Opinion
No. 43295.
August 4, 1972.
Appeal and error — nonappealable order — order for judgment following special findings.
Actions — action to recover increased construction cost — lack of basis for imposing liability.
Action in the Hennepin County District Court to recover damages incurred in installation of a water system for defendant village of Spring Park, which damages were allegedly due to the negligence of defendant village and defendant Johnson Brothers Highway and Heavy Constructors, Inc. The case was tried before Dana Nicholson, Judge, and a jury, and on the basis of a special verdict, the court ordered judgment against plaintiff in favor of defendant construction company for $970.51, the issues between plaintiff and defendant village having been settled. Plaintiff appealed from said order, which also denied its motion to amend its complaint. Affirmed.
Thiel Sorenson and Russell A. Sorenson, for appellant.
Carlsen, Greiner Law and Timothy M. O'Brien, for respondent.
Heard before Knutson, C. J., and Rogosheske, Peterson, and Kelly, JJ.
Plaintiff, McWilliams Construction, Inc., seeks review of a post-trial decision of the trial court denying its motion to amend its complaint and ordering entry of a money judgment against plaintiff in favor of defendant Johnson Brothers Highway and Heavy Constructors, Inc., pursuant to a special verdict of a jury. In ordering the judgment, the trial court refused to order judgment for plaintiff on its claim against defendant Johnson Brothers for an additional construction expense which was based upon an alleged breach of an oral agreement concerning the time schedule of the respective parties in constructing sewer and water mains in the village of Spring Park. During trial, the court reserved decision as to the issue of liability on this claim even though the jury was permitted to find on special interrogatories that defendant Johnson Brothers delayed its performance in the excavation and installation of sewer mains, thus delaying plaintiff's installation of water mains, and that such delay resulted in additional expense to plaintiff of $4,500.
Judgment was entered subsequent to commencement of this appeal, and time for appeal from the judgment has expired.
Reading the procedural record in the light most favorable to plaintiff, it is our conclusion that plaintiff is attempting to appeal from an order directing the entry of judgment following special findings by a jury, which order, because it is not final, is not appealable of right. Cucchiarella v. Kolodzieg, 283 Minn. 515, 166 N.W.2d 100 (1969). Accordingly, defendant Johnson Brothers' motion to dismiss plaintiff's appeal, which had been filed before oral argument and upon which we reserved decision, is granted.
Although we do not regard the issue of defendant Johnson Brothers' liability to plaintiff as one justifying discretionary review, we have, in view of the submission of written and oral argument, nevertheless considered the merits of the appeal. We are persuaded that the trial court properly denied recovery by plaintiff for the reason, expressed in the court's supplementary memorandum, that no valid legal theory upon which recovery could be based exists. It is also our conclusion after reading the transcript of the testimony that plaintiff's claim as to an agreement made by defendant Johnson Brothers concerning its schedule for completing the excavation and installation of the sewer mains was not established by the evidence.
Affirmed.