This opinion will be unpublished and

may not be cited except as provided by

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






Do All Printing.Com, Inc.,





Our Community USA,



Filed August 19, 2003


Kalitowski, Judge


Anoka County District Court

File No. C5025067


David E. Albright, 7814  131st Street West, Apple Valley, MN 55124 (for respondent)


Our Community USA, 3989 Central Avenue Northeast, #635, Columbia Heights, MN 55421 (appellant)


            Considered and decided by Schumacher, Presiding Judge, Randall, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N


            In this dispute over whether respondent performed in accordance with the terms of the parties’ contract, appellant argues that the evidence does not support the district court’s findings of fact, conclusions of law, and judgment.  We disagree.




When a party fails to raise an issue before the district court in a motion for amended findings or a new trial, review on appeal is limited to whether the evidence supports the court’s findings of fact and whether those findings support the conclusions of law.  Gruenhagen v. Larson, 310 Minn. 454, 458-59, 246 N.W.2d 565, 569 (1976).

1.         Findings of Fact

A district court’s finding 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 district court to judge the credibility of the witnesses.  Minn. R. Civ. P. 52.01.  When reviewing whether the district court’s findings are clearly erroneous, we view the record in the light most favorable to the district court’s judgment.  Rogers v. Moore, 603 N.W.2d 650, 656 (Minn. 1999).  This court will not reverse the district court’s judgment merely because we view the evidence differently.  Id.  Rather, to warrant reversal, the court’s factual findings must be “manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.”  Id. (quotation omitted).

Here, we agree with appellant’s contention that the district court erred in finding that the phonebook covers were delivered late.  The testimony at trial established that the survival guides, not the phonebook covers, were delivered late.  But the error is harmless.  Because the covers and guides were to be delivered at the same time, for appellant to prevail in her breach of contract claim all that mattered is that one of the items was delivered late.  And the fact that the district court identified the wrong item that was delivered late did not affect the district court’s analysis in this case.  See Minn. R. Civ. P. 61 (requiring harmless error to be ignored). 

The district court also erred in finding that “[appellant] further contends that any imperfections were the product of normal variation and screen issues * * * .”  This was respondent’s position at trial, not appellant’s.  But again such error is harmless.  Minn. R. Civ. P. 61.  It is obvious from the district court’s decision that the district court inadvertently identified the argument with the wrong party.  And the inadvertent error did not affect the district court’s analysis. 

Appellant also disagrees with other findings of fact made by the district court.  But those findings are supported both by the record and by the testimony of respondent at trial.  Only appellant and respondent testified before the district court.  The fact that the district court adopted respondent’s position over that of appellant does not make the district court’s findings clearly erroneous.  Due regard shall be given to the opportunity of the district court to judge the credibility of the witnesses.  Minn. R. Civ. P. 52.01.  Here the district court found respondent to be the more credible witness. 

2.         Conclusions of Law

A warranty of fitness for a particular purpose is implied when a seller

has reason to know any particular purpose for which the goods are required and that the buyer is relying on the seller’s skill or judgment to select or furnish suitable goods * * * .


Minn. Stat. § 336.2-315 (2002).  An express warranty arises from any affirmation of fact or promise made by the seller to the buyer that relates to the goods and becomes part of the basis of the bargain.  Minn. Stat. § 336.2-313(1)(a) (2002).

Appellant argues that she specifically told respondent that she did not want the covers to have a front and a back.  Moreover, appellant contends that respondent orally warranted that the covers would meet appellant’s particular business needs.  But because of the alterations to appellant’s artwork and the addition of spine scores and margins, appellant claims that respondent produced a phonebook cover with both a front and a back, thus breaching the contract under Minn. Stat. § 336.2-315 and Minn. Stat. § 336.2-313(1)(a).

Given our limited review in this case, we conclude that the district court’s findings support its conclusion that respondent did not breach the contract.  The findings establish that appellant requested changes after viewing the first proof of the phonebook covers.  Respondent then provided appellant with a second proof that included a change in the size of the artwork, along with the addition of spine scores and margins on the covers.  This second proof was approved by appellant.  Therefore, by producing a finished product that was identical to the approved second proof, respondent provided phonebook covers that were of merchantable quality for appellant’s particular business needs.

Appellant also contends that respondent breached the contract by failing to deliver on his promise to provide the guides within two weeks after receiving the Word file disk.  Appellant claims that such a promise created an express warranty by respondent under Minn. Stat. § 336.2-313(1)(a).  But the district court found that respondent would have been able to deliver the goods in a more timely fashion had appellant provided respondent with the necessary graphics and fonts that respondent requested from appellant.  Thus the findings support the court’s conclusion that any delay was the result of appellant’s conduct.

Finally, appellant argues that she should either be allowed to recover her down payment on the printing jobs or not have to pay the remainder of the bill because she rejected the phonebook covers.  Under Minn. Stat. § 336.2-711(1) (2002), when the seller fails to make delivery or repudiates, or the buyer rightfully rejects the goods, the buyer may cancel and in addition recover so much of the price that has already been paid.  But here respondent made delivery and did not repudiate.  And contrary to appellant’s claim, she did not reject the phonebook covers.  Appellant testified at trial that she mailed out all of the phonebook covers.  Therefore, appellant is not entitled to relief under Minn. Stat. § 336.2-711(1).