                       This opinion will be unpublished and
                       may not be cited except as provided by
                       Minn. Stat. § 480A.08, subd. 3 (2014).

                            STATE OF MINNESOTA
                            IN COURT OF APPEALS
                                  A14-1507

                                 Wayne Earl Dahl,
                                   Appellant,

                                        vs.

                           Stephen Sean Cummings, et al.,
                                   Respondents.

                               Filed March 30, 2015
                                     Affirmed
                               Stoneburner, Judge

                            Carver County District Court
                              File No. 10-CV-13-682


Randall D. B. Tigue, Randall Tigue Law Office, P.A., Golden Valley, Minnesota (for
appellant)

Ned E. Ostenso, Merrigan, Brandt, Ostenso & Cambre, P.A., Hopkins, Minnesota (for
respondents)


      Considered and decided by Reyes, Presiding Judge; Hudson, Judge; and

Stoneburner, Judge.





 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

STONEBURNER, Judge

       Appellant, owner of collectible vehicles that were destroyed in a warehouse fire

where the vehicles were stored, challenges the dismissal, after a court trial, of his action

against the storage facility and its owner for conversion and negligence. We affirm.

                                         FACTS

       In early 2000, appellant Wayne Earl Dahl and respondent Stephen Sean

Cummings discussed Dahl’s storage of property, including collectible vehicles and a

snowmobile trailer, on property in Sibley County owned by Cummings. At the time,

there were three buildings on the property, but only one of the buildings was available

and suitable for storage. Dahl and Cummings did not discuss or agree on specific terms

and conditions of storage before Dahl placed the vehicles, with keys, in the building.

       The district court credited Dahl’s testimony that he gave Cummings $1,000 at the

time the vehicles were stored, but the district court found that this payment was a gratuity

rather than payment for storage because Dahl and Cummings had not agreed to any terms

of storage. Dahl did not give Cummings any other money for storage.

       The district court found that Dahl had complete and unfettered access to his

property at all times. Although Dahl rarely visited the storage facility, he removed and

replaced stored property without any interaction with Cummings.

       In April 2001, Cummings established respondent Shamrock Storage, L.L.C.

(Shamrock) and leased the storage buildings to Shamrock for Shamrock to operate as a




                                             2
storage business. Dahl was unaware of Shamrock’s creation until the initiation of this

action.

          Shamrock renovated the largest building on the site and, in 2003, Dahl’s vehicles

were moved into that building without notice to or consent by Dahl. The district court

credited Cummings’ testimony that when Dahl was at the warehouse in 2007 he saw his

vehicles, which, according to Cummings, were parked right next to Dahl’s snowmobile

trailer in the large building. Dahl did not express any concern over the location of their

storage or the fact that they had been moved.

          In July 2008, a Shamrock employee was using a torch to perform renovations on

the roof of the large storage building. Sparks ignited material in the warehouse, and the

fire spread rapidly, totally destroying the building and all property inside of it. Shamrock

sold the iron frames from Dahl’s vehicles as scrap metal and retained the proceeds.

          Dahl learned about the destruction of his property in 2012. Dahl sued Cummings

and Shamrock alleging breach of contract, conversion, and negligence. After a bench

trial, the district court found that: (1) no contract existed between the parties;

(2) Shamrock possessed Dahl’s vehicles as a bailee, with an obligation to take reasonable

care of them and return them to Dahl on request; (3) Dahl failed to prove that Shamrock

converted the vehicles; (4) Dahl established conversion against Shamrock with regard to

the scrap metal, but lack of evidence on the value of the metal prevents recovery on that

claim; and (5) Shamrock rebutted any presumption of negligence that arose under the

bailment or the theory of res ipsa loquitor. The district court entered judgment for




                                              3
Cummings and Shamrock, dismissing all of Dahl’s claims. This appeal, challenging

dismissal of claims for conversion and negligence, followed.

                                     DECISION

       1.      Standard of review

       On appeal from the decision of a district court sitting without a jury, this court

reviews whether the evidence sustains the findings of fact and whether the findings of

fact sustain the conclusions of law and judgment. Roberts v. Brunswick Corp., 783

N.W.2d 226, 230 (Minn. App. 2010), review denied (Minn. Aug. 24, 2010). We will not

set aside a finding of fact unless the finding is clearly erroneous, giving due regard to the

district court’s credibility findings and viewing the evidence in the light most favorable to

the district court’s findings. Minn. R. Civ. P. 52.01; In re Pamela Andreas Stisser

Grantor Trust, 818 N.W.2d 495, 507 (Minn. 2012).             Findings of fact are clearly

erroneous when we are “left with the definite and firm conviction that a mistake has been

made.”      Rasmussen v. Two Harbors Fish Co., 832 N.W.2d 790, 797 (Minn. 2013)

(quotation omitted).

       2.      Conversion

       Conversion is the willful, unjustified interference with another’s personal property

that deprives the owner of use and possession. DLH, Inc. v. Russ, 566 N.W.2d 60, 71

(Minn. 1997). “Any distinct act of dominion wrongfully exerted over one’s property, in

denial of his right, or inconsistent with it, is a conversion.” McDonald v. Bayha, 93

Minn. 139, 141, 100 N.W. 679, 680 (1904).




                                             4
        Dahl argues that a bailee’s movement of bailed goods without the owner’s

knowledge or consent constitutes conversion as a matter of law, citing McCurdy v.

Wallblom Furniture & Carpet Co., 94 Minn. 326, 102 N.W. 873 (1905) (stating that a

bailee may be liable for the destruction of goods if the bailee removes the goods from an

agreed-to place to another place of storage without notice or consent of the bailor).

McCurdy is based on cases holding that “appropriating an article in bailment to a

different use than that agreed on is a conversion.” Id. at 329, 102 N.W. at 874.

        Dahl’s reliance on McCurdy rests on his assertion that “it is clear that the storage

location was an essential element of the bailment,” an apparent argument that the district

court clearly erred by finding that the parties had no agreement that the vehicles would be

stored only in the building in which they were originally placed. But the district court

specifically discredited Dahl’s testimony that he expressed concern to Cummings about

the safety of storing his vehicles in a different building, noting that at the time of the

initial storage, only one building was suitable for storage. And the district court credited

Cummings’ testimony that, in 2007, Dahl saw that his vehicles were now stored in the

large building and did not express any concern about the safety of storage in that

building. Because we defer to the district court’s credibility determinations, the record

supports the district court’s finding that Dahl had no agreement with Cummings or

Shamrock that his vehicles would remain in the building in which they were first placed.

McCurdy is therefore distinguishable and does not apply to the circumstances of this

case.   Because there was no agreement restricting storage of Dahl’s vehicles to a




                                             5
particular building, the district court’s findings support its conclusion that moving Dahl’s

vehicles to the larger building did not constitute conversion.1

       3.     Negligence

       Dahl successfully argued to the district court that under the law of bailment, and

even in the absence of bailment, under the doctrine of res ipsa loquitur, Cummings and

Shamrock had the burden to prove absence of negligence to defeat Dahl’s claim for

damages under a negligence theory. The district court imposed that burden under both

theories and found it satisfied. On appeal, Dahl appears to assert that this finding is

clearly erroneous.

       Dahl asserts that “the only evidence as to the origin of the fire” is the report of

the state fire marshal from which Dahl cites several findings that, he argues, “plainly

indicate negligence.”

       But Troy Johnson, the welder who was in charge of planning and implementing

the work that resulted in the fire, explained to the fire marshal what occurred and how he

responded. And Cummings testified about the work performed, precautions he and

Johnson took to prevent the work from starting a fire, and his attempts to remove Dahl’s

1
   The district court found Shamrock liable in conversion for selling Dahl’s destroyed
vehicles for scrap and keeping the proceeds. But because there was no evidence of the
value of the scrap, the district court dismissed this claim for failure to prove damages. In
a footnote, Dahl notes that the district court “gave no reason for not at least awarding
[Dahl] the $1,800 [Shamrock] received from the sale of the scrap metal.” But the district
court also noted the lack of evidence of the cost of marketing the scrap and lack of
evidence of the rental value of the space used to store the vehicle, which could have been
offsets. Because Dahl has not formally raised this issue on appeal, we decline to address
it further. See Melina v. Chaplin, 327 N.W.2d 19, 20 (Minn. 1982) (stating that issues
not briefed on appeal are waived).

                                             6
vehicles after the fire started.   The district court made specific findings about the

“reasonable and prudent” actions of Johnson and Shamrock “in carrying out any duties

owed to Dahl.” That this record might support findings other than those made by the

district court does not show that the district court’s findings are clearly erroneous. See

Vangsness v. Vangsness, 607 N.W.2d 468, 474 (Minn. App. 2000). Because the record

supports the district court’s findings that Cummings and Shamrock rebutted Dahl’s claim

of negligence, the district court did not err by concluding that Dahl failed to prove his

negligence claim.

      Affirmed.




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