may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Tang Say Xiong,
Filed March 9, 1999
Hennepin County District Court
File No. 98-002116
Gregory W. Deckert, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 S. Sixth St., Minneapolis, MN 55402 (for respondent)
Considered and decided by Kalitowski, Presiding Judge, Short, Judge, and Klaphake, Judge.
After his van was stolen from respondent Midas's parking lot, appellant Tang Say Xiong sued Midas to recover damages for personal property allegedly in the van at the time it disappeared. Because the evidence reasonably supports the trial court's finding that Midas exercised reasonable care in the protection of the van, we affirm.
Xiong argues that the trial court failed to address or make any findings on whether a bailment existed between the parties. Because Xiong failed to raise this issue to the trial court, we do not address it on appeal other than to note that, unless clearly erroneous, the trial court's finding of no negligence would still preclude recovery by Xiong on a bailment theory. See Colwell v. Metropolitan Airports Comm'n, Inc., 386 N.W.2d 246, 247 (Minn. App. 1986) (bailee not liable if it was not negligent in protecting bailor's goods).
But other evidence shows that Midas took a number of precautions to secure the van, including parking the van in its parking lot, locking the van, and placing the keys on a clipboard inside the shop. The employee who observed the van being towed was not responsible for keeping track of tows and assumed that the tow had been approved. The manager who was responsible for tows did not observe the tow and did not realize the van was gone until Xiong arrived to pick it up. The keys to the van were still inside the shop on the clipboard.
Midas was not an insurer of the van, nor can it be held strictly liable for its disappearance. Given evidence that Midas took a number of precautions to safeguard the van, we cannot conclude that Midas is negligent as a matter of law or that the trial court clearly erred in finding that Midas had exercised reasonable care. See Minn. R. Civ. P. 52.01 (trial court's findings must be affirmed unless clearly erroneous, with due regard given to court's ability to determine witness credibility); Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987) (trial court's findings will be reversed as clearly erroneous only if, upon review of entire evidence, appellate court left with definite and firm conviction mistake has been made); Northern States Power Co. v. Lyon Food Products, Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975) (clearly erroneous means "manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole").