Veronica Anczarski v. Rick Palm ( 2015 )

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1828
Veronica Anczarski,
Appellant,
vs.
Rick Palm, et al.,
Respondents.
Filed November 9, 2015
Affirmed
Chutich, Judge
Hennepin County District Court
File No. 27-CO-13-6942
Veronica Anczarski, Minneapolis, Minnesota (pro se appellant)
Bradley Crawford Mann, Elliot Law Offices, P.A., Minneapolis, Minnesota (for
respondents)
Considered and decided by Chutich, Presiding Judge; Ross, Judge; and Larkin,
Judge.
UNPUBLISHED OPINION
CHUTICH, Judge
Appellant Veronica Anczarski, appearing on her own behalf, appeals the dismissal
with prejudice of her complaint alleging negligent misrepresentation against respondents
Rick Palm and Palm Trading Co. Because the record supports the district court’s finding
that respondents did not intentionally or recklessly make a misrepresentation, we affirm.
FACTS
Veronica Anczarski was the winning bidder in an online auction for a commercial
cooking range sold by Rick Palm and Palm Trading Co. (together, Palm). Anczarski
agrees that in making her purchase through USPowerBid she was required to and did
check a box agreeing to abide by the terms and conditions of the auction.
The auction’s terms and conditions explicitly provided:
Bidders shall examine or inspect items prior to the day of the
auction if this is available. ALL ITEMS ARE SOLD AS IS,
WHERE IS AND WITH ALL FAULTS. NEITHER
SELLER NOR USPowerBid MAKES ANY WARRANTY,
EXPRESS OR IMPLIED, AS TO THE NATURE,
QUALITY, VALUE OR CONDITION OF ANY ASSET.
USPowerBid AND SELLER EXPRESSLY DISCLAIM
ANY WARRANTY OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE OR NON-
INFRINGEMENT.
...
Buyer acknowledges that it has had the opportunity to inspect
all assets prior to tendering its bid and waives any claims
against Auctioneer and/or seller relating to asset photographs
or descriptions.
...
USPowerBid and the seller assume no responsibility for, and
make no representations or warranties concerning
descriptions of assets contained in marketing materials for the
auction. It is the bidders’ obligation to verify such
descriptions prior to the auction.
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At trial, Anczarski did not dispute the content of the terms and conditions nor her
consent to those terms. She also acknowledged that she was an experienced USPowerBid
buyer.
Dimensions of the range were listed on the USPowerBid website as 60.5 inches by
32 inches by 36 inches. Anczarski disputed the accuracy of these measurements and
alleged that Palm deliberately misstated the dimensions so that prospective buyers would
believe the range would fit through a standard doorway. Palm claimed that the
measurements were accurate as to the main body of the range and that components such
as legs, motor, and shelving could be detached to fit the range through a standard
doorway.
The parties agree that Palm advertised that the range was available for inspection
on four different dates before the close of the auction and that Anczarski did not
physically inspect the range before purchase or delivery.
Two days after the close of the auction, the range was delivered from Palm’s
warehouse to Anczarski’s bakery by Anczarski’s contractor, Master Transfer (Master).
Upon arrival, the Master employee could not fit the range through the bakery’s doorway.
Anczarski informed Palm by phone that Master would be returning the range to Palm’s
warehouse that same evening; Palm agreed to hold it for the night and redeliver it the
next day and help Anczarski move it through her doorway. The Master employee who
delivered the range could not return it because his shift ended, so Master dispatched
another driver to the bakery.
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In the meantime, the range was left unattended outside the bakery. Unfortunately,
before the second driver arrived, the range was vandalized. The stolen materials and
fixtures were collectively valued higher than the purchase payment of the range at
auction.
At trial before the district court, Anczarski sought return of the purchase payment
plus other costs, based on a theory of negligent misrepresentation by Palm. Palm sought
dismissal of Anczarski’s complaint and affirmatively sought damages for the cost of
restoring the range to working condition.
The district court concluded that a valid contract was formed between Anczarski
and Palm and that the contract was fully performed when the range was initially placed in
the Master vehicle for delivery from Palm’s warehouse to the bakery. The district court
also determined that the range was delivered as conforming goods and that, at the time of
the vandalism, Anczarski owned the range and was solely liable for all risk of loss.
Additionally, the district court found that the dimensions listed on USPowerBid were not
false as “general dimensions” and that Anczarski had the obligation to inspect the range
before buying it.
The district court held that Palm should retain the range’s purchase payment, but
denied Palm’s claim for damages. Anczarski’s claims were dismissed with prejudice.
She now appeals.
DECISION
Anczarski claims that the district court erred in dismissing her claim of negligent
misrepresentation against Palm. We disagree.
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In reviewing an appeal from a bench trial, we give great deference to the district
court’s factual findings and do not set them aside unless clearly erroneous. Rasmussen v.
Two Harbors Fish Co., 832 N.W.2d 790, 797 (Minn. 2013). Findings of fact are clearly
erroneous only if the reviewing court is “left with the definite and firm conviction that a
mistake has been made.” Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987).
Additionally, “due regard shall be given to the opportunity of the trial court to judge the
credibility of the witnesses.” Minn. R. Civ. P. 52.01. Legal questions are reviewed de
novo. Rasmussen, 832 N.W.2d at 797.
The Minnesota statutes place limits on common-law misrepresentation claims,
providing that “[a] buyer may not bring a common law misrepresentation claim against a
seller relating to the goods sold or leased unless the misrepresentation was made
intentionally or recklessly.” Minn. Stat. § 604.101, subd. 4 (2014).
Applying these principles here, we conclude that the record supports the district
court’s finding that Palm’s representation concerning the range’s dimensions was not
false and that Palm therefore did not intentionally or recklessly misrepresent those
dimensions. Palm provided testimonial and documentary evidence that the listed
measurements were generally accurate as to the body of the range and that various
components could be removed to fit the range into a vehicle or through a doorway.
Accordingly, the district court properly dismissed Anczarski’s negligent-
misrepresentation claim and ruled that Anczarski is not entitled to recover any damages
from Palm.
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Anczarski further argues that USPowerBid’s terms and conditions were voidable
because they contained invalid exculpatory clauses that purported to shield Palm from
liability for willful and wanton negligence, and intentional torts. Anczarski did not raise
this theory before the district court. An appellate court must consider only issues that
were presented to and considered by the trial court, and a party may not raise a new
theory on an issue litigated at the district court. Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988).
Even if we addressed the substance of this argument, however, it lacks merit. To
be sure, an exculpatory clause is construed against the party that seeks to benefit from it
and may be unenforceable if it “purports to release the benefited party from liability for
intentional, willful or wanton acts.” Yang v. Voyagaire Houseboats, Inc., 701 N.W.2d
783, 789 (Minn. 2005). But here, given the district court’s findings about the propriety of
Palm’s conduct, nothing in the record shows any intentional, willful, or wanton act that
would support this claim.
Affirmed.
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