This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1400

 

S.S. Enterprises, Inc.,
Appellant,

vs.

Heartland Automotive Services, Inc.,
Respondent.

 

Filed February 28, 2006

Affirmed

Peterson, Judge

 

Dakota County District Court

File No. C5-03-7215

 

Richard K. Hocking, 10657 165th Street West, Lakeville, MN  55044 (for appellant)

 

Allison F. Eklund, Jacobson Buffalo Shoessler & Magnuson, Ltd., 1360 Energy Park Drive, Suite 210, St. Paul, MN  55108 (for respondent)

 

            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

PETERSON, Judge

            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.

 

FACTS

            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.

Appellant 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 (Minn. App. Nov. 29, 2004).  On remand, based on its conclusion that appellant failed to prove the fair market value of the coupons, the district court again granted summary judgment for respondent.  This appeal followed.

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 (Minn. 2002).  We must view the evidence in the light most favorable to the party against whom judgment was granted.  Id.  But “the party resisting summary judgment must do more than rest on mere averments.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  A genuine issue for trial must be established by substantial evidence.  Id. at 69-70.  “[S]ummary judgment on a claim is mandatory against a party who fails to establish an essential element of that claim, if that party has the burden of proof, because this failure renders all other facts immaterial.”  Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994).  The party claiming damages has the burden of proving the amount of the damages.  Bonhiver v. Graff, 311 Minn. 111, 132, 248 N.W.2d 291, 304 (1976).

            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.

Affirmed.