begins' alleged consumer fraud under Minn. Stat. § 327B.12, subd. 2 and 325F.69, subd. 1. The alleged violations consisted primarily of selling manufactured homes without a dealer license and retaining the certificates of title as security for payment of the purchase price rather than transferring title immediately upon sale. The state explained to the Begins that each act of consumer fraud created a separate violation under Minn. Stat. § 8.31, subd. 3. Shortly thereafter, the Begins stopped selling manufactured homes and began transferring the 149 certificates of title on the homes they had already sold.
To avoid litigation on the consumer fraud claims, the Begins and the attorney general entered an Assurance of Discontinuance authorized under Minn. Stat. § subd. 2b. In conjunction with signing the Assurance, the Begins paid a civil penalty of $15,000 to the state. The parties stayed a $100,000 civil penalty, based on the condition that the Begins would comply with the Assurance and not violate any of its terms. The court approved that Assurance, as well as an amended Assurance of Discontinuance that the parties entered into in February 1995. Throughout this negotiation process, the Begins knew that they had the right to an attorney, but they chose to represent themselves.
When the state later learned that the Begins had violated the Assurance by retaining three of the certificates of title, the state moved to enforce the Amended Assurance and the $100,000 penalty.
After an evidentiary hearing, at which the Begins appeared pro se, the court found that they had failed to make reasonable efforts to comply with the Amended Assurance and ordered judgment against them for $100,000. The Begins moved for amended findings or new trial, requesting a "reasonable opportunity" to transfer any remaining certificates of title under the Amended Assurance. The court denied the motion, but noted, "[T]he parties should consider granting [the Begins] additional time to comply with the Assurance, under such terms as are acceptable to the State." The court concluded that it lacked authority to grant them that specific time, however. This appeal followed.
DECISION
In their motion for a new trial, the Begins failed to set out specific alleged errors for the trial court to consider. When a party fails to raise an issue before the trial court in a motion for new trial, our review is limited to whether the evidence supports the findings and whether the findings support the conclusions of law. See Sauter v. Wasemiller , 390 N.W.2d 200 (Minn. 1986). We will not overturn the trial court's findings of fact unless they are clearly erroneous. Minn.R.Civ.P. 52.01.
I. Enforcement of the Assurance
The Begins argue that the trial court order is an imposition of a penalty for civil contempt, based on their interpretation of Minn. Stat. § subd. 2b (1994). Section 8.31, subdivision 1, authorizes the attorney general to investigate violations of the law regarding consumer fraud. The Begins correctly note that the last sentence of subdivision 2b refers to the punishment of contempt for "failure to comply with the assurance." Id. , subd. 2b. But nowhere in the pleadings did the state mention contempt. Rather, the state cited specific violations of the Amended Assurance and sought to enforce the remedy that the Amended Assurance had provided. Paragraph 19 of the Amended Assurance provides, "[the Begins] also understand that the Attorney General may initiate independent legal proceedings for any violation of this Amended Assurance which also violates Minnesota law." The trial court did not err in treating this case as an enforcement of a settlement agreement, not as a contempt action.
The Begins contend that the $100,000 civil penalty is unenforceable because the Amended Assurance is ambiguous with regard to what actions the Begins were required to take. The Amended Assurance served as a settlement of a lawsuit and, as such, is a binding contract. See Theis v. Theis , 271 Minn. 199, 204, 135 N.W.2d 740, 744 (1965). Whether the terms of a contract are ambiguous is a question of law. Current Tech. Concepts v. Irie Enterps., Inc. , 530 N.W.2d 539, 543 (Minn. 1995). We review questions of law de novo. See Frost-Benco Elec. v. Minnesota Pub. Utilities , 358 N.W.2d 639, 642 (Minn. 1984). In determining whether a contract is ambiguous, "a court must give the contract language its plain and ordinary meaning." Current Tech. Concepts , 530 N.W.2d at 543.
The Begins claim that paragraphs C and J in the "Relief" section of the Amended Assurance are ambiguous because they do not set a deadline by which the Begins should have completed the title transfers. We disagree. Condition C provides: "[The Begins] will not handle or retain any of the titles to any of the homes not owned by them." No deadline date is necessary in this condition, because it implicitly requires the Begins to transfer title concurrent with the sale of property. Condition J provides: "[The Begins] will transfer title to the manufactured homes they have sold to the correct purchasers of the homes." This condition simply comports with the statute that requires title transfer "immediately" upon transfer of ownership of a motor vehicle. See Minn. Stat. § subd. 1 (1994).
We are not persuaded by the Begins' interpretation of these conditions, primarily because they have taken these contract terms out of context and have sought to examine them without reference to the overall purpose and meaning of the Amended Assurance. We must interpret the contract to give meaning to all of its provisions. Current Tech. Concepts , 530 N.W.2d at 543.
As the title of the settlement suggests, the "Amended Assurance of Discontinuance" is the Begins' promise not to continue their prior fraudulent practices in business. As a consequence of their violation of the Prevention of Consumer Fraud Act, the Begins promised to stop acting as brokers and sellers of manufactured homes and agreed to transfer all titles to the proper owners of property. In exchange, they avoided litigation. In light of this contract as a whole, the lack of a deadline date in the provisions does not render the contract ambiguous because the Begins were to rectify the situation as soon as reasonably possible to prevent any further harm to consumers. The trial court imposed a reasonable standard, finding the Amended Assurance required the Begins to make reasonable efforts to transfer title within a reasonable time after entry of the initial Assurance. The plain language of these conditions supports that interpretation and is not ambiguous.
Next, the Begins contend they were entitled to notice that they had violated the Amended Assurance and time to remedy the situation and avoid the penalty. We disagree. The terms of the settlement do not require the state to give the Begins any such notice. On the contrary, in the Amended Assurance, the Begins agreed, "If the District Court finds that [the Begins] have violated any term of this Amended Assurance, a civil penalty of * * * $100,000.00 shall be immediately due and payable to the State of Minnesota and judgment may then enter for that amount." The Begins agreed that, "by entering into this Amended Assurance; the bind themselves to obey its terms." These very specific terms of the agreement show that the Begins had the responsibility to abide by the conditions of the Amended Assurance. The penalty, which is "immediately due and payable," served as the deterrent. The state had no duty to notify.
The Begins also claim it was impossible for them to transfer title on the three remaining homes when they had never owned the homes or possessed the title to them. The record, however, disproves this argument and shows that they owned, possessed, and resold these homes. In the case of the title to the Aboytes home, the record shows that although Joe Begin had sold them the home in June 1992, the Department of Motor Vehicles (DMV) certificate of title still bore the name of a distant prior owner on it as of May 25, 1995. The Pecheco home had been abandoned by a former owner. Begin sold the home and transferred title to the Hernandezes in February 1993, but, after selling it again to the Pechecos, the DMV certificate of title report in May 1995 still showed Hernandez as the owner of the property. Similarly, Begin signed a purchase agreement for a home with Ramirez/Lopez in October 1991, but, as of the May 1995 DMV report, the certificate of title for the home still bore a prior owner's name. This evidence is sufficient to support the district court's finding that the Begins violated the terms of the Amended Assurance by failing to make reasonable efforts to transfer title on these three remaining properties within a reasonable time after entry of the initial and amended Assurances. The trial court properly enforced the Amended Assurance.
II. Unconscionable Penalty
For the first time on appeal, the Begins contend the $100,000 judgment is unconscionable under the circumstances. They failed to raise the unconscionability issue at trial or in post-trial motions. This court will not consider a new issue or a new theory of an issue for the first time on appeal. See Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988). Thus, this issue is not properly before this court on appeal.
III. Additional Time to Comply
The Begins contend the trial court erred when it determined it did not have the authority to grant them additional time to transfer titles and comply with the Amended Assurance. According to the Begins, the Amended Assurance is an order of the court and the court has the duty of equitable enforcement. We disagree.
Contrary to the Begins' argument, the Amended Assurance is a negotiated instrument, a settlement between the attorney general and the Begins. See Minn. Stat. § 8.31, subd. 2b (allowing attorney general to accept assurance from anyone who has allegedly violated Prevention of Consumer Fraud Act). The trial court is not a party to the contract here. A stranger to the contract may not later modify it. See Sernak v. Krenzen Cadillac, Inc. , 415 N.W.2d 92, 94 (Minn.App. 1987) (holding that vehicle service contract between dealer and customer did not include warranty company that administered service contract). The court here exercised its power to approve the assurance, but was not involved in the negotiations. Like the service administrator in Sernak , the trial court should not be considered a "party" to the contract, because it is not a stakeholder in the situation. The court is the objective party that approves or rejects assurances based on their merits. The trial court acted properly when it raised the extension issue and deferred to the attorney general for a decision.