This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
S.S. Enterprises, Inc.,
Heartland Automotive Services, Inc.,
Filed February 28, 2006
Dakota County District Court
File No. C5-03-7215
Eklund, Jacobson Buffalo Shoessler & Magnuson, Ltd.,
Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
In this appeal from summary judgment in an action for conversion, appellant argues that the district court erred in holding that appellant failed to establish the fair market value of coupon booklets that were taken from appellant’s employee. We affirm.
Appellant S.S. Enterprises, Inc., d/b/a Paradise Car Wash, operates car washes at four locations in the Twin Cities metropolitan area. Appellant’s employee Jennifer Tran was responsible for delivering 1,000 coupon booklets to the four car-wash locations. Each booklet contained five coupons that could each be redeemed for a full-service car wash. Appellant intended to sell each coupon booklet for $67.95, which amounted to a discount of about $2.00 per car wash. The coupons contained no expiration dates, serial numbers, bar codes, or other information that would allow appellant to track the date or location of their sale or redemption.
After delivering 250 coupon booklets to one car-wash location, Tran stopped at Jiffy Lube to have her car serviced. The box of coupon booklets was removed from the trunk of Tran’s car during the servicing, and Tran forgot to take it with her when she left Jiffy Lube. By the time Tran realized the box was missing, she could not recall where she had left it.
Jiffy Lube employees converted the coupon booklets to their own use. Appellant discovered that the coupons had been taken when a customer redeemed a coupon and said that the coupon was received from a Jiffy Lube employee. Appellant contacted Jiffy Lube and recovered all but 188 of the missing coupon booklets.
brought this conversion action against respondent Heartland Automotive
Services, Inc., which owns and operates the Jiffy Lube where Tran had her car
serviced, seeking to recover $12,774.60, which is the total cost of 188 coupon
booklets at $67.95 each. The parties
filed cross-motions for summary judgment.
Based on its conclusion that appellant’s loss was equal to the value of
the coupons actually redeemed and appellant failed to prove that any of the stolen
coupons had been redeemed, the district granted summary judgment for respondent. In an order opinion, this court reversed and
remanded the district court’s decision on damages, explaining, “Because the
value of the coupons was their fair market value at the time of the conversion,
the district court erred as a matter of law in concluding the coupons had no
value prior to redemption.” S.S. Enters., Inc. v. Heartland Auto.
Servs., Inc., No. A04-581 (
D E C I S I O N
On appeal from a
grant of summary judgment, this court applies the de novo standard of review to
determine whether any genuine issues of material fact exist and whether the
district court erred in applying the law.
STAR Ctrs., Inc. v. Faegre &
Benson, L.L.P., 644 N.W.2d 72, 76-77 (
Conversion occurs when a person willfully interferes with the personal property of another without legal justification, depriving the lawful possessor of use and possession. Russ, 566 N.W.2d at 71. “The measure of damages for conversion is the fair market value of the . . . goods at the time of the conversion, plus interest from that date.” Bloomquist v. First Nat’l Bank of Elk River, 378 N.W.2d 81, 86 (Minn. App. 1985), review denied (Minn. Jan. 31, 1986). Fair market value is “[t]he amount at which property would change hands between a willing buyer and a willing seller.” Black’s Law Dictionary 597 (6th ed. 1990).
The only evidence that appellant cites to establish the fair market value of the coupon booklets is the testimony of appellant’s owner that a booklet of coupons costs $67.95. But the owner was not asked, and, consequently, did not testify that any booklets were sold for $67.95, or any other price. The fact that appellant was willing to sell the booklets for $67.95 does not prove that there were buyers willing to buy the booklets at that price. Because appellant did not produce any evidence that any coupon booklets were sold for any price, it failed to meet its burden of establishing the fair market value of the coupon booklets, and an award of damages would be based on speculation. Damages that “are remote and speculative cannot be recovered.” Jackson v. Reiling, 311 Minn. 562, 563, 249 N.W.2d 896, 897 (1977); see Olson, Clough & Straumann, CPA’s v. Trayne Props., Inc., 392 N.W.2d 2, 4-5 (Minn. App. 1986) (stating an action must be dismissed when the claimed “damages are too speculative and cannot be calculated to a reasonable degree of certainty”).
The district court did not err in concluding that appellant failed to present evidence to meet its burden of proving the fair market value of the coupon booklets.