Fidelity Bank, Edina Minnesota, et al., Respondents, vs. Dunbar Armored, Inc., a Maryland corporation, Appellant, St. Paul Mercury Insurance Co., Defendant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-997

 

Fidelity Bank, Edina Minnesota, et al.,

Respondents,

 

vs.

 

Dunbar Armored, Inc.,

a Maryland corporation,

Appellant,

 

St. Paul Mercury Insurance Co.,

Defendant.

 

Filed ­December 14, 2004

Affirmed

Harten, Judge

 

Hennepin County District Court

File No. CT-02-010248

 

William R. Skolnick, Sean A. Shiff, Skolnick & Associates, 2100 Rand Tower, 527 Marquette Avenue South, Minneapolis, MN 55402 (for respondents)

 

Robert G. Haugen, David E. Camarotto, Johnson & Lindberg, P.A., 7900 International Drive, Suite 960, Minneapolis, MN 55425-1592 (for appellant)

 

            Considered and decided by Harten, Presiding Judge; Klaphake, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

             Respondents, an ATM operator and a bank, brought this action against appellant, an armored car company that transported cash between them, when they discovered a loss.  Appellant counterclaimed for the final payment due under the parties' contract.  A jury awarded respondents their claimed loss, less appellant's final payment.  Appellant now challenges the denials of its pre-trial motion for summary judgment and its posttrial motion for judgment notwithstanding a verdict (JNOV) or a new trial.  Because we see no error of law and no abuse of discretion in the denials of the motions, we affirm.

FACTS

 

Appellant Dunbar Armored, Inc., (Dunbar) is engaged in the business of transporting currency and servicing automated teller machines (ATMs).  Respondent Cash Systems, Inc. (CSI) is engaged in the business of providing ATMs.  Respondent Fidelity Bank (Fidelity) is a national banking association.[1]  In February 1999, the parties entered into a one year "Tri-Party Armored Carrier Service Agreement" (the agreement) providing that Dunbar would service CSI's ATMs using cash from Fidelity.  The agreement was renewed for another year in February 2000.  After it expired in February 2001, Dunbar returned the cash.   Fidelity discovered a shortage of $412,185.95. 

CSI and Fidelity brought this action against Dunbar asserting claims of negligence, breach of fiduciary duty, breach of contract, misrepresentation, and conversion, and they moved for summary judgment on those claims.  Dunbar alleged defenses of waiver by conduct and untimely notice of claims, and moved for summary judgment dismissing all claims against it; Dunbar also counterclaimed for the final payment owed under the agreement.  The district court granted Dunbar's summary judgment on the claims of negligence and breach of fiduciary duty and dismissed those claims with prejudice.  The district court found that fact questions precluded summary judgment on CSI's and Fidelity's claims of breach of contract, misrepresentation, and conversion, and on Dunbar's defenses of waiver by conduct and waiver by untimely notice.

Following trial, the jury found Dunbar liable on grounds of negligence, breach of fiduciary duty, breach of contract, and misrepresentation, and it awarded CSI and Fidelity $412,185.95, less Dunbar's final invoice of $32,602.49.  Dunbar moved for JNOV or a new trial.  That motion was denied, and Dunbar appeals both that denial and the denial of its motion for summary judgment.[2]

D E C I S I O N

1.         Denial of Motion for Summary Judgment

Dunbar first challenges the denial of its motion for summary judgment.  The denial of a motion for summary judgment may be raised on appeal from the final judgment.  Reinhardt v. Milwaukee Mut. Ins. Co., 524 N.W.2d 531, 533 (Minn. App. 1994), review denied (Minn. 14 Feb. 1995).  On appeal from denial of summary judgment, this court must determine whether any genuine issues of material fact exist and
whether the district court erred in applying the law.  Zank v. Larson, 552 N.W.2d 719, 721 (Minn. 1996).  Dunbar contends that the district court erred in denying summary judgment because CSI and Fidelity waived their right to bring this action through their continued dealing with Dunbar, through acquiescence in Dunbar's statements of account, and because CSI and Fidelity failed to make a prima facie claim of loss.

            a.         Waiver Through Continued Course of Dealing

 

            Dunbar does not contest the finding that it breached the agreement, but argues that CSI's and Fidelity's decision to extend the agreement for a second year operates as a de facto waiver of their right to sue for Dunbar's breach.[3]  Dunbar relies on Creative Communications Consultants, Inc. v. Gaylord, 403 N.W.2d 654, 657 (Minn. App. 1987) for the proposition that "[a] party's continued recognition of a contract as binding after the other party's alleged breach acts as a waiver of that breach."  That reliance is misplaced.  Creative Communications is distinguishable: it concerned a former employee who signed an employment agreement containing a non-compete provision, resigned and "executed a[nother] document acknowledging the validity of the non-compete covenant and agreeing to be bound by it," then accepted employment in breach of the non-compete and was sued for breach by the former employer.  Id. at 656.  This court rejected the employee's argument that he was excused from the non-compete covenant because the former employer had allegedly breached other provisions of the employment contract.  Thus, Creative Communications refutes, rather than supports, Dunbar's argument.

            Moreover, the agreement explicitly provided that

[a]ny practice or custom of [Fidelity, Dunbar, or CSI] at variance with the provisions of this Agreement shall not constitute a waiver of such provisions unless such practice or custom shall be agreed upon in writing and such writing shall be made an amendment to this Agreement.

 

Neither Fidelity nor CSI ever agreed in writing that their practice of extending the agreement for a second year was a waiver of the right to bring an action for breach of the agreement.

            b.         Waiver by Acquiescence to Dunbar's "Statements of Account"

 

            In September 2000 Dunbar sent a statement to Fidelity, which signed it and sent it to Dunbar's auditors, saying that, as of 23 August 2000, Dunbar held $317,360 for Fidelity.  Dunbar relies on this statement to argue that Fidelity acquiesced in Dunbar's accounts and thereby waived the right to challenge them.  But this statement refers only to the amount Dunbar was holding in a vault, not to the amount in the ATMs or in transit in Dunbar vehicles.

            Dunbar relies on Kittler & Hedelson v. Sheehan Properties, 295 Minn. 232, 238, 203 N.W.2d 835, 839 (1973), which holds that retaining a statement of account without objecting to it "may under certain circumstances operate as proof of an acquiescence in or an admission of the correctness of the statement of account. . . ." (Quotation omitted.)  But Kittler is readily distinguishable.  It concerned an attorney-client dispute over fees: the client had retained the attorney's fee statements without objecting to them before bringing the lawsuit.  Here, the dispute does not concern fees owed to Dunbar; it concerns approximately $412,000 in cash that disappeared during the parties' relationship.  Kittler does not provide a basis for granting Dunbar summary judgment.

            c.         Failure to State a Prima Facie Claim

            Dunbar also claims that it was entitled to summary judgment because CSI and Fidelity failed to make a prima facie claim of loss by showing where and when the loss occurred.  This claim ignores the provision in the agreement that Dunbar would be liable "[f]or any loss or theft of [CSI] funds while those funds are in the exclusive possession of DUNBAR" and "at all times for the safety of any property received into [Dunbar's] possession at any time . . . ."  CSI and Fidelity did not have to show where and when the loss occurred to make a prima facie claim under the agreement.  

            Dunbar relies on another provision in the agreement, "that . . . the unexplained loss of currency shall not create any presumption that DUNBAR is liable for such loss in the absence of proof DUNBAR was responsible for such loss."  But CSI and Fidelity did more than assert an "unexplained loss of currency"; they provided evidence that independently created a presumption of Dunbar's liability.  At the summary judgment stage, no more is required: "issues of causation also involve questions of fact and seldom can be disposed of on a motion for summary judgment."  Bondy v. Allen, 635 N.W.2d 244, 248 (Minn. App. 2001) (quotation omitted).

            The district court did not err in denying Dunbar's motion for summary judgment.

2.         Denial of Motion for New Trial

            "On appeal from a denial of a motion for a new trial, the verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict."  ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992), review denied (Minn. 29 Apr. 1992).  Because the district court has the discretion to grant a new trial, we will not disturb its decision absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  Dunbar argues that it is entitled to a new trial on two grounds: omission of items from the special verdict form and jury mistake.         

            a.         Special Verdict Form Omissions

Dunbar contendsthat the district court erred in not submitting to the jury questions on CSI's and Fidelity's comparative fault, breach of fiduciary duty, and breach of contract. [4] 

i.          Comparative Fault

Two of the claims against Dunbar, breach of contract and fraudulent misrepresentation, do not involve a comparative fault analysis.  Submitting questions irrelevant to those claims would arguably have confused the jury.  See Bilotta v. Kelley Co., 346 N.W.2d 616, 626 (Minn. 1984) (Simonett, J., concurring specially) (recommending special verdict language that "is understandable to the jurors, and avoids confusion with any other . . . questions that might be on the special verdict form").  Moreover, the jury found Dunbar liable on the two claims that do not involve comparative fault.  When a jury's finding on some claims would not have been affected by an erroneous instruction on other claims, the error does not provide the basis for a new trial.  See, e.g., Victor v. Sell, 301 Minn. 309, 315, 222 N.W.2d 337, 341 (1974) (affirming denial of motion for a new trial in part because "we cannot discern any way in which the error in instructing on negligence or assumption of risk could have affected the finding on trespass").  Analogously, the omission of questions on CSI's and Fidelity's negligence from the special verdict form, even if erroneous, does not provide a basis for a new trial.

            ii.        Breach of Fiduciary Duty

Dunbar argues that, because the special verdict form asked whether Dunbar breached its fiduciary duties to CSI and Fidelity, it should also have asked whether CSI and Fidelity breached fiduciary duties to Dunbar or to each other.  But Dunbar never brought a breach of fiduciary duty claim against CSI or Fidelity, and they brought no such claim against each other.  A factual issue may be submitted to a jury "[w]here there is evidence reasonably tending to prove [its] existence."  Zobel & Dahl Constr. v. Crotty, 356 N.W.2d 42, 45 (Minn. 1984).  Dunbar did not provide evidence reasonably tending to prove the existence of a factual issue as to CSI's and Fidelity's breach of fiduciary duties and is not entitled to a new trial on the ground that the issue was not raised to the jury. 

iii.       Breach of Contract

Dunbar argued to the jury, as it had argued on summary judgment, that CSI and Fidelity breached the agreement by failing to give Dunbar timely notice of the cash discrepancies.  The jury either did not believe this argument or found that any breach by CSI and Fidelity was not a cause of their monetary damage, since it found that the total damage claimed was "directly caused by [Dunbar]."  Therefore, even if not including a question about CSI's and Fidelity's alleged breach was error, it was harmless error.  See Cafferty v. Garcia's of Scottsdale, Inc., 375 N.W.2d 850, 855 (Minn. App. 1985) (ultimately any deficiencies in the special verdict questions are harmless error when the evidence is sufficient to support the verdict). 

The omission of questions from the special verdict form does not provide a basis for a new trial.

b.         Jury Mistake

            Dunbar argues that it is entitled to a new trial on the ground of jury mistake because the jury found its acts had caused a loss of $412,185.95 and Dunbar's transactions with CSI and Fidelity involved no cash smaller than $10 bills.  See Lamb v. Jordan, 333 N.W.2d 852, 855-56 (Minn. 1983) (when verdict is so contrary to the evidence as to imply that the jury acted under some mistake, new trial should be granted).  

            An assistant vice-president of Fidelity who had been involved with the Dunbar events explained why Dunbar's records showed a loss of $412,185.95. 

            [I]n the beginning of this program, I guess you could call it, [CSI] was filling these machines themselves.  And so what was happening is the Lynks [electronic] payments were going directly to their operating account, which is a checking account.  And because checking accounts get service charges on them, what happened in this particular situation is we were sweeping the money out of the checking account to pay down the funds that [CSI] was using to fill the machines.

 

                        Well, what happened was a service charge posted to this checking account, and service charges are typically in pennies, they're not in round dollars. . . . Well, we were sweeping the balance out of that account so, of course, we swept pennies instead of a round dollar amount and applied it to the dollars that [CSI] was originally using to fill the ATMs themselves.   

 

When asked, "[D]id [removing the balance from the accounts] have any kind of material impact on the loss?" she replied, "Maybe a couple hundred dollars at the most."

            The jury's verdict is consistent with, not contrary to, this evidence; it does not imply that the jury was mistaken when it awarded CSI and Fidelity the amount of the loss shown on the exhibits they produced at trial and explained by Fidelity's assistant vice-president.  There is no basis for a new trial on the ground of jury mistake.

3.         Denial of Motion for JNOV

            An appellate court will affirm the denial of JNOV

if, in the record, there is any competent evidence reasonably tending to sustain the verdict. . . . Unless the evidence is practically conclusive against the verdict, this court will not set the verdict aside. . . . The evidence must be considered in the light most favorable to the [verdict] . . . [which will not be set aside] if it can be sustained on any reasonable theory of the evidence.

 

Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998) (quotations omitted).  "The issue of causation is for the jury to decide, and its decision will stand unless manifestly contrary to the evidence viewed as a whole and in the light most favorable to the verdict."  Int'l Fin. Servs., Inc. v. Franz, 534 N.W.2d 261, 267 (Minn. 1995) (quotation omitted).

Dunbar argues that there was no evidence to show that Dunbar's conduct more likely than not caused the unexplained losses.  But the testimony of the Dunbar employee who set up the ATM operation in Minnesota provided ample circumstantial evidence.  He testified:

[O]bviously, the only way we wouldDunbar would handle the ATM project, we would have sole responsibility for the cash.  We wouldn't want anybody else handling the cash, namely, [CSI] employees.  Same way with Fidelity Bank . . . I assured them we would be the one solely handling the cash, solely responsible for the cash.

 

. . . .

 

Dunbar's responsibility was to secure the cash from Fidelity Bank, prepare the cash for loads into the cassettes based on the cash load directedor expressed to us by [CSI], which means the amount of cash to go into that ATM, count the cash into the ATM cassette, secure it, record the paperwork, assign it to a route to go out to the ATM, load the cassette into the ATM, do the balancing at the ATM, bring the expired cassette back . . . to the vault where it's signed in . . . .

 

. . . .

 

I said [to Dunbar's corporate headquarters] if we don't have these Mas-Hamilton locks [whose combination changes each time they are used] in here, we'll have a time bomb waiting to go off.  That's the only reason I even agreed to start with these ATMs was because we had the Mas-Hamilton lock.

 

. . . .

 

Most of the time I can say honestly [the combinations to ATM locks] were not changed [when employees left.]  There were a few exceptions where we did have time for somebody to go out . . . to change some of the combos.  But it was very rare.

 

. . . .

 

I was not seeing things being done the way [they] should be done. . . . When you [count] your high bills and your low bills, you have one employee [count] the high, and the other employee loads the high and verifies the count.  One employee counts the low and the other one loads the low and verifies the count and attaches a seal to the cassettes.  There [were] not enough people in there to do what should be done. . . .  [T]here just was not enough manpower. 

 

. . . .

 

[Y]ou're dealing with too much money for one person to do the physical counting, too much risk, too much temptation.  That's what dual custody, or dual control is for. 

 

. . . .

           

When I was out at customers, I would observe [Dunbar trucks] pulling up to a customer to load an ATM, and the driver would . . . be out [of the truck] . . . while the other employee [was] in the truck physically loading, by themselves, money out of the cash bag and putting it in the cassette.  And there was no dual control at that point. 

           

. . . .

 

[In the vault] I observed everything from drivers loading their own cassettes because there was no employee in the vault to do it.  I observed one person loading cassettes instead of two.  I observed seals not being used.  I observed about every possible thing that you could imagine. 

 

Dunbar argues that proof of negligence is not proof of causation.  But Dunbar concedes that evidence showing that any one cause of damage is more likely than others is sufficient to sustain a verdict.  See, e.g., Marshall v. Coop. Oil Co., 284 Minn. 549, 551, 169 N.W.2d 395, 397 (1969) ("All that is required to sustain a verdict for plaintiff is sufficient evidence to permit the jury to find that more likely than not a leak in the supply line which resulted from defendant's negligence was the source of the accumulation of gas and the cause of the explosion and ensuing fire."); Jennie-O Foods, Inc. v. Safe-Glo Prods. Corp., 582 N.W.2d 576, 580 (Minn. App. 1998) (affirming denial of JNOV because "jury here could reasonably have decided it was more likely than not that the heaters caused the second fire as they had caused the first, even absent testimony eliminating other causes of the second fire"), review denied (Minn. 20 Oct. 1998). 

Dunbar reiterates its argument that, because CSI and Fidelity cannot show times, dates, and places of specific losses, they cannot show causation.  But even without evidence of specific times, dates, and places, the jury could reasonably have found that Dunbar's negligence was the cause of the loss.  For a party's negligent acts to be the proximate cause of an injury, the party need not anticipate the particular injury that results from the negligent acts, but the party must be able to anticipate that the acts are likely to result in some injury, and the negligent acts must be a substantial factor in bringing about the injury.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).  Dunbar did not need to anticipate each individual loss, but it could have anticipated that its poor cash-handling practices and security lapses were likely to result in a loss of cash belonging to CSI and Fidelity.

The jury's verdict that Dunbar's negligence was a direct cause of CSI's and Fidelity's negligence is not "manifestly contrary to the evidence viewed as a whole and in the light most favorable to the verdict."  See Int'l Fin. Servs., 534 N.W.2d at 267 (quotation omitted).  Dunbar provides no basis for reversing the denial of its motion for JNOV.

Affirmed.

[1] St. Paul Mercury Insurance Co., the insurer of Fidelity, was originally named as a defendant.  However, its motion for summary judgment dismissing all claims against it was granted, and it takes no part in this appeal.

[2] In its reply brief, Dunbar requests that portions of CSI's and Fidelity's brief be stricken, but Dunbar did not file a motion to strike.  Therefore, we do not address the request.  See Minn. R. Civ. App. P. 127: "[A]n application for an order or other relief shall be made by serving and filing a written motion for the order or relief."

[3] Dunbar also claims that, "the trial court record is replete with evidence to support a finding, as a matter of law, that [CSI and Fidelity] waived Dunbar's breaches of contract."  Even assuming this to be true, it does not address why the district court should have granted summary judgment on the waiver issue; it rather supports the denial of summary judgment, since the trial was necessary to develop the record.

[4] Dunbar's proposed special verdict form did not include questions pertaining to CSI's and Fidelity's breach of fiduciary duties or of contract.  "[A] failure to object to a special verdict form prior to its submission to the jury constitutes a waiver of a party's right to object on appeal."  Kath v. Burlington N.R.R., 441 N.W.2d 569, 572  (Minn. App. 1989), review denied (Minn. 27 July 1989).  Therefore, these issues are not properly before us.  We nevertheless address them in the interest of completeness.  See Minn. R. Civ. App. P. 103.04 (court may review any matter "as the interest of justice may require").