This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Air Conditioning Associates, Inc.,



Richard Schurstein d/b/a

Schurstein Roofing,


Filed May 4, 1999


Willis, Judge

Hennepin County District Court

File No. 9721578

Brian W. Rude, 3412 Skycroft Circle, Minneapolis, MN 55418 (for respondent)

James A. Reichert, Dooley & Reichert, PLC, 270 Grain Exchange Building North, 301 Fourth Avenue South, Minneapolis, MN 55415 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Lansing, Judge, and Willis, Judge.



Richard Schurstein, d/b/a Schurstein Roofing, appeals from a judgment requiring him to pay damages to respondent Air Conditioning Associates, Inc., arguing the district court erred in finding him negligent and in measuring damages. We affirm.


Appellant entered into a contract with respondent whereby appellant agreed to prepare respondent's customer's roof for installation of an air-conditioning unit. On April 16, 1997, in connection with that work, appellant cut the roof membrane, which he knew was vinyl, and it immediately developed two 12- to 14-foot cracks. Temporary repairs to the roof cost $380, and the entire roof had to be replaced at a cost of $18,000. At the time of the incident the roof was 15 years old and the building owner estimated it had five years of its 20-year expected usefulness remaining. As reparation for the damage, the building owner deducted $4,880 from the contract price; $4,500, which was one-fourth the roof's replacement cost, plus $380 for temporary repairs. Respondent sued appellant to recover that amount.

The district court found that the temperature was approximately 20 degrees Fahrenheit when appellant cut the roof and that "roofers, including appellant, knew that a vinyl roof will * * * contract in the cold and should not be cut in cold temperatures." The court concluded that appellant was negligent in cutting the roof when the temperature was below freezing and that appellant's negligence caused damage to the roof. The court ordered judgment for respondent in the amount the building owner deducted from its contract with respondent, and this appeal followed.



Admitting he owed respondent a duty of ordinary and reasonable care, appellant argues that respondent did not show appellant breached that duty of care. See Luke v. City of Anoka, 277 Minn. 1, 8, 151 N.W.2d 429, 434 (1967) (explaining reasonable care requires taking precautions against ordinary risks or those that can reasonably be anticipated). Generally, negligence, breach, and proximate cause are questions of fact. Stelling v. Hanson Silo Co., 563 N.W.2d. 286, 290 (Minn. App. 1997) (breach); Block v. Target Stores, Inc., 458 N.W.2d 705, 712 (Minn. App. 1990) (negligence and proximate cause), review denied (Minn. Sept. 28, 1990). This court will not reverse a district court's findings of fact unless they are clearly erroneous. Minn. R. Civ. P. 52.01. A district court's findings of fact are clearly erroneous when they are not "reasonably supported by evidence in the record considered as a whole." Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 441 (Minn. 1983) (citation omitted).

One of respondent's employees testified that it was below freezing on April 16, 1997, and that another roofer had told him "anybody knows" this type of roof cannot be cut when it is below freezing. Respondent's superintendent testified that appellant expressed no concerns to him with respect to cutting the roof in the cold temperature. Because this evidence reasonably supports the district court's finding that appellant breached his duty to exercise reasonable care, we conclude the finding is not clearly erroneous.

Appellant also challenges the district court's finding that appellant's negligence caused damage to the roof, claiming the age and weathered condition of the roof was the proximate cause of the damage. Acting as the finder of fact, the district court rejected appellant's theory regarding the cause of the roof damage. We defer to the district court's assessment of the credibility of witnesses and the weight to be given their testimony. Minn. R. Civ. P. 52.01 ("[D]ue regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.").

Here, one of respondent's employees testified that the roof cracked because appellant cut it when the temperature was below freezing, and appellant admitted that he had minimal experience with vinyl roofs. Based on this testimony, we conclude the district court's finding that appellant's negligence was the proximate cause of the damage to the roof is not clearly erroneous.

Measure of Damages

The district court concluded that respondent was entitled to recover one-fourth of the roof's replacement cost, plus the cost of the temporary repairs. Appellant argues that the district court used an improper measure of damages, citing Rinkel v. Lee's Plumbing & Heating Co., 257 Minn. 14, 20, 99 N.W.2d 779, 783 (1959) (explaining that when property is not completely destroyed proper measure of damages is lesser of difference in value of property before and after loss or cost of restoration). Whether a district court used a proper method of measuring damages is a question of law. Snyder v. City of Minneapolis, 441 N.W.2d 781, 789 (Minn. 1989).

The rule described in Rinkel does not apply in all situations. Rinkel, 257 Minn. at 20, 99 N.W.2d at 783. The proper measure of damages in a negligence case is that one who commits a tort is liable for all proximate consequences of the tort. Marlowe v. Gunderson, 260 Minn. 115, 119-20, 109 N.W.2d 323, 326 (1961). Causation determines the extent of liability, and the measure of recovery depends on the facts of the case. Id.

Here, appellant is liable for the amount respondent was damaged, which was the amount respondent rightly compensated the building owner for the roof damage. Because the roof could not be restored to a functional condition and because it had one-fourth of its 20-year expected usefulness remaining at the time of the incident, the cost of temporary repairs plus one-fourth of the replacement cost was a reasonable basis on which to assess damages. See Blaine Econ. Dev. Auth. v. Royal Elec. Co., 520 N.W.2d 473, 479 (Minn. App. 1994) (explaining that once existence of loss is shown, difficulty of proving its amount will not preclude recovery if there is proof of reasonable basis on which to approximate amount). Given the facts of this case, we conclude that the district court did not err as a matter of law in selecting a measure of damages.

Admission of Evidence

Appellant argues that the district court erred in admitting into evidence a letter that respondent received from the building owner. Because appellant did not move for a new trial, this evidentiary ruling is not subject to appellate review. Sauter v. Wasemiller, 389 N.W.2d 200, 201 (Minn. 1986) ("[E]videntiary rulings * * * are subject to appellate review only if there has been a motion for a new trial in which such matters have been assigned as error.") (citation omitted). We therefore decline to review this issue.

Respondent's Costs and Fees

Respondent requests that the court sanction appellant for raising frivolous and meritless issues on appeal by awarding costs and fees to respondent. An award of appellate costs and attorney fees as a sanction is governed by Minn. Stat. § 549.211 (1998). See Cole v. Star Tribune, 581 N.W.2d 364, 370-71 (Minn. App. 1998) (sanctioning appellants by awarding attorney fees to respondent pursuant to Minn. Stat. § 549.211). Because respondent did not file a separate motion for sanctions as required by the statute, we deny its request. See Minn. Stat. § 549.211, subd. 4 (1998) ("A motion for sanctions under this section must be made separately from other motions or requests * * * .").