may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Waconia Farm Supply,
Michael L. Weinandt,
Filed February 16, 1999
Toussaint, Chief Judge
Carver County District Court
File No. C2961837
Lawrence H. Crosby, Crosby & Associates, 630 Roseville Professional Center, 2233 Hamline Avenue North, St. Paul, MN 55113 (for appellant)
Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Foley, Judge.[*]
Respondent Waconia Farm Supply (Waconia) sued appellant Michael Weinandt for breach of a lease agreement and Weinandt counterclaimed alleging breach of several warranties, breach of contract, and failure of essential purpose of applicable warranties. After a bench trial, the district court ordered judgment in favor of Waconia and dismissed Weinandt's counterclaim. On appeal, Weinandt challenges the district court's (1) finding that Waconia was unaware of his modifications of the leased baler; (2) finding that the problems with the baler were caused by his modifications of the baler, using the baler in a stationary position, and using the baler to bale a straw and manure waste product; (3) conclusion that there was no breach of an implied warranty of merchantability, implied warranty of fitness for a particular purpose, and/or an express warranty; and (4) taxation of costs and disbursements for Waconia's expert witness fee. Waconia challenges the district court's refusal to tax costs and disbursements as reimbursement for wages it paid to its employee-witnesses, and seeks review of the district court's denial of its motion to dismiss the counterclaim based on an exculpatory clause in the lease agreement.
Because (1) there is sufficient evidence in the record to support the district court's findings of fact; (2) Weinandt failed to support his challenge to the taxation of costs and disbursements for Waconia's expert witness fee with any authority; (3) employee-witnesses are not entitled to compensation for the time they spent testifying; and (4) Waconia failed to file a notice of review from the district court's denial of its motion to dismiss based on an exculpatory clause, we affirm.
A reviewing court shall not set aside a district court's findings of fact, whether based on oral or documentary evidence, unless they are clearly erroneous. Minn. R. Civ. P. 52.01. "[D]ue regard shall be given to the opportunity of the district court to judge the credibility of the witnesses." Id. To prevail on appeal, in addition to showing error, an appellant must show that the alleged error caused prejudice. Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975) (quoting Waters v. Fiebelkorn, 216 Minn. 489, 495, 13 N.W.2d 461, 464 (1944)); see Minn. R. Civ. P. 61 (harmless error is to be ignored).
Weinandt testified that he never discussed his intended modifications with Waconia and has presented no evidence that Waconia knew anything about the modifications at the time of negotiations or when the lease was executed. Waconia's mechanic testified, however, that he saw the modified auger system when he traveled to Canterbury Downs to repair the baler, subsequent to the execution of the lease.
Even if the district court erred in finding Waconia was unaware of the actual modifications subsequent to the execution of the lease agreement, Weinandt makes no showing of how this error has harmed or prejudiced him. Thus, we affirm the district court's finding.
Weinandt argues that buildup of the waste product could not have been a factor in the baler's malfunction because it was the job of several laborers to clean the waste away from the baler. However, the record establishes that Trent Manteuffel, the Waconia mechanic primarily responsible for servicing the baler, had to use a hammer, chisel, and other tools to chip away the hardened manure and straw product that was plugging the knotter needle holes. In addition, an expert testified that the build up problem was likely made worse by operating the baler in a stationary position, as opposed to pulling it behind a tractor down a windrow, because the waste was less likely to drop off. Because the record supports the district court's finding of the cause of the baler's problems, we conclude that there was no clear error.
A. Implied Warranty of Fitness for Particular Purpose
A warranty of fitness for a particular purpose is implied when a lessor, at the time the lease is executed, has reason to know of a particular purpose for which the lessee requires the goods, and the lessee relies on the lessor's skill or judgment to select or furnish suitable goods. Minn. Stat. § 336.2A-213 (1998).
As noted above, Weinandt admitted that he never told Waconia about his intended modifications at or before the time the parties executed the lease contract and he presented no evidence that Waconia had actual knowledge of the modifications until after the execution of the lease. Therefore, Weinandt could not have relied on Waconia's skill or judgment to select a baler that, after being modified, would successfully bale a manure and straw product in a stationary position. The district court's finding is affirmed.
B. Implied Warranty of Merchantability
A warranty of merchantability is implied in lease contracts when the lessor is a merchant with respect to the goods of that kind. Minn. Stat. § 336.2A-212 (1) (1998). To be merchantable, goods must be, among other things, fit for the ordinary purposes for which goods of that type are used. Id. (2) (c) (1998).
Rich Buetow, the Waconia salesperson with whom Weinandt negotiated the lease agreement, testified that he used the baler in question successfully prior to Weinandt's possession. In addition, two other witnesses testified that they used the same baler successfully subsequent to its repossession by Waconia from Weinandt. Furthermore, both Buetow and Waconia's expert witness testified that the baler would have worked properly had it been used as it had been demonstrated to Weinandt. Because the record supports the court's finding that the baler was merchantable and fit for its ordinary purpose, there was no clear error.
C. Express Warranty
When a lessor makes any affirmation of fact or promise, provides a description, or supplies any sample or model of goods, and such affirmation, promise, description, sample, or model becomes part of the basis of the bargain, the lessor's words or actions create an express warranty that the goods will conform thereto. Minn. Stat. § 336.2A-210 (1998).
Weinandt alleges that Buetow expressly warranted that the baler was capable of baling the high moisture manure and straw product, and that the demonstrations Waconia performed at the time of the lease negotiations gave rise to an express warranty.
First, with regard to Buetow's alleged express warranty, even if he made such a promise, the district court found that Weinandt's modifications of the baler and using it in a stationary position contributed to its malfunction. Thus, it cannot be concluded that the baler would not have baled the product had it not been modified and used in a stationary position.
Second, the demonstrations Weinandt refers to were both performed by a baler that had not been modified in any way. Furthermore, both demonstrations were performed by pulling the baler behind a tractor down a windrow of product. Thus, the demonstrations did not expressly warrant the proper functioning of the baler as modified and operated in a stationary position. Therefore, we affirm the district court's finding.
An assignment of error in an appellant's brief that is based on "mere assertion" and is not supported by argument or authority is waived unless prejudicial error is obvious on mere inspection. State, Pollution Control Agency v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (quoting Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971)).
Weinandt argues on appeal the "[n]ormally, an employee or director or officer of a party will not be able to ask for reimbursement as a witness at trial." Weinandt cites no authority for his proposition and provides no argument suggesting that the witness in question is an employee, director, or officer of a party. Thus, he has waived this issue on appeal.
Weinandt frames two issues on appeal as (1) whether the warranties at issue failed their essential purpose; and (2) whether a lessor has an obligation to inform a lessee that a lessee's particular use of equipment is mechanically inappropriate or cannot be successful. Weinandt cites no authority for either issue other than "some lessons to be drawn" from fraud cases. Weinandt did not raise fraud in his counterclaim. Furthermore, Weinandt admits that the district court did not reach either issue. Therefore, consistent with Modern Recycling and Thiele, we decline to address both issues on appeal.
A district court's award of costs and fees is reviewed under an abuse of discretion standard. Carlson v. Mutual Serv. Cas. Ins. Co., 527 N.W.2d 580, 584 (Minn. App. 1995), review denied (Minn. Apr. 27, 1995).
A witness who is required to give testimony and who is not a party to the action or an employee of a party is entitled to reasonable compensation for the time and expense involved in giving such testimony. Minn. R. Civ. P. 45.06 (emphasis added). Rule 45.06 does not allow for compensation to parties and employees of parties for their time and expense involved in giving testimony because they have an interest in the litigation.
Because Waconia's employee-witnesses have no right to compensation, the district court did not abuse its discretion by refusing to reimburse Waconia for paying its employee-witnesses their ordinary wages for the days they spent testifying.
In order to obtain appellate review of a judgment or order entered which may adversely affect a respondent, the respondent must file a notice of review. Minn. R. Civ. App. P. 106; see City of Ramsey v. Holmberg, 548 N.W.2d 302, 305 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996) (holding that an issue decided adversely to a respondent is not properly before this court if no notice of review is filed).
Because Waconia failed to file a notice of review for the district court's denial of its motion to dismiss Weinandt's counterclaim, we decline to address this issue on appeal.
[*] Retired judge of the Minnesota Court of Appeals, serving by apointment pursuant to Minn. Const. art. VI, § 10.