Timothy Boldt, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0106

Timothy Boldt,
Appellant,

vs.

Mike’s Electrical Central MN, LLC, d/b/a Mike’s Electric,
Respondent.

Filed November 27, 2017
Affirmed
Halbrooks, Judge

Stearns County District Court
File No. 73-CV-15-7959

E. Curtis Roeder, Alexander M. Jadin, Finn S. Jacobsen, Roeder Smith Jadin, PLLC,
Bloomington, Minnesota (for appellant)

Mark S. Brown, Stephen M. Warner, Christopher C. Alexander, Arthur, Chapman, Kettering,
Smetak & Pikala, P.A., Minneapolis, Minnesota (for respondent)

Considered and decided by Smith, Tracy M. , Presiding Judge; Peterson, Judge; and
Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
Appellant challenges the district court’s grant of summary judgment to respondent on
the issues of real- and personal-property damages in this negligence action. We affirm.

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FACTS
Appellant Timothy Boldt hired respondent Mike’s Electrical Central MN, LLC, d/b/a
Mike’s Electric to perform electrical work on Boldt’s property, which included five acres, a
manufactured dwelling, a deta ched garage, and a storage shed. Mike’s Electric negligently
caused a fire that damaged Boldt’s dwelling and certain personal-property items inside it.
There was no damage to the other structures or the land itself.
Boldt’s homeowner’s insurer inspected the dwelling and personal property after the
fire, calculated the replacement-cost and actual-cash values of the loss, and settled with Boldt
for $237,776, paying $158,517 for the damaged dwelling and $79,259 for damaged personal
property. Instead of restoring the fire-damaged dwelling, Boldt demolished the house and the
detached garage and built a new manufactured dwelling with an attached garage.
Boldt sued Mike’s Electric for negligence , seeking real- and personal -property
damages. Both parti es moved for summary judgment. Boldt argued that Mike’s Electric
negligently caused the fire and that the fire totally destroyed the dwelling and personal
property, entitling him to $171,584 in replacement-cost damages for a new dwelling and new
personal-property items. 1 Mike’s Electric maintained that the dwelling was partially
destroyed and that Boldt was entitled to damages based on the lesser of the change in market
value of the dwelling or restoration costs, but not replacement costs.

1 Boldt added the costs to replace the damaged dwelling, utility hookups, and the foundation.
He also included personal-property items and demolition costs that were not fully covered by
his insurance settlement.

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The district court denied both motions. The district court concluded that genuine issues
of material fact existed with respect to liability and damages . With respect to dwelling
damages, the district court advised the parties that the measure of damages for tortious
destruction of property is dependent on whether the property was totally or partially
destroyed. The district court explained that if the dwelling was totally destroyed, damages
are measured by market value before the fire . But if the dwelling was partially destroyed,
damages are measured by the lesser of the change in market value or cost to restore. The
district court stated that Boldt’s argument that replacement cost is the proper damages
measure had no legal basis . The district court concluded that there was a genuine issue of
material fact as to whether the dwelling was t otally or partially destroyed. With respect to
personal-property damages, the district court concluded that, based on Boldt’s itemized list of
damaged personal property and Boldt’s deposition testimony, there were genuine issues of
material fact as to the value of the personal property.
Before trial, Mike’s Electric moved in limine to set the dwelling-damages measure at
the dwelling’s change in market value and to preclude Boldt from testifying as to property
market values. Boldt asserted that he was entitled to elect his damages measure between
market value and cost to restore the dwelling because the dwelling was partially destroyed.
The district court denied Mike’s Electric ’s motion . With respect to calculating
dwelling damages, the district court stated that the maximum recoverable damages at trial
equaled the dwelling’s market value before the fire. The district court reasoned that if the
restoration cost was materially greater than the market value before the fire, then the damages
measure was market value at the time of the fire, less the value of its remains.

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The district court noted that Boldt had changed his dwelling-damages theory after the
district court denied the cross-motions for summary judgment. In support of Boldt’s motion
for summary judgment, he alleged that the dwelling was totally destroyed. After moving for
summary judgment, Boldt maintained that the dwelling was partially destroyed , and,
therefore, he could elect his damages measure. The district court stated that Boldt was
“nominally correct” that he was entitled to elect damages if the dwelling was partially
destroyed but expressed concern that Boldt “may be using this argument in an attempt to
recover damages in material excess of the market value of the house before its destruction.”
In denying Mike’s Electric’s motion to exclude Boldt from testifying, the district court
reasoned that, in Minnesota, the owner of both real and personal property is presumed to be
acquainted with its value and may therefore testify as to its value, citing Lehman v. Hansord
Pontiac Co., 246 Minn. 1, 6, 74 N.W.2d 305, 309 ( 1955). The district court noted that any
lack of foundation in the owner’s testimony goes to weight, rather than admissibility of the
testimony, citing Jackson v. Buesgens , 290 Minn. 78, 82, 186 N.W.2d 184, 186 -87 (1971).
The district court explained that Mike’s Electric would be free to impeach Boldt’s testimony
as to the value of his property, to raise objections in the normal course of trial, and to make
arguments as to its foundation and Boldt’s credibility.
Because Mike’s Electric and Boldt stipulated pre-trial that Mike’s Electric was
negligent and that its negligence was a direct and proximate cause of Boldt’s damages, the
sole issue at trial was damages.
On the first day of the jury trial, Mike’s Electric advised the district court that it wanted
to renew its summary -judgment motion, raising concerns about Boldt’s evidence and

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proposed testimony. The district court instructed the jury that there was a factual dispute as
to whether the property was partially or totally destroyed and the amount of damages, if any,
that Bolt was entitled to. Boldt testified on direct examination, in part, about 20 guns that had
not been previously disclosed as damaged property to either his homeowner’s insurer or to
Mike’s Electric.
On the second day of trial, Mike’s Electric renewed its summary-judgment motion on
dwelling and personal -property damages . The district court granted Mike’s Electric ’s
summary-judgment motion, reasoning that Boldt had not and could not produce admissible
evidence sufficient to prove his claims for real- and personal-property damages. This appeal
follows.
D E C I S I O N
Boldt argues that the distri ct court improperly granted summary judgment because
genuine issues of material fact exist regarding real- and personal-property damages, reasoning
that (1) he can elect his damages measure , (2) he did not have the chance to testify to real-
and personal-property market values , and (3) the district court abused its discretion by
excluding Boldt’s insurance adjuster’s testimony on market values.
On an appeal from summary judgment, we review de novo whether any genuine issues
of material fact exist and whether the district court erred in applying the law. Riverview Muir
Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010). No genuine issue
of material fact for trial exists “when the nonmoving party presents evidence which merely
creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with
respect to an essential element of the nonmoving party’s case to permit reasonable persons to

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draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997). Summary
judgment will be affirmed if it can be sustained on any ground. Winkler v. Magnuson, 539
N.W.2d 821, 828 (Minn. App. 1995), review denied (Minn. Feb. 13, 1996).
I. Dwelling damages
Damages for totally destroyed real property are measured by the market value before
the loss . See Giacomino v. Tri -State Ins. Co. , 595 N.W.2d 530, 532 (Minn. App. 1999)
(applying rule to personal property) . Where real property is damaged but not totally
destroyed, “the ordinary measure of damages is the difference in value before and after the
loss, or the cost of restoration, whichever is less.” In re Commodore Hotel Fire & Explosion
Cases, 324 N.W.2d 245, 248 (Minn. 1982).
At the time that Mike’s Electric renewed its motion for summary judgment, the record
evidence included (1) documents providing Boldt’s insurance company’s replacement -cost
values and actual -cash values, (2) a construction company’s quote to replace Boldt’s fire-
damaged dwelling with a brand -new dwelling, and (3) Boldt’s deposition testimony on the
price for which Boldt believed he could have sold his entire property before the fire . This
evidence, when viewed in the light most favorable to Boldt, is not sufficiently probative with
respect to Boldt’s dwelling damages claim to permit reasonable persons to reach different
conclusions. See DLH, 566 N.W.2d at 71.
First, actual-cash-value calculations are not evidence of market value. Actual-cash
value is a “legal term of art that refers to the ‘actual loss’ sustained by the insured.” Wilcox
v. State Farm Fire & Cas. Co., 874 N.W.2d 780, 784 (Minn. 2016). Market value is defined
as the “amount that a seller may expect to obtain for merchandise, services, or securities in

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the open market,” see The American Heritage Dictionary 1075 (5th ed. 2011), and in the
property-tax context as “the usual selling price at the place where the property to which the
term is applied shall be at the time of assessment, ” see Minn. Stat. § 272.03, subd. 8 (2016)
(providing definitions for Minnesota’s property taxes statutes). Here, Boldt’s homeowner’s
insurance adjuster calculated actual-cash value based on “replacement cost less any applicable
depreciation for ag e and condition ”—not based on the price for which Bol dt expected to
receive on the open market from a willing buyer before the fire. See Commodore, 324 N.W.2d
at 248; see also Schleiff v. County of Freeborn, 231 Minn. 389, 396-97, 43 N.W.2d 265, 269-
70 (1950) (explaining that, under Minn. Stat. § 272.03 (19 48), an expert “correctly defined
market value as the value the property would sell for on that date in a sale from one not
required to sell to one not required to buy” and that a different expert’s opinion defining
market value as “replacement less deprec iation” could not alone “support the trial court’s
findings”).
Second, the record contains evidence showing the cost to replace Boldt’s damaged
dwelling with a brand -new dwelling. Boldt continues to assert on appeal that replacement
cost is a proper damages measure for real property. In support of his argument, Boldt cites
Rector, Wardens & Vestry of St. Christopher’ s Episcopal Church v. C. S. McCrossan, Inc. ,
which involved damaged trees and shrubbery. 306 Minn. 143, 146, 235 N.W.2d 609 , 611
(1975). But Rector does not apply to dwelling damages, which are measured by t he change
in market value or the cost of restoration. See Commodore, 324 N.W.2d at 248.

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On appeal, for the first time, Boldt asserts that the “property” from which his damages
should be measured includes the land, dwelling, detached garage, and storage shed —not the
dwelling alone.2 Boldt argues that the district court, in its order granting summary judgment,
resolved a disputed material fact by reasoning that “the entire property was not destroyed.”
We disagree.
Even if the property were framed as including the land, dwelling, detached garage, and
storage shed, there would still be no genuine issue of material fact as to whether the entire
property was destroyed . The evidence, when viewed in the light most favorable to Boldt,
demonstrates that the fire damaged only Boldt’s dwelling and personal property. Boldt never
contended that there was any damage to the land, detached garage, or storage shed. And while
Boldt testified at his deposition that he could have sold the entire property for $240,000 before
the fire, he was unable to provide any testimony or other evidence of the market value for the
entire property after the fire. Without both, Boldt cannot prove the change in market value.
Therefore, summary judgment would still be proper.
Citing a string of personal-property damage cases, Boldt also argues that he is entitled
to elect his measure of damages for real property between the change in market value and the
cost of restoration. See O’Connor v. Schwartz , 304 Minn. 155, 158, 229 N.W.2d 511, 513
(1975) (involving a damaged 1967 Buick); Hart v. N. Side Firestone Dealer, 235 Minn. 96,
98, 49 N.W.2d 587, 588 (1951) (involving a damaged automobile engine); Kopischke v.
Chicago, St. P., M. & O. Ry. Co., 230 Minn. 23, 30-31, 40 N.W.2d 834, 839 (1950) (involving

2 In his complaint and leading up to this appeal, Boldt defined the “property” using his mailing
address but alleged only damage to his dwelling and personal property.

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a damaged pickup truck); Waseca Sand & Gravel, Inc. v. Olson, 379 N.W.2d 592, 595 (Minn.
App. 1985) (involving a damaged cement truck). We disagree, as did the district court. But
even if the election-of-remedy rule applied to real property, summary judgment would still be
proper because Boldt did not produce sufficiently probative market-value or restoration-cost
evidence with respect to his dwelling damages claim to permit reasonable persons to reach
different conclusions. DLH, 566 N.W.2d at 71.
II. Personal-property damages
Boldt also contends summary judgment is improper on his claim for personal-property
damages. When personal property is totally destroyed, damages are measured by the market
value before the loss. Giacomino, 595 N.W.2d at 532. The district court granted summa ry
judgment to Mike’s Electric on Boldt’s claim for personal-property damages because he did
not produce admissible evidence of the market value of the damaged personal property before
the loss. The district court determined that Boldt could not testify c oncerning replacement
cost for his personal property because replacement cost was not the correct damages measure
and, to the extent that Boldt testified regarding damaged guns, he had not disclosed those
items before trial. The o nly evidence of personal-property damages came from Boldt’s
insurance company’s actual-cash value determinations and an itemized list prepared by Boldt
with the cost to replace his personal-property items. As we have previously discussed, these
values do not show the market value of Boldt’s personal-property items.
III. Boldt’s proposed market-value testimony
Boldt contends that summary judgment was improperly granted because he did not
have the opportunity to testify at trial concerning his dwelling and personal-property damages.

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A real- or personal-property owner may, as a rule, testify on property market values without
any particular foundation being laid. Vreeman v. Davis, 348 N.W.2d 756, 757 (Minn. 1984);
see Williamson v. Prasciunas , 661 N.W.2d 645, 653 (Mi nn. App. 2003) (applying rule to
personal property). But “that rule must be subject to some limitation where the opinion of the
owner of the property is wholly incredible.” Hous. & Redev. Auth. v. Zweigbaum, 257 Minn.
233, 235, 100 N.W.2d 719, 721 (1960).
In its summary -judgment order, t he district court noted that Boldt planned only on
introducing evidence at trial from his deposition testimony in which he opined on the value
of his property. The district court acknowledged that Boldt i s presumed to be qualified to
testify as to his dwelling’s value under well-established Minnesota law. But the district court
reasoned that Boldt had “essentially rebutted the presumption that he is acquainted with the
value of his house” because he testified at his deposition that he did not know “the specific
value of the house as differentiated from the rest of the property.”
For his claims of both real- and personal -property damages, Boldt intended to
introduce evidence showing the costs to replace Boldt’s dwelling and personal property with
a brand-new dwelling and brand-new personal-property items. And while Boldt testified to
the value of guns, he failed to disclose those values before trial. Because the cost to replace
Boldt’s damaged property with brand-new property is not the proper measure of market value
and because Boldt’s testimony concerned undisclosed personal property—guns—the district
court’s evidentiary rulings were a proper exercise of its discretion.

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IV. Boldt’s undisclosed expert testimony
Boldt argues that the district court abused its discretion by excluding his homeowner’s
insurance adjuster’s opinions on real - and pe rsonal-property values, contending that the
insurance adjuster was a lay witness or, alternatively, because Mike’s Electric deposed the
insurance adjuster, there was no surprise or prejudice to Mike’s Electric if he were to testify
to property values. We disagree.
The district court ruled that Boldt’s insurance adjuster could not testify to the value of
the destroyed personal prop erty because Boldt did not identify the insurance adjuster as an
expert witness before trial. In response to Boldt’s contention that the insurance adjuster would
offer a lay opinion, the district court stated that it was a “blatant argument” by Boldt to convert
his insurance adjuster’s expert opinion into a lay opinion so as to overcome his failure to
provide proper notice of the adjuster’s testimony.
A district court’s evidentiary ruling on the admissibility of an expert opinion “will not
be reversed unless it is based on an erroneous view of the law or it is an abuse of discretion.”
Gross v. Victoria Station Farms, Inc., 578 N.W.2d 757, 760 (Minn. 1998) . Boldt stated that
he intended to call his insurance adjuster to testify regarding his “background as an insurance
adjust[e]r and his experience with respect to reviewing property and looking at it after it’s
been damaged” and to provide his opinion that actual-cash value equals market value. The
district court ’s determination that the insurance adjuster’s testimony amounted to expert
opinion on market value that was precluded because it was undisclosed was well within the
district court’s discretion.

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Because the district court determined that there were no genuine issues of material fact
for trial and because Boldt did not produce any admissible evidence sufficiently probative
with respect to his dwelling or personal-property damages claim to permit reasonable persons
to reach different conclusions, we conclude that the district court properly granted summary
judgment to Mike’s Electric.
Affirmed.