This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Dakota County District Court
File No. C9017407
Steven T. Appelget, 1102 Grand Avenue, St. Paul, MN 55105 (for respondent)
Julian C. Janes, Gislason, Martin & Varpness, P.A., 7600 Parklawn Avenue, Suite 444, Edina, MN 55435 (for appellant)
Considered and decided by Peterson, Presiding Judge, Harten, Judge, and Halbrooks, Judge.
Appellant argues that the district court erred by denying appellant’s motion for judgment notwithstanding the verdict (JNOV) because the jury finding that respondent qualified as a “consumer” under Minn. Stat. § 325F.665 (2002) (Minnesota’s “Lemon Law”) was not supported by the evidence. We agree that the jury heard no competent evidence from which a reasonable inference could be made that respondent used his truck for personal use 40% of the time. Accordingly, we reverse and remand.
On 18 September 1997, respondent Richard Beckman bought a new 1998 Dodge 2500 4x4 pickup truck from a DaimlerChrysler dealer. Respondent testified that the truck operated without problems the first year he owned it, but significant and recurring problems began in August 1998. In January 2000, respondent sued DaimlerChrysler alleging breach of warranty and violation of Minn. Stat. § 325F.665 (1998) (Minnesota’s “Lemon Law”). On 8 April 2002, a jury trial began. The truck had between 91,000 and 92,000 miles on it at the time of the trial.
When he bought the truck, respondent was part owner of a roofing company called Wildwood Construction, Inc. The construction company did not own or finance respondent’s truck. For two and one-half years after he bought the truck, it served as his only means of transportation. He used it for trips to his father’s cabin in Northern Wisconsin, to his mother’s house in Wisconsin, and to take his wife on dates during their courtship.
Respondent testified that he sometimes drove up to 100 miles a day back and forth from work; he also used his truck to tow a 6 by 10 foot enclosed trailer containing a small air compressor, ladders, tarps, and other roofing equipment. Respondent estimated that 60% to 70% of the 91,000 or 92,000 miles on the truck at the time of the trial were for business use. For tax purposes, respondent “wrote off” the truck mileage as business use. Additionally, shortly after buying the truck, respondent installed a $3,500 snow-plow kit on it. Respondent testified that he used the truck to plow snow 5% to 10% of the time. When asked
[d]o you agree with your husband that between plowing and business use, he uses the car about 65 to 80 percent for that and about 20 percent for personal?
respondent’s wife replied, “Correct.”
At the close of respondent’s evidence, the district court granted appellant’s motion for a directed verdict on the breach of warranty claim, but denied appellant’s motion for a directed verdict on the Lemon Law claim. The jury returned a verdict finding that the vehicle was a “lemon” and that appellant used the truck for personal, family, or household use at least 40% of the time.
On 3 May 2002, the district court heard posttrial motions. Respondent moved for an award of attorney fees and costs. Appellant moved for JNOV on the grounds that there was no competent evidence from which the jury could conclude that 40% of the truck use was personal. The district court granted respondent’s motion and denied appellant’s motion for JNOV. In its order, the district court stated that a
jury may rely upon reasonable inferences drawn from all of the evidence in the case. Testimony, such as [respondent’s] using the vehicle for dates and running personal errands as well as being given a purple Dodge Neon as a loaner car for seven weeks (as opposed to a similar vehicle to the truck in question) was sufficient evidence to overcome the testimony that the vehicle was used for business purposes more than 60% of the time.
This appeal followed.
Pursuant to Minn. Stat. § 325F.665, subd. 3(a) (2002), a person is entitled to relief from the manufacturer for a vehicle that is a “lemon” only if he qualifies as a consumer. The statute defines consumer as
the purchaser or lessee, other than for purposes of resale or sublease, of a new motor vehicle used for personal, family, or household purposes at least 40 percent of the time * * * .
Minn. Stat. § 325F.665, subd.1(a) (2002). Here, appellant argues that because there was no evidence by which the jury could reasonably conclude that respondent used his truck for personal use 40% of the time, the district court erred in denying it JNOV. Respondent replies that the jury was free to disbelieve any evidence given, including his own testimony suggesting his apparent belief that driving to work constituted business use. On that basis, respondent suggests that the jury was free to conclude that 60% to 70% of respondent’s driving was not for business use, contrary to his statements.
An appellate court reviews de novo the denial of a motion for JNOV. Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998). But where JNOV has been denied by a district court, the denial “must be affirmed, if, in the record, there is any competent evidence reasonably tending to sustain the verdict.” Id. (quotation omitted). “Unless the evidence is practically conclusive against the verdict, this court will not set the verdict aside.” Id. (quotation omitted). “The evidence must be considered in the light most favorable to the prevailing party and an appellate court must not set the verdict aside if it can be sustained on any reasonable theory of the evidence.” Id. (citation omitted). Moreover, every inference reasonably to be drawn from the evidence must be admitted. Seidl v. Trollhaugen, Inc., 305 Minn. 506, 507, 232 N.W.2d 236, 239 (1975).
Where the resolution of a case rests on conflicting testimony, particular deference is given to the jury because weighing credibility is one of their exclusive functions. State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980). Additionally, while a jury may choose a number from a range of numbers given without error, here, the jury heard no testimony that would support the minimum requirement of 40% personal use.
Respondent testified that he used the truck for business use more than 60% of the time, and his wife concurred. Respondent also testified without contradiction that he used the truck to plow snow 5% to 10% of the time. An estimate of business use less than 60% was never given. Instead, the jury heard only that respondent drove the truck on dates while courting his wife and to visit his parents in Wisconsin. The jury also heard respondent qualify his answers with phrases like, “The majority, probably. I don’t know,” and, “Yeah, I guess,” in response to questions about comparing business use with personal use. Uncertain answers do not provide conflicting evidence from which a jury may make a reasonable inference. See generally Kaiser-Bauer v. Mullan, 609 N.W.2d 905, 910 (Minn. App. 2000) (reasoning that given conflicting evidence, the jury could reasonably make a finding based on one expert’s testimony, but where the “the record contains no testimony or evidence * * * the jury could not reasonably have found * * * .”), review denied (Minn. 25 July 2000). Testimony by respondent and his wife precludes a conclusion by the jury that the vehicle was used for personal, family, or household purposes at least 40% of the time.
Respondent suggests that the jury heard him say that he thought that “business use” included driving to and from work:
Q. Okay. Did you make a distinction between your personal use and your business use of the truck?
A. As far as?
Q. Do you—you just drive this truck to work?
But during cross-examination following this exchange, appellant clearly testified that he wrote off the mileage of the truck as a business use. And even after addressing the distinction between business and personal use, respondent did not change his percentage answers or provide revised testimony.
We conclude that reasonable minds could not differ as to the proper outcome of this case. See Boschee v. Duevel, 530 N.W.2d 834, 842 (Minn. App. 1995) (concluding that JNOV “may be granted only when the evidence is so overwhelming on one side that reasonable minds cannot differ as to the proper outcome.” (quotation omitted)), review denied (Minn. 14 June 1995). All evidence provided that, at minimum, respondent used his truck 60% for business and another 5% to 10% for snow plowing. The jury heard no competent evidence from which it could conclude that respondent used his truck for personal use at least 40% of the time. See Pouliot, 582 N.W.2d at 224 (concluding that the denial of JNOV “must be affirmed, if, in the record, there is any competent evidence reasonably tending to sustain the verdict.” (quotation omitted)). Accordingly, we reverse and remand to the district court with instructions that the district court grant JNOV to appellant.
Reversed and remanded.
 Appellant’s use of a case from another jurisdiction, Volkswagen of Am., does not provide specific facts for comparison, but serves as an example of a court overturning a decision where the respondent specifically testified that he used his vehicle a significant amount, 85%, for business. Volkswagen of Am., Inc. v. Friedman, 166 A.D.2d 709, 710-11(N.Y. App. Div. 1990) (finding no rational basis in the record for determining that respondent was a consumer where respondent had testified that he used the vehicle for 85% business). The other case from another jurisdiction, Zine v. Chrysler Corp., 600 N.W.2d 384, 392 (Mich. App. 1999), dealt with a phrase that the Michigan courts had previously interpreted, specifically determining whether the important characteristic was whether the person purchased the vehicle for a business use versus used the car for a business use.
 The jury was given no instruction on this topic, but heard respondent’s lawyer argue that driving to work was not a business purpose. The jury was instructed to rely on their own experience and good judgment.
 Q: Let’s do it this way. I think you said 60 are (sic) or 70 percent. Of the 92,000 miles, approximately what percentage with (sic) family or personal use versus driving around for work? Is it probably 60 to 70 thousand of the 92,000?
A: As far as work purposes?
A. Yeah, I guess.