This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).






Scott Larson, d/b/a ZVDAC Enterprises,





Clement Felix,



Filed May 15, 2007

Reversed and remanded

Halbrooks, Judge



Winona County District Court

File No. 85-CV-05-998



Bruce A. Nelson, Robertson, Blahnik & Nelson, 177 Main Street, Suite 206, P.O. Box 167, Winona, MN 55987 (for appellant)


Clement Felix, 27658 County Road 19, Winona, MN 55987 (pro se respondent)


            Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from a judgment in which the district court found that both parties had breached the contract but granted appellant $1,500 in equitable damages, appellant argues that he did not breach the contract, and, therefore, should receive full compensation according to its terms.  We reverse and remand.


            Respondent Clement Felix sought to purchase hearing aids from appellant Scott Larson d/b/a ZVDAC Enterprises on September 2, 2004.  After completing a hearing test and trying available products, respondent selected a hearing aid and signed a purchase agreement whereby he agreed to pay $5,814 for the custom-made devices.  The terms of the purchase agreement provide that a purchaser “[c]an exchange for another model or receive a full refund if you cannot adjust with in 30 days after delivery.”[1]  Respondent picked up his hearing aids and received instructions about their use on September 14, when the 30-day period began to run. 

            Appellant’s office contacted respondent with a series of standard follow-up calls and appointments.  Two days after receiving the hearing aids, appellant’s office called respondent, who only reported itchiness in his ears.  On the second follow-up call on September 24, respondent continued to report itching and some hearing improvement.  Appellant’s office scheduled a follow-up appointment on September 28, at which time appellant provided respondent with anti-itch cream and tuning adjustments to the hearing aids. 

            The parties had no further contact until November 29, when respondent called appellant’s office, complaining about fit and hearing quality, which he reported had not improved.  Appellant’s office scheduled an appointment for three days later.  In an effort to address respondent’s concerns, appellant returned one of the hearing aids to the laboratory to have it reshaped.  Respondent received the reshaped hearing aid on December 17, and on the follow-up call four days later, he complained only that the adjustment was loud.  The next month, respondent complained about sinus problems, noise, and soreness in his ears.  Appellant again made adjustments to improve respondent’s hearing and modified the hearing aids to reduce soreness.  Respondent returned three days later, on January 17, for a checkup and reported that “things were better.”

            At his scheduled January 24 appointment, respondent returned his hearing aids.  Although appellant stated that he could not accept a return after 30 days, he kept the hearing aids in the event that respondent wanted to try further adjustments.  Because the hearing aids were custom-fitted for respondent, they cannot be resold or returned to the factory.  Respondent claimed that appellant breached an “implied warranty” because the hearing aids did not “do what . . .  I expected [them] to do and what [I] was told that [they] would do.” 

            Appellant filed suit in conciliation court.  After a contested hearing, the conciliation court awarded $5,938.42 to appellant—the price of the hearing aids plus fees and disbursements.  Respondent appealed to the district court, and the conciliation court judgment was subsequently vacated.  Following trial, the district court concluded that “[n]either party performed according to the terms of the contract.  [Respondent] didn’t receive what he bargained for or reasonably expected for the price contracted for,” but respondent also did not return the hearing aids within 30 days.  Therefore, the district court granted an equitable remedy to appellant of $1,500 to offset his loss of time and materials.  This appeal follows.


            The parties do not dispute the facts.  Application of a statute to the undisputed facts of a case involves a question of law, and the district court’s decision is not binding on this court.  O’Malley v. Ulland Bros., 549 N.W.2d 889, 892 (Minn. 1996).

Acceptance of goods results when the buyer (1) after inspection signifies that the goods conform to the contract or that the buyer will retain the goods notwithstanding nonconformity, (2) fails to make an effective rejection after a reasonable opportunity to inspect the goods, or (3) acts inconsistently with the seller’s ownership.  Minn. Stat. § 336.2-606(1) (2006).  Upon acceptance, “[t]he buyer must pay at the contract rate for any goods accepted.”  Minn. Stat. § 336.2-607(1) (2006).  Furthermore, “[t]he burden is on the buyer to establish any breach with respect to the goods accepted.”  Minn. Stat. § 336.2-607(4) (2006).  Upon breach, the seller may recover the price of the goods “if the seller is unable after reasonable effort to resell them at a reasonable price or the circumstances reasonably indicate that such effort will be unavailing.”  Minn. Stat. § 336.2-709(1)(b) (2006). 

Here, respondent received the hearing aids on September 14.  Thus, the 30-day guarantee period expired by October 14.  Following the adjustments made to the devices on September 28, appellant heard nothing more from respondent until November 29.  While appellant continued to work with respondent in an effort to satisfy him, appellant never agreed to an extension of the 30-day period. 

We conclude that respondent breached the contract by failing to pay for the hearing aids and by returning them three months after the 30-day contractual return period had expired.  Because no market exists for used, custom-made hearing aids, appellant properly sought recovery of the selling price.  The district court erred in denying appellant the full contract price, and we, therefore, reverse the judgment.  On remand, the district court shall enter judgment in favor of appellant consistent with the original findings of the conciliation court.

Reversed and remanded.

[1] In addition, the agreement stated in capital letters that “Minnesota state law gives the buyer the right to cancel this purchase for any reason anytime prior to midnight of the 30th calendar day after receipt of the hearing aid(s).  This cancellation must be in writing and must be given or mailed to the seller.”  As required, respondent received a copy of a brochure describing the statutory 30-day cancellation right.