Eugene R. Lundak, Appellant, vs. Officer Tom Nyseth, et al., Respondent.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480 A. 08, subd. 3 (1998).

Brent Russell,
Appellant,

vs.

Pat Fleming,
Respondent.

Hennepin County District Court
File No. AC9618379

Brent Russell, 3037 33rd Avenue South, Minneapolis, MN 55406 (appellant pro se)

Kay Nord Hunt, Laura L. Enga, Christopher R. Grote, Lommen, Nelson, Cole & Stagberg, P.A., 1800 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)

Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Davies, Judge.

Appellant Brent Russell is the owner of a taxicab that was involved in an accident with a vehicle being driven by respondent Pat Fleming. In this appeal from a judgment and an order denying his motion for a new trial, Russell argues that the district court erred by (1) concluding that he waived the issue of whether the taxi driver's negligence could be imputed to him and (2) allowing him loss-of-use damages for only 25 days when repairs to the taxi were not completed until 54 days after the accident. We affirm; we also grant Fleming's motion to strike and deny Russell's motion to supplement the record.

On July 13, 1995, a taxicab owned by Russell was involved in an accident with a vehicle being driven by Fleming. Daniel Percy, who contracted to drive Russell's taxi, was driving the taxi when the accident occurred. Russell brought a conciliation court action against Fleming, seeking damages for repair costs and loss of use. Fleming's insurer, West Bend Mutual Insurance Company, as Fleming's subrogee, filed a separate conciliation court action against Russell for damages for the cost of repairing Fleming's vehicle.

The conciliation court did not consolidate the actions and issued separate judgments. In both cases, the conciliation court found Fleming 65% at fault for the accident, Percy 35% at fault, and attributed Percy's negligence to Russell. In Russell's action, the conciliation court issued a judgment in his favor for $4,302.56. In the action by Fleming's insurer, the conciliation court issued a judgment denying Fleming any recovery.

Russell filed a demand for removal of his case to the district court. Neither Fleming nor his insurer removed the second action. The district court denied Fleming's motion to dismiss Russell's district court claim and granted Russell leave to file an amended complaint. Russell filed an amended complaint seeking damages of $14,190.12 for loss of use and $3,076.24 for repairs. The amended complaint does not allege that Percy's negligence should not be imputed to Russell or that a bailment relationship existed between Russell and Percy. Fleming asserted a counterclaim against Russell seeking to recover $2,468.52 for damages to his vehicle.

At a pretrial settlement conference, Russell argued that Fleming's counterclaim should be dismissed under the doctrine of res judicata, and Fleming argued that the entire matter should be tried de novo. In a memorandum submitted following the settlement conference, Russell argued that res judicata barred Fleming's counterclaim but that the liability determination in the conciliation court actions should not have collateral estoppel effect on Russell's district court action and that he should be allowed a trial de novo on the issue of liability. Russell, however, did not specify what aspect of liability he wanted to litigate, and he did not raise the issue of whether Percy's negligence could be imputed to him or whether a bailment relationship existed between him and Percy.

The district court concluded that Fleming's counterclaim was barred by res judicata and that collateral estoppel precluded relitigation of comparative fault. The court limited trial to the issue of damages.

Richard Rikhus, a claims representative for West Bend, testified that it was not necessary for a West Bend adjuster to inspect Russell's taxi personally before it could be repaired because West Bend will accept an estimate as proof of damages. Rikhus denied ever telling Russell that the taxi could not be repaired until West Bend completed its investigation. Rikhus testified that, as a standard practice, if down time and a speedy repair were primary concerns, he would tell a person to go ahead and get the vehicle repaired while the investigation was ongoing and that liability and responsibility for payment would be determined later.

Alden Svien, an auto-body mechanic for Frank Forenborth Auto Body, the repair shop that worked on Russell's taxi, testified that during the summer, a person normally would have to wait a week or two weeks at the most to get a vehicle into a shop for frame and alignment repairs. Svien testified that it usually takes three to four weeks to complete frame and alignment repairs to a vehicle. His time estimate accounted for prep work, framework, bodywork, sanding, and painting. Svien testified that there was a problem obtaining a part for Russell's taxi but did not state whether it increased the time necessary to repair Russell's taxi. Also, Scott Servin, an independent automobile-insurance appraiser, testified that even with problems, two weeks was a reasonable time for a shop to perform the repairs to Russell's taxi.

The district court found:

[Russell] took Cab No. 22 to Frank Forenborth Auto Body to be repaired on August 4, 1995. [Russell] testified that he did not bring the taxicab to be fixed until August 4, 1995 because of communication problems with [Fleming's] insurance company. The taxicab was completely repaired on September 5, 1995. The repair was delayed as Frank Forenborth Auto Body did not have the proper alignment racks to do the job. The alignment of the taxicab was done at Best Frame. Since Best Frame did not have the ability to properly calibrate and do the front end alignment, the taxicab had to be brought to Tires Plus on three occasions for computer alignment, after which Best Frame would do readjustments. The repair process was further delayed by a two and one half week wait for new car parts.

* * * *

[Russell] did not exercise due diligence to have his taxicab fixed in a reasonable period of time. He could have mitigated his damages by immediately taking his taxicab to a repair shop with an alignment rack and computer calibration system. As such, he can only recover damages for loss of use for a reasonable period of time. Taking into account the communication problems with [Fleming] and the amount of repair time, the court finds that 25 days is a reasonable repair time. [Russell] is therefore entitled to recover for loss of use for 25 days.

The district court found that Russell incurred damages of $7,819.50 for loss of use and $3,076.24 in repair costs. The district court attributed Percy's negligence to Russell and awarded Russell $7,082.24 in damages, 65% of his total damages.

Russell filed a motion for amended findings or a new trial. He argued that the contract between him and Percy created a bailment; the negligence of a bailee of an automobile is not imputable to the bailor; and, therefore, the district court erred in imputing Percy's negligence to Russell. The district court denied Russell's motion because the "first time the imputation of the driver to the owner of the vehicle liability was raised was in [Russell's] post-trial motions."

1. Generally, the denial of a motion for a new trial will not be reversed unless the trial court clearly abused its discretion. Connolly v. Nicollet Hotel, 258 Minn. 405, 407, 104 N.W.2d 721, 724 (1960). When a party's posttrial motion is based on a theory of recovery not previously raised, the district court does not abuse its discretion by denying the motion. See Minnesota Mut. Fire and Cas. Co. v. Retrum, 456 N.W.2d 719, 723 (Minn. App. 1990) (when party raised new theory of recovery in new trial motion, district court did not abuse its discretion by denying motion).

The judgment in Russell's conciliation court action attributed Percy's negligence to Russell. Russell made no objection on the record to the imputation of negligence until he filed his new trial motion. Although Russell's amended complaint requested recovery of all of his damages, the amended complaint did not refer to a bailment and did not suggest any theory of recovery other than Fleming's negligence. In opposing Fleming's motion to dismiss, Russell argued that the liability determination in the conciliation court action should not have collateral estoppel effect in the district court action but did not object to the conciliation court's attribution of Percy's negligence to him or raise the bailment theory. The proposed findings submitted by Russell contain no reference to a bailment, and Russell did not raise the bailment theory during trial. He did submit a copy of the contract between him and Percy into evidence at trial, and the contract contains a paragraph stating that it creates a bailment and that the bailee's negligence is not imputable to the bailor. The contract, however, was admitted into evidence in the context of proving the amount of Russell's loss-of-use damages, and Russell did not make any specific reference to the bailment paragraph. Under these circumstances, the district court did not abuse its discretion by denying Russell's new trial motion. See Antonson v. Ekvall, 289 Minn. 536, 539, 186 N.W.2d 187, 189 (1971) (upholding district court's denial of new trial motion based on legal theory that had not been raised at an earlier stage of the action; although pleadings were general enough to have possibly made a claim based on ejectment theory, complaint contained no language that would alert anyone to a claim based on ejectment theory, and plaintiff did not present ejectment theory to court during trial).

2. An owner of a commercial vehicle may recover damages for loss of use of the vehicle during the time reasonably necessary to repair the vehicle. Kopischke v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 230 Minn. 23, 31-32, 40 N.W.2d 834, 839 (1950); Williams v. Boswell, 444 N.W.2d 887, 888 (Minn. App. 1989), review denied (Minn. Oct. 31, 1989).

Although Russell's taxi was not repaired until 54 days after the accident, the district court awarded him loss-of-use damages for only 25 days. Russell did not bring his taxi into the repair shop until August 4, 1995, three weeks after the accident. Russell argues that the delay was due to West Bend's delay in completing the investigation of Russell's claim and the fact that West Bend told him not to get his taxi repaired until West Bend completed its investigation.

Rikhus, however, testified that it was not necessary for Russell to wait for West Bend to complete its investigation before having his taxi repaired because West Bend will accept an estimate as proof of damages. Rikhus's testimony indicates that West Bend told Russell that West Bend would not make a decision on payment until its investigation was completed, not that Russell should wait until the investigation was completed before having his taxi repaired. Svien testified that three to four weeks is the normal time necessary to complete the types of repairs made to Russell's taxi. Svien's testimony did not indicate that the problem in obtaining a part for Russell's taxi extended the time necessary to complete repairs to the taxi beyond the normal range. Also, Servin testified that even with problems, two weeks was a reasonable time for a shop to perform the repairs to Russell's taxi. The record supports the district court's decision to limit loss-of-use damages to 25 days.

3. The papers filed in the district court, the exhibits, and the transcript of the proceeding, if any, shall constitute the record on appeal in all cases. Minn. R. Civ. App. P. 110.01. Fleming filed a motion to strike the following documents, included in the appendix to Russell's brief, and any references to them: Valerie Jones's deposition; an accident report envelope; and a calculation of Russell's business interruption damages.

Russell filed a motion to supplement the record with Jones's deposition, arguing that he was acting pro se and did not understand that he was required to file a copy of the deposition in the district court but rather thought that providing opposing counsel with a copy was sufficient. "Pro se litigants are generally held to the same standards as attorneys." Heinsch v. Lot 27, Block 1 For's Beach, 399 N.W.2d 107, 109 (Minn. App. 1987). Russell did not provide citations to the record for the other two documents, and we did not discover them in our review of the record. We grant Fleming's motion to strike and deny Russell's motion to supplement the record.

 Affirmed; motions granted in part and denied in part.