David H. Toth, Appellant, vs. Gerald Arason, Individually, and d/b/a Arason's Body Shop, Respondent.

David H. Toth, Appellant, vs. Gerald Arason, Individually, and d/b/a Arason's Body Shop, Respondent. A04-769, Court of Appeals Unpublished, May 17, 2005. This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

  STATE OF MINNESOTA

IN COURT OF APPEALS

A04-769

 

David H. Toth,
Appellant,
 
vs.
 
Gerald Arason, Individually, and
d/b/a Arason's Body Shop,
Respondent.

 

Filed May 17, 2005

Affirmed in part and reversed and remanded in part

Peterson, Judge

 

Koochiching County District Court

File No. C602169

 

Kay Nord Hunt, Lommen, Nelson, Cole & Stageberg, P.A., 1800 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402; and

 

Lyndon F. Larsen, 438 Third Street, International Falls, MN  56649 (for appellant)

 

Steven A. Nelson, 210 Fourth Avenue, International Falls, MN  56649 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge; Peterson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

Appellant sued respondent body shop, which repaired his car, alleging violations of the Deceptive Trade Prices Act, the Truth in Repairs Act, and the Consumer Fraud Act.  The district court awarded appellant $803.44 in damages, and in an amended order, granted respondent costs and disbursements pursuant to Minn. R. Civ. P. 68.  We affirm in part and reverse and remand in part.

FACTS

            In February 1997, appellant David H. Toth bought a new Chevrolet pick-up truck.  In August 1997, the truck, which had been driven 4,792 miles, was damaged in an accident.  Toth notified his insurer, Western National Insurance Company, about the accident, and Western told Toth to get a couple of repair estimates. 

            Toth contacted respondent Gerald Arason, d/b/a Arason's Body Shop, to get an estimate.  Arason towed Toth's truck to the body shop.  Arason prepared a visible-damage quotation.  The visible-damage-quotation form contains index codes for designating how a repair will be performed and, if a part is to be replaced, whether it will be replaced with a new part, a used part, an aftermarket part, or a rebuilt part.  Arason used check marks to designate whether each part would be repaired or replaced, but he did not use the index codes.  The estimated cost for a replacement radiator was $313 and for a replacement air conditioning (A/C) condenser was $443.25.  The total visible-damage quotation was $8,259.58. 

            Arason did not provide a copy of the visible-damage quotation to Toth.  Arason testified that he did not provide Toth a copy because "[h]e wasn't interested" and he had instructed Arason to "deal with my insurance people."  Arason admitted that Toth specified that he wanted new parts to be used. 

            Darris Winter, an independent insurance adjuster, went to Arason's to inspect Toth's truck on behalf of Western.  Winter also contacted Toth, who told him that the truck was new and still under warranty.  In a written estimate, Winter estimated the total cost of repairs at $10,042.52, which included a $250 deductible to be paid by Toth.  The estimated cost for a radiator was $356 and for an A/C condenser was $443.25.  The estimate was based on the cost of original equipment manufacturer (OEM) parts.  An OEM replacement part is a part supplied by the manufacturer that conforms to the original equipment standards.  An aftermarket part, also known as a non-OEM part, is supplied by a company other than the vehicle's manufacturer.  Toth testified that Winter "said there wouldn't be any question as to what kind of parts would be put in.  He said it would be GM, otherwise known as OEM." 

            Arason was unable to obtain a radiator and A/C condenser through a GM dealer because the parts were on a six-week backorder nationwide.  Arason told Toth that he could not get a radiator through a GM dealer but could get one through another dealer and "either way, it would be a one-year guarantee whether you bought it from General Motors or if I bought it from my radiator supplier."  Arason testified that he never told Toth that the radiator "was an OEM manufactured radiator, manufactured by the General Motors people," but he did tell Toth that "they make radiators for General Motors."   Arason testified that he did not discuss with Toth the possibility of waiting six weeks to get parts from a GM dealer because, from the beginning, Toth had said he wanted his truck repaired as soon as possible and that was the reason he brought it to Arason's.   Arason acknowledged that a manufacturer's warranty is important to a vehicle owner and that he never provided Toth with a statement that told him that installing a non-OEM radiator would void the manufacturer's warranty for the truck. 

            Arason testified that he told Winter that he was installing "an OEM replacement radiator," and he thought Winter understood what that meant.  Arason admitted that an insurance company will not pay on an oral agreement and that an agreement with an insurance company must always be in writing. 

            Arason was quoted a list price of more than $600 for an OEM radiator.  The cost to Arason would be 25 to 30% less than the list price.  Through Northern Factory Sales, Arason obtained a radiator for $197.26 and an A/C condenser for $151.66.  Arason admitted that he did not provide a written statement to either Toth or Western showing that he had installed a non-OEM radiator and A/C condenser.  Arason testified that the A/C condenser that he installed in Toth's truck was manufactured by Delco and was the same condenser used by GM.  AC Delco is a General Motors subsidiary.  Arason testified that the radiator he installed in Toth's truck was a heavier-duty radiator with a greater cooling capacity and more durability than a GM radiator. 

            The repairs were completed by mid-September 1997.  As calculated in Winter's estimate, Arason's was paid $10,042.52 for repairing the truck.  Toth paid a $250 deductible.  Arason did not provide Toth with an itemized bill.  The final bill states, "Parts labor painting material to repair front of truck." 

            In December 1997, antifreeze began leaking from Toth's truck.  Toth brought the truck back to Arason's, but Arason sent him to Sheridan Motors.  Sheridan replaced an engine-coolant hose, but the leaking continued.  Toth returned to Sheridan several times to have antifreeze put in the truck.  Sheridan paid for the antifreeze because the truck was still under warranty.  In February 2000, because the warranty for the truck was soon to expire, Sheridan placed dye in the radiator to determine the cause of the leak.  The dye showed a leak in the radiator's side tank.  To fix the problem, the radiator needed to be replaced.  In February 2000, Toth learned from Sheridan that the manufacturer's warranty for the radiator had been voided because the radiator was an aftermarket radiator.  Toth could not afford to replace the radiator, so he contacted Arason and asked him to install a new radiator.  Arason refused and offered only to rebuild the radiator, which was unacceptable to Toth. 

            In March 2000, Toth contacted Western about the radiator, and Western began investigating.  Investigators Peter Dahl and Nancy Jacobson went to Arason's on March 28, 2000.  In a file memo regarding the visit, Dahl wrote that Arason did not provide Dahl and Jacobson

with any paper work relating to parts that he installed on [Toth's] vehicle.  Per the invoice that he provided to David Toth and service work from Sheridan Motors it already appears that Arason installed the aftermarket radiator and condenser despite being paid for OEM parts at a substantially higher cost.

 

Dahl's file memo also states that Toth provided the investigators with an invoice from Northern Factory Sales "showing that Arason purchased what appears to be non OEM radiator and condenser with what appears to be the appropriate part numbers for this vehicle.  This investigator phoned Northern Factory Sales and confirmed that these parts are aftermarket and not OEM parts."   

            Jacobson testified that under Minnesota law, an insurance company must specify in a repair estimate that a part not recognized by the manufacturer is being used, and when nothing is indicated on the estimate, it means that an OEM part is to be used. 

            The repairs performed by Arason included painting and adding a clear-coat finish.   In 1998, Toth noticed paint peeling from the truck doors.  William Hardwig, the owner and operator of North Country Collision, a body shop, determined that the paint was peeling due to improper surface preparation.  Arason opined that the peeling was due to hail or collision damage.  Hardwig testified that the peeling could not have been caused by hail damage or by the truck hitting a mailbox.  Toth testified that only the right door sustained hail damage, but paint was peeling from both doors and, on the right door, paint was peeling in places that did not sustain hail damage.  The estimated cost to repair the paint problem was $1,312.73.

            In March 2000, Toth filed a complaint about the non-OEM radiator with the Minnesota Attorney General's office.  In April 2000, Arason informed the attorney general's office that he had given Toth a check for $100 for expenses and that Toth would be coming in the following week "to make arrangements."  Arason had written "as agreed" on the check.  Toth was unsure what "as agreed" meant, so he went back to Arason's the next day and requested that Arason "put in writing just exactly what he was going to fix on my truck."  Arason refused, and he did not respond to Toth's alternative suggestion that Arason pay the amount that it would cost to have the radiator replaced and the paint problem fixed elsewhere.  Toth did not cash Arason's check.

            Because of the leaking radiator, Toth incurred $235.93 in expenses for radiator testing and adding coolant after his warranty expired.  In April 2002, Sheridan replaced the radiator in Toth's truck at a cost of $810.44.  The estimated cost to replace the A/C condenser with an OEM condenser was $503.87.  Toth did not replace the condenser.  Toth testified that the condenser puts out cold air, but "[i]t doesn't seem to be as cooling." 

Toth sued Arason, individually and d/b/a Arason's Body Shop, alleging violations of the Deceptive Trade Prices Act, the Truth in Repairs Act, and the Consumer Fraud Act.  The case was tried to the court.  The district court awarded Toth $803.44 in damages for replacement of the radiator installed by Arason but otherwise denied Toth's claims.  The district court later issued an amended order that awarded Arason costs and disbursements under Minn. R. Civ. P. 68.  The district court denied Toth's motion for a new trial or amended findings.  This appeal followed.

D E C I S I O N

            Generally, the decision whether to grant a new trial lies within the district court's discretion and will not be disturbed on appeal absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  But when the decision is based on an error of law, a de novo standard of review applies.  Id.

"Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and 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.  In applying Minn. R. Civ. P. 52.01, "we view the record in the light most favorable to the judgment of the district court," and we will not reverse the district court's judgment merely because we view the evidence differently.  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999); see Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000) (stating "[t]hat the record might support findings other than those made by the [district] court does not show that the . . . findings are defective").  The district court's factual findings must be clearly erroneous or "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole" to warrant reversal.  Id. (quotation omitted).  "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."  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation and citation omitted).  "If there is reasonable evidence to support the district court's findings, we will not disturb them."  Rogers, 603 N.W.2d at 656.

"A district court's conclusions of law are not binding on this court and are reviewed de novo."  Rainforest Cafe, Inc. v. State of Wisconsin Inv. Bd., 677 N.W.2d 443, 450 (Minn. App. 2004).  "Questions of statutory interpretation are issues of law that we review de novo."  Illinois Farmers Ins. Co. v. Glass Service Co., 683 N.W.2d 792, 803 (Minn. 2004).

I.

            The district court concluded that Minn. Stat. § 325 F. 56, subd. 2 (2002), which defines the term "repairs" for purposes of Minn. Stat. §§ 325 F. 56 to 325 F. 66, applies to the repairs performed by Arason.  Toth argues that Minn. Stat. § 325 F. 60, subd. 1 (2002), not Minn. Stat. § 325 F. 56, subd. 2, applies.  It is not apparent why the district court believed it was necessary to determine whether the definition of "repairs" in section 325 F. 56, subd. 2, applies to Toth's claim under section 325 F. 60 because section 325 F. 60, subd. 1, begins by stating, "[n]otwithstanding the provisions of section 325 F. 56, subdivision 2, for the purpose of this section "repair" means," and then states a definition of "repair."  Therefore, even if the definition of "repairs" in section 325 F. 56, subd. 2, might otherwise apply to the repairs that Arason performed, for purposes of a claim under section 325 F. 60, the definition of "repair" in section 325 F. 60, subd. 1, applies.

            Toth claimed damages based on a violation of Minn. Stat. § 325 F. 60, subd. 1, which states:

Notwithstanding the provisions of section 325 F. 56, subdivision 2, for the purpose of this section "repair" means . . . any repair work performed for a total value of more than $50, including the price of parts and materials, to restore a malfunctioning, defective, or worn motor vehicle, appliance, or dwelling place used primarily for personal, family, or household purposes and not primarily for business or agricultural purposes.  "Repairs" do not include service calls or estimates.  Upon completion of repairs, a shop shall provide the customer with a copy of a dated invoice for the repairs performed.  If the customer receives a repaired motor vehicle or appliance without face to face contact with the shop, the shop shall mail the invoice to the customer within two business days after the shop has knowledge of removal of the item.  The invoice shall contain the following information:  . . . 

 

            (e) A notation specifying which parts, if any, are new, used, rebuilt, reconditioned, or replated if that information is known by the shop.  If parts, other than window glass, used in the repair are new parts, the invoice must indicate whether or not those parts are original equipment parts[.]

 

            The district court concluded that it must rely on the invoice that Arason provided Toth and found that Arason did not provide an invoice that showed that an aftermarket radiator had been substituted for an OEM radiator.  Arason argues that the failure to provide an invoice should be excused because he orally informed Toth about the non-OEM radiator, and Toth agreed to accept it.  But Minn. Stat. § 325 F. 60, subd. 1(e), explicitly requires a dated invoice that contains a notation indicating whether or not the new parts used to repair Toth's truck were original equipment parts, and there is no exception for information provided in another manner.  The district court did not err in concluding that it must rely on the invoice.

II.

            Toth argues that the district court erred in concluding that under Minn. Stat. § 325 F. 64, subd. 1 (2002), Arason is not liable for consequential damages, attorney fees, and punitive damages.  To understand Toth's argument, we must consider the interplay among five statutes.  We have already considered the first of these statutes, Minn. Stat. § 325 F. 60, subd. 1, and concluded that Arason violated this statute by failing to provide Toth with an invoice that included the statutorily required information.

            The second statute, Minn. Stat. § 325 F. 63, subd. 3 (2002), provides remedies for a violation of Minn. Stat. § 325 F. 60, subd. 1.  This statute states, "Any violation of sections 325 F. 56 to 325 F. 66 shall be deemed a violation of section 325 F. 69, subdivision 1, and the provisions of section 8.31, shall apply."  Minn. Stat. § 325 F. 63, subd. 3. 

            The third statute, Minn. Stat. § 325 F. 69, subd. 1, states:

The act, use, or employment by any person of any fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with the intent that others rely thereon in connection with the sale of any merchandise, whether or not any person has in fact been misled, deceived, or damaged thereby, is enjoinable as provided herein.

 

            The fourth statute, Minn. Stat. § 8.31, subd. 3a (2002), is the private remedies section of the Attorney General statute, which states:

            In addition to the remedies otherwise provided by law, any person injured by a violation of any of the laws referred to in subdivision 1[1] may bring a civil action and recover damages, together with costs and disbursements, including costs of investigation and reasonable attorney's fees, and receive other equitable relief as determined by the court.  The court may, as appropriate, enter a consent judgment or decree without the finding of illegality.

 

            The fifth statute, Minn. Stat. § 325 F. 64, subd. 1, states, "Sections 325 F. 57 to 325 F. 59 and 325 F. 61 to 325 F. 66 shall not apply if an insurer or service contract company pays up to 90 percent of the charge for repairs or pays a charge for repairs above a deductible amount specified in an insurance agreement or service contract."

            Toth's analysis of these statutes begins with Arason's failure to provide an invoice as required under Minn. Stat. § 325 F. 60, subd. 1.  Toth contends that under Minn. Stat. § 325 F. 63, subd. 3, Arason's violation of Minn. Stat. § 325 F. 60, subd. 1, is deemed a violation of Minn. Stat. § 325.69, subd. 1, and the provisions of Minn. Stat. § 8.31 apply to the violation.  Therefore, Toth concludes, the private remedies provided by Minn. Stat. § 8.31, subd. 3a, apply to Arason's violation of section 325 F. 60, subd. 1, and those remedies include damages, costs and disbursements, costs of investigation, reasonable attorney fees, and other equitable relief.

            The district court concluded that these remedies were not available to Toth because Minn. Stat. § 325 F. 64, subd. 1, specifically exempts the transactions between Toth and Arason from these remedies.  Toth argues that the exemption in Minn. Stat. § 325 F. 64, subd. 1, explicitly applies to "[s]ections 325 F. 57 to 325 F. 59 and 325 F. 61 to 325 F. 66," and, therefore, the exemption does not apply to Arason's violation of Minn. Stat. § 325 F. 60, subd. 1.

            Toth is correct that the exemption under Minn. Stat. § 325 F. 64, subd. 1, does not apply to Minn. Stat. § 325.60, subd. 1.  But this does not mean that the private remedies available under section 8.31, subd. 3a, apply to the transactions between Toth and Arason.  Under Toth's own statutory analysis, Minn. Stat. § 325.60, subd. 1, does not provide that the remedies available under section 8.31, subd. 3a, apply to a violation of Minn. Stat. § 325.60, subd. 1.  Instead, it is Minn. Stat. § 325 F. 63, subd. 3, that states that section 8.31 applies to a violation of section 325 F. 60.  Therefore, if Minn. Stat. § 325 F. 63, subd. 3, does not apply to the transactions between Toth and Arason, the remedies available under section 8.31, subd. 3a, do not apply to the transactions. 

Under the plain language of Minn. Stat. § 325 F. 64, subd. 1, section 325 F. 63 "shall not apply if an insurer . . . pays a charge for repairs above a deductible amount specified in an insurance agreement."  After Arason repaired Toth's truck, Toth's insurer paid the charge for repairs above the deductible amount specified in Toth's insurance agreement, and Toth paid the deductible amount.  Therefore, under the exemption in section 325 F. 64, subd. 1, section 325 F. 63 does not apply to Arason's violation of section 325 F. 60, subd. 1, and, as a result, the violation is not deemed a violation of Minn. Stat. § 325 F. 69, subd. 1, and the remedies available under section 8.31, subd. 3a, do not apply to Arason's violation.

Toth argues that even if the exemption under section 325 F. 64 can apply to some violations of section 325 F. 60, it does not apply to Arason's violation because it is undisputed that although Toth's insurer paid for the repairs that Arason made to Toth's truck, the insurer paid none of the charge for repairs made as a result of the malfunctioning radiator installed by Arason.  But Toth's claim against Arason for violating section 325 F. 60, subd. 1, is based on the repairs that Arason made to Toth's truck; it is not based on the repairs made to replace the malfunctioning radiator.  There is no reason to consider who paid for repairs that are not the basis for Toth's claim.

            Toth argues that even if Arason's violation of Minn. Stat. § 325 F. 60 is not deemed a violation of Minn. Stat. § 325 F. 69, Arason's failure to disclose that installing a non-OEM radiator would void the manufacturer's warranty and instead representing that it would have the same guaranty violated Minn. Stat. § 325 F. 69, subd. 1.  But we find nothing in the record that indicates that Toth claimed in the district court that even if Arason did not violate Minn. Stat. § 325 F. 60, Arason's statements and omissions violated Minn. Stat. § 325 F. 69, subd. 1.  Toth's claim in the district court was that Arason installed non-OEM parts without providing an invoice that stated that non-OEM parts were used.  The district court did not address a claim that even if there was no violation of Minn. Stat. § 325 F. 60, Arason violated Minn. Stat. § 325 F. 69, subd. 1, and we will not address this claim for the first time on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (party may not obtain review by raising same general issue litigated below but under a different theory). 

            We also note that even if Toth asserted a claim that Arason violated Minn. Stat. § 325 F. 69, subd. 1, regardless of whether he violated Minn. Stat. § 325 F. 60, Toth did not assert, or present any evidence, that his cause of action against Arason benefits the public.  Minn. Stat. § 325 F. 69, subd. 1, does not create a private cause of action for violations of the statute.  Instead, the Private Attorney General Statute, Minn. Stat. § 8.31, subd. 3a, provides that "any person injured by a violation of [sections 325 F. 68 to 325 F. 70] may bring a civil action and recover damages, together with costs and disbursements, including costs of investigation and reasonable attorney's fees, and receive other equitable relief as determined by the court."  Consequently, Toth's right to bring an action for a violation of section 325 F. 69, subd. 1, arises under the Private Attorney General Statute.  But the supreme court has held "that the Private AG Statute applies only to those claimants who demonstrate that their cause of action benefits the public."  Ly v. Nystrom, 615 N.W.2d 302, 314 (Minn. 2000).  Toth argues on appeal that his action benefits the public, but we find nothing in the record that he demonstrated in the district court that his action benefits the public.  Therefore, the Private Attorney General Statute does not apply to Toth's claim.[2]

III.

Toth argues that the district court erred in awarding him $803.44 in damages because the record includes an April 2002, invoice that shows that the cost of replacing the radiator was $810.44, and the award does not include any amount for the cost of testing the radiator and adding coolant before the radiator was replaced.  The district court did not explain its reason for denying these damages, but the district court's findings indicate that the damages award was based on a March 16, 2000, estimate of repair, including radiator and coolant, for a total sum of $688.20.  It appears that the district court may have concluded that the damages award should not include the increase in the cost of replacing the radiator caused by delaying the replacement for two years, but this change in the cost of replacement does not explain how the district court arrived at the $803.44 amount awarded.[3]  Because we cannot discern the basis for the district court's damages award, we reverse the award and remand for reconsideration by the district court.

Toth also argues that the district court erred in failing to award him damages of at least $503.87 for the cost of replacing the A/C condenser.  This is the amount of a March 2000 Sheridan Motors estimate to replace the condenser.  But Toth has not cited any authority that indicates that the cost of replacing a condenser that has not been replaced is the applicable measure of damages.  See Ganguli v. Univ. of Minnesota, 512 N.W.2d 918, 919 n.1 (Minn. App. 1994) (stating court need not address allegations unsupported by legal argument).

IV.

            Toth objects to findings in both the district court's initial order and in the amended order.  It is not clear whether the district court intended the amended order to completely replace the initial order or whether parts of the initial order remain in effect.

Toth objects to the finding in the initial order that "in August of 1997, [Arason] provided a written estimate to [Toth] for repairs to his new pickup that was damaged in an accident."  That finding appears to be erroneous.  Both Toth and Arason testified that Arason did not provide Toth with a written estimate.

            Toth next argues that the finding in the initial order that "[t]here was no defect identified in the sold radiator" is clearly erroneous because the radiator began leaking less than six months after its installation.  But the leak in the radiator was not discovered until 2000, and Toth cites no evidence identifying the leak as a product defect.

            Toth argues that the finding in the initial order that as a result of the void warranty, Toth "had to pay for a new radiator and air conditioning unit which was installed by the GM dealer nearly three years after [Arason's] work" is clearly erroneous because only the radiator was replaced.   But finding of fact 12 in the amended order clarifies that Toth submitted a repair estimate for the A/C condenser, but there was no testimony that repair or replacement were required.  It is apparent that the district court awarded damages only for replacing the radiator. 

            The remaining findings to which Toth objects are in the amended order.  Toth argues that the findings that Toth "rear ended another vehicle" and received "collision damage" coverage from Western is clearly erroneous.  Even if those findings are erroneous, they are not relevant to the issues on appeal.

            Toth next objects to the finding that "[Toth] admitted he had little contact with the insurance company and left the negotiation and dealings up to . . . Arason's Body Shop, and his insurance company."  The record does contain evidence that Toth left the negotiations and dealing up to Arason's and Western.  Whether Toth made that admission is not relevant to the issues on appeal.

            Toth argues that the following finding is in essence a finding that Arason orally told Toth that the radiator he was going to install was a non-OEM radiator and Toth concurred:

            Arason's Body Shop began repair to the pick-up as soon as he was authorized by the insurance company to do the job.  A General Motors radiator was unavailable without a six-week delay.  On August 25, 1997 [Arason] explained to [Toth] he could not obtain a GM Radiator for 6 weeks and also explained that other radiators of the same or better quality were available and could be obtained right away.  . . . [Toth] advised [Arason] to obtain a replacement radiator which was accomplished through Northern Factory Sales.

 

Arason's testimony supports this finding.  Toth's argument that the finding is clearly erroneous goes to the credibility of Arason's testimony.  "[T]he assessment of witness[ ] credibility is the unique function of the trier of fact."  Tolzmann v. McCombs-Knutson Assocs., 447 N.W.2d 196, 198 (Minn. 1989).

            Toth argues that the finding that "[t]he invoice (Exhibit 6) refers to the radiator as a GM replacement radiator and the condenser as a Delco # (see Exhibit) which was the exact condenser specified by General Motors, but not sold through a General Motors dealer" is clearly erroneous.  The invoice describes the radiator as a "GM Complete Radiator."  Regarding the condenser, the record shows that the condenser was manufactured by Delco, the GM subsidiary that provides OEM condensers for GM vehicles, and Dahl's report states that the part numbers on the condenser installed in Toth's vehicle appeared to be the appropriate part numbers for Toth's truck.  The finding that the condenser was the condenser specified by General Motors is not clearly erroneous.

            Toth objects that the finding regarding the delay between the discovery of the cause of the leak in the radiator and having it repaired ignores that the reason for the delay was the voided warranty and Toth's inability to pay for the repair.  The fact that  there was a reason for the delay does not make the finding clearly erroneous.

            Toth argues that the finding that the record contains no evidence that the condenser was faulty is factually incorrect because Toth's testimony indicates that the condenser is faulty.  But Toth testified only that the condenser did not "seem to be as cooling."  He admitted that he had not had the condenser checked.

            To the extent that these findings are erroneous, none is relevant to the outcome of the issues on appeal.  This court declines to remand for de minimis technical errors.  Wibbens v. Wibbens, 379 N.W.2d 225, 227 (Minn. App. 1985).  "[E]rror without prejudice is not ground[s] for reversal."  Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (Minn. 1975).

            Toth objects to additional findings but concedes that the findings are irrelevant to the legal issues on appeal.

V.

            Citing Bliss v. Bliss, 493 N.W.2d 583, 590 (Minn. App. 1992), review denied (Minn. Feb. 12, 1993), and federal caselaw in accord with Bliss, Toth argues in his reply brief that the district court failed to perform its judicial function by signing proposed orders submitted by Arason instead of making its own independent findings.  This court has repeatedly refused to address issues first raised in a reply brief.  See, e.g., Huston v. Comm'r of Employment and Econ. Dev., 672 N.W.2d 606, 612 (Minn. App. 2003) (striking section of reply brief that asserted claim for the first time), review granted (Minn. Feb. 25, 2004); and appeal dismissed (Minn. May 25, 2004); State v. Bergerson, 671 N.W.2d 197, 204-05 n.6 (Minn. App. 2003) (striking section of reply brief that raised argument not raised to trial court); In re Silicone Implant Ins. Coverage Litig., 652 N.W.2d 46, 63 (Minn. App. 2002) (declining to consider argument made for the first time in a reply brief), rev'd on other grounds, 667 N.W.2d 405 (Minn. 2003).

VI.

 

            Toth argues that the district court erred in declining to award him damages to repair the peeling clear coat.  The district court found that Toth had problems with his paint job and that Toth's truck later received extensive hail damage for which Toth was compensated by his insurance company.  Based on these findings, the district court determined that the issue of damages for a defective paint job was moot because "[Toth] received compensation for hail damage and any further award, even if warranted, would give [Toth] a duplicate award."  But the district court did not find that the hail damage caused the peeling or that the compensation for the hail damage included the cost of repairing the peeling clear coat.  Therefore, the district court's findings do not support its conclusion that Toth has been compensated for the peeling, and we reverse and remand Toth's breach-of-contract claim.

VII.

            The prevailing party in a district court action shall be allowed costs and reasonable disbursements.  Minn. Stat. §§ 549.02, .04 (2002).  The district court is required to order costs for a prevailing party and has discretion to determine which party, if any, qualifies as a prevailing party.  Benigni v. County of St. Louis, 585 N.W.2d 51, 54-55 (Minn. 1998).

            The district court did not award Arason costs and disbursements as the prevailing party.  The court awarded costs and disbursements under Minn. R. Civ. P. 68, which states:

At any time prior to 10 days before the trial begins, any party may serve upon an adverse party an offer to allow judgment to be entered to the effect specified in the offer or to pay or accept a specified sum of money, with costs and disbursements then accrued, either as to the claim of the offering party against the adverse party or as to the claim of the adverse party against the offering party.  Acceptance of the offer shall be made by service of written notice of acceptance within 10 days after service of the offer.  If the offer is not accepted within the 10-day period, it is deemed withdrawn.  During the 10-day period the offer is irrevocable.  If the offer is accepted, either party may file the offer and the notice of acceptance, together with the proof of service thereof, and thereupon the court administrator shall enter judgment.  An offer not accepted is not admissible, except in a proceeding to determine costs and disbursements.  If the judgment finally entered is not more favorable to the offeree than the offer, the offeree must pay the offeror's costs and disbursements.  The fact that an offer is made but not accepted does not preclude a subsequent offer.

 

Arason does not cite to and we have not found a settlement offer in the district court record.  Therefore, we find no basis for costs and disbursements to be awarded under Minn. R. Civ. P. 68, and we reverse the award.

Affirmed in part and reversed and remanded in part.

*   Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] Minn Stat. § 8.31, subd. 1 (2002), refers to Minn. Stat. § 325 F. 69 but does not refer to Minn. Stat. § 325 F. 60.

[2] The district court determined that Arason was liable for damages because Arason violated Minn. Stat. § 325 F. 60.  The district court did not determine whether the Private Attorney General Statute applies to Toth's claim for the cost of replacing the radiator, but Toth did not seek review of the liability determination.  See Minn. R. Civ. App. P. 106 ("A respondent may obtain review of a judgment or order entered in the same action which may adversely affect respondent by filing a notice of review with the clerk of the appellate court.")  Consequently, the district court's liability determination is not before us.

[3] Arason acknowledges in his brief that if there has been a violation of Minn. Stat. § 325 F. 60, he may be responsible to pay the actual damages incurred.  But he does not explain why $803.44 is the actual damages incurred.