This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-98-1833

Tang Say Xiong,

Appellant,

vs.

Midas,

Respondent.

Filed March 9, 1999

Affirmed

Klaphake, Judge

Hennepin County District Court

File No. 98-002116

Hlee Mai Ly, 386 N. Wabasha St., Ste. 600, St. Paul, MN 55102 (for appellant)

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.

U N P U B L I S H E D O P I N I O N

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.

D E C I S I O N

I.

In actions tried without a jury, a motion for amended findings or a new trial is a prerequisite to challenging a court's failure to make factual findings on a particular issue. Antonson v. Ekvall, 289 Minn. 536, 539, 186 N.W.2d 187, 189 (1971). A party may not challenge for the first time on appeal a trial court's failure to make appropriate findings. See Beasley v. Medin, 479 N.W.2d 95, 99 (Minn. App. 1992).

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).

II.

In the absence of a bailment relationship, a vehicle owner must show specific acts of negligence by a garage owner. Id. (judgment affirmed in favor of long-term parking lot owner, absent evidence to establish bailment or specific negligence allegations). Xiong argues that Midas was negligent because it offered no explanation for the disappearance of the van, and it failed to properly monitor activities occurring in its own parking lot. In particular, Xiong notes that although the manager acknowledged that he was responsible for vehicle tows, he was unaware of the tow truck that absconded with Xiong's van. Xiong further emphasizes that the only Midas employee to witness the theft did nothing to stop it.

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").

Affirmed.