This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Harvey Skip Berg,





Leland F. Gohlike,



Filed June 18, 2002


Willis, Judge


Washington County District Court

File No. C0931452


Kevin K. Shoeberg, 1805 Woodlane Drive, Woodbury, MN  55125 (for appellant)


Barry W. McKee, 200 South Third Street, Suite 200, Stillwater, MN  55082 (for respondent)


            Considered and decided by Shumaker, Presiding Judge, Willis, Judge, and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the district court’s posttrial order after remand, denying his motion for amended findings of fact or a new trial.  Because the district court did not abuse its discretion, we affirm. 


Appellant Harvey Skip Berg owned several vintage cars, including a 1930 Mercedes Benz SS Cabriolet C (Cabriolet C).  Respondent Leland Gohlike brokered vintage Mercedes automobiles and parts, and, over the years, the parties transacted business with each other on several occasions.  In January 1992, with Berg’s permission, the Cabriolet C’s unassembled engine was shipped from Berg’s shop in California to Gohlike’s Minnesota shop, where he planned to rebuild it for Berg. 

Gohlike failed to return the engine to Berg as agreed, and Berg sued him for, among other claims, replevin.  In June 1996, after a bench trial, the district court ordered Gohlike to immediately return to Berg all Cabriolet C engine parts in his possession or to pay money damages to Berg of $75,000.  Berg challenged the order, arguing that Gohlike no longer possessed some of the parts that he took from Berg’s California shop and that the district court had erroneously calculated the $75,000 as a percentage of the reserve price for auction of a Cabriolet C, rather than the fair market value of a Cabriolet C. 

On appeal, this court reversed and remanded, holding:

In a replevin action, if possession cannot be obtained of the whole of such property but may be obtained for part thereof then the party entitled thereto may have possession of the part which may be obtained and recover the value of the remainder or may elect to take judgment for the value of the whole of such property.


Berg v. Gohlike, No. C8-96-2092, 1997 WL 328024, at *2 (Minn. App. June 17, 1997) (quotation omitted).  This court ordered the district court to (1) enter an order for Gohlike to return all parts taken from Berg’s shop or pay damages, (2) determine the value of any parts taken from Berg’s shop that Gohlike no longer possesses, and (3) determine the fair market value of the Cabriolet C’s engine.   

            On remand, after a second trial, Berg failed to comply with the district court’s order to submit written, proposed findings on the damages issue.  The district court contacted Berg three times regarding its order, and after 90 days, issued an order on its own motion dismissing Berg’s claim in its entirety.  Berg moved to vacate the dismissal; the district court denied the motion, and Berg appealed.  On appeal for the second time, this court reversed and remanded, finding that a 90-day delay over the course of five years of litigation was neither unreasonable nor inexcusable and would not prejudice Gohlike.  See Berg v. Gohlike, No. C3-99-250, 1999 WL 561977 (Minn. App. Aug. 3, 1999).  

After the second remand, the district court did not conduct an evidentiary hearing or a new trial.  Instead, in March 2001, it issued findings of facts, conclusions of law, and an order for judgment based on the existing evidence.  Berg moved the district court for amended findings or, in the alternative, a new trial.  After a hearing on the motion, the district court, in August 2001, amended its order by awarding an engine part to Berg that was not included in the March 2001 order; the district court denied the balance of Berg’s motion.  This appeal follows.      


Berg challenges the district court’s order denying his motion for amended findings under Minn. R. Civ. P. 52.01 or, in the alternative, for a new trial under Minn. R. Civ. P. 59.01.  The district court has the discretion to grant a new trial, and we will not disturb the decision absent a clear abuse of that discretion.  Halla Nursery, Inc. v. Baumann-Furrie & Co., 454 N.W.2d 905, 910 (Minn. 1990).  “Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous.”  Minn. R. Civ. P. 52.01.  “Findings of fact are considered clearly erroneous only if they are not reasonably supported by the evidence.”  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 102 (Minn. 1999) (citing Minn. R. Civ. P. 52.01). 


            Minn. R. Civ. P. 59.01(a) provides that a new trial may be granted for an

[i]rregularity in the proceedings of the court, * * * or any order or abuse of discretion, whereby the moving party was deprived of a fair trial * * * .


Berg contends that rule 59.01 entitles him to a new trial because the district court found in its August 2001 order that the Cabriolet C engine was not complete when it was shipped from California to Minnesota.  The district court awarded Berg, at his option, the value of specific parts or the specific parts themselves, and those parts “do not equal the sum total needed to assemble a complete [Cabriolet C] engine.”  Berg argues that because the district court’s June 1996 order and memorandum states that the engine was complete when it left California, the 2001 order violates the law of the case and exceeds the scope of this court’s remand.  That finding is significant because Berg maintains here that he is entitled to the fair market value of a complete, unassembled engine less the fair market value of the parts that Gohlike returns to him. 

Minn. R. Civ. P. 52.01 provides that a court must specifically state findings of fact in all actions tried without a jury and that it is sufficient for the court to state those findings in a memorandum accompanying the order for judgment.  Here, although the 1996 order for judgment itself did not find whether the engine shipped to Minnesota was complete, in the memorandum accompanying its 1996 order, the district court noted:  “When the engine left California, it was complete.” 

            The doctrine of law of the case is a rule of practice followed between the Minnesota appellate courts and the [district] courts. It is a discretionary doctrine developed by the appellate courts to effectuate the finality of appellate decisions. It ordinarily applies where an appellate court has ruled on a legal issue and has remanded the case to the [district] court for further proceedings.


Loo v. Loo, 520 N.W.2d 740, 744 n.1 (Minn. 1994) (citations omitted).  The law-of-the-case doctrine ensures that a court’s ruling stands regarding the same issue in subsequent stages of the same case.  In re Welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990).  But “the doctrine is not normally applied by a district court to its own decisions.”  Kornberg v. Kornberg, 542 N.W.2d 379, 386 n.2 (Minn. 1996) (citation omitted).

Here, the district court’s finding in its 1996 order that the engine was complete was not challenged on appeal of that order.  Berg argues that the law-of-the-case doctrine applies because the 2001 order was issued by a judge different from the one who issued the 1996 order.  But in Kornberg, the supreme court declined to apply the doctrine to a successor judge’s decision to reconsider and amend a predecessor judge’s ruling.  See id. 

A successor judge may reverse a predecessor judge’s decision when that decision is clearly erroneous.  See Kornberg v. Kornberg, 525 N.W.2d 14, 18 (Minn. App. 1994), aff’d, 524 N.W.2d 379.  Here, at the hearing after the second remand, the successor judge stated that she believed that the predecessor judge either did not understand the significance of a complete engine or erred in making that finding.  Testimony at trial and the parties’ arguments support the conclusion that the engine was not complete.  For example, in his appellate brief, Berg argued that the predecessor judge’s finding that the engine was complete is consistent with testimony offered at trial that only minor parts were missing from the engine.  An engine that is missing minor parts is not complete, and therefore the finding was clearly erroneous.  The district court did not abuse its discretion by denying Berg’s motion for a new trial based on an irregularity in the court proceedings.


Minn. R. Civ. P. 59.01(g) provides that a new trial may be granted when a decision “is not justified by the evidence.”  When a new trial is sought on the ground that the decision is not justified by the evidence, the decision will stand unless, when viewed in the light most favorable to the decision, it is manifestly and palpably contrary to the evidence.  See Raze v. Mueller, 587 N.W.2d 645, 648 (Minn. 1999).

Berg argues that district court’s decision was not justified by the evidence.  He contends that he should have been compensated for the difference in value between a complete, unassembled Cabriolet C engine and the parts that Gohlike returns to him pursuant to the district court’s 2001 order.  But Berg’s own testimony and the testimony of others at trial, as well as Berg’s arguments on appeal, support the district court’s finding that the Cabriolet C’s engine was not complete when it was shipped to Minnesota. 

In his complaint, Berg stated that he owned the Cabriolet C engine block and the engine parts listed on Exhibit A, attached to the complaint and incorporated by reference, and that despite numerous demands, Gohlike had refused to return that engine block and those engine parts.  The district court’s 2001 order establishes a value for the engine block and for each engine part listed on Exhibit A, and the district court awarded that value to Berg.  The district court’s order therefore compensated Berg for his entire claimed loss.  

Berg contends that the district court erroneously awarded him a “K head,” an engine part that was in Gohlike’s possession, instead of an “S head.”  Berg complains that Gohlike switched the S head for the K head and that he should have received the S head or the fair market value of the S head.  Exhibit A to Berg’s complaint does not list any head.  The district court apparently did not find credible Berg’s claim that an S head existed, and this court defers to the district court’s credibility determinations.  See Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).

Finally, Berg contends that the evidence does not support the district court’s valuations of the engine parts.  To support his claim, Berg cites values that experts provided for a complete engine and for a fully restored Cabriolet C.  But the district court concluded that Berg did not ever have the parts necessary to build a complete engine.  The car was not fully restored, and the engine was not assembled.  

At trial, some experts opined as to the value of engine parts in dollars.  One expert stated values in Deutschmarks.  Experts testified regarding valuations of original parts and of reproduction parts and testified regarding the value of parts that they had never seen.  Witness testimony supports the finding that at least some of the parts that were shipped to Minnesota were not original parts.  Further, witnesses testified to wide swings in the value of parts from one year to the next. 

            The district court established the value of the missing parts at $30,150 and the value of the parts subject to replevin at $74,850, for a total valuation of $105,000.  At trial, a witness testified that Christie’s auction house set the reserve price of Berg’s Cabriolet C with a complete, unassembled engine at $375,000, and another expert testified that Christie’s generally sets the reserve price within the range of a car’s fair market value.  An expert testified that an engine is worth approximately 30% of the value of a car.  Experts testified that the percentage method is commonly used to value engines and engine parts.  The district court’s valuation of the parts was not, therefore, manifestly and palpably contrary to the evidence.


Minn. R. Civ. P. 59.01(g) provides that a new trial may be granted when a decision is “contrary to law.”  Berg contends that the district court’s decision not to conduct an evidentiary hearing or a new trial on remand is contrary to law because the successor judge had no opportunity to assess the credibility of expert witnesses.    

Minn. R. Civ. P. 63.01 provides:

If by reason of death, sickness, or other disability a judge before whom an action has been tried is unable to perform judicial duties after a verdict is returned or findings of fact and conclusions of  law are filed, any other judge * * * may perform those duties.


Rule 63.01 gives the successor judge the discretion to grant a new trial if she determines that she cannot perform her duties because she did not preside at the original trial.  But a successor judge need not grant a new trial if the record is sufficient for her to “pass fairly and intelligently” on the motion.  See Thayer v. Duffy, 240 Minn. 234, 251, 63 N.W.2d 28, 38 (1953) (holding that new trial is not required if record is sufficient for successor judge to “fairly and intelligently” decide the issue) (citation omitted). 

Here, in its 2001 order, the district court noted that the relevant valuation date for the parts was 1992, when the parts were shipped from California to Minnesota, but that

[s]ome testimony [regarding the value of parts] was given in 1996 and some in 1998.  Questioning was not precise as to the opinions on value as of January 1992 when the engine parts were moved.


            The district court also noted that


[t]he evidence, although confusing, is sufficient to make findings on the fair market value of the parts at the time of the taking. * * * The Court acknowledges that the market is small, specialized, international, fluctuating, dependent upon supply and demand, and that all evidence of value is subject to speculation, hypothesis, and personal opinion. 


The record shows that some of the experts who testified regarding the value of engine parts did not actually see those parts.  The district court apparently concluded that additional testimony would not have helped it to determine values for the parts.  Under the circumstances, the district court did not abuse its discretion by declining to hold an evidentiary hearing or to grant a new trial.  After ten years of litigation and three appeals, it is time for this case to come to a conclusion.


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