Ahmed Said, 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This opinion will be unpublished and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
A18-0262

Ahmed Said,
Appellant,

vs.

Davin Branwall,
Respondent.

Filed August 6, 2018
Affirmed; motion granted in part
Hooten, Judge

Ramsey County District Court
File No. 62-CV-16-5115

Peter J. Nickitas, Peter J. Nickitas Law Office, L.L.C., Minneapolis, Minnesota (for
appellant)

Tony L. Douvier, David M. Werwie & Associates, St. Paul, Minnesota (for respondent)

Considered and decided by Schellhas, Presiding Judge; Ross, Judge; and Hooten,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellant taxi cab lessee challenges the district court ’s summary judgment
determination that he is not entitled to recover loss-of-use damages from respondent driver,
who collided with the leased taxicab wh ile it was driven by a different lessee. Appellant

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argues that he is entitled to loss -of-use damages because he ha d exclusive control of the
taxicab during the lease period. We affirm.
FACTS
Target Taxi, LLC leased a taxicab to three separate drivers, O.S., I.I., and appellant
Ahmed Said. I.I. is also the owner of Target Taxi, and Target Taxi owns the taxicab at
issue in this case. On December 3, 2014, Respondent Davin Branwall struck the rear of
the taxicab while it was being driven by O.S. Branwall admits liability in causing the
collision.
Said and Target Taxi have a written agreement, which was signed on July 30, 2014,
that details the rights and obligatio ns of each party. According to Said, “Target Taxi,
L.L.C. leased the vehicle to [him] on an exclusive weekend basis, to [O.S.] on an exclusive,
twelve-hour weekday basis, and to [I.I.], on an exclusive twelve-hour weekday basis.” As
a result of the collision, the taxicab was unavailable to be driven by Said for twelve of his
shifts.
Said brought a claim for loss -of-use damages in conciliation court, and the
conciliation court found in favor of Branwall because Said “did not have requisite
‘exclusive control’ of the cab to recover.” Said removed the case to the district court, and
the district court granted summary judgment in favor of Branwall for the same reason.
D E C I S I O N
Appellate courts “review a district court’s grant of summary judgment to determine
whether there are any genuine issues of material fact and whether the court erred in its
application of the law.” Louis v. Louis, 636 N.W.2d 314, 318 (Minn. 2001). Evidence is

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viewed “in the light most favorable to the party against whom sum mary judgment was
granted.” Senogles v. Carlson, 902 N.W.2d 38, 42 (Minn. 2017). Appellate courts “do not
weigh facts or determine the credibility of affidavits and other evidence.” Stringer v.
Minnesota Vikings Football Club, LLC , 705 N.W.2d 746, 754 ( Minn. 2005). But we are
“not required to ignore [our] conclusion that a particular piece of evidence may have no
probative value, such that reasonable persons could not draw different conclusions from
the evidence presented.” DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997). Summary
judgment decisions are reviewed de novo. Riverview Muir Doran, LLC v. JADT Dev. Grp.,
LLC, 790 N.W.2d 167, 170 (Minn. 2010).
The law is well settled that an owner of a commercial vehicle may recover loss-of-
use damages for a vehicle while it is being repaired. Williams v. Boswell, 444 N.W.2d 887,
888 (Minn. App. 1989). Minnesota has extended the ability to recover loss-of-use damages
to taxicab lessees if the lessee has exclusive control and possession of the taxicab. Id.; see
also Herzig v. Larson -Sawchak, 464 N.W.2d 754, 754 (Minn. App. 1991) (“A lessee’s
right to recover damages for lost use depends upon whether he was entitled to the exclusive
control and possession of the leased vehicle.”). “In deciding the issue of exclusive control,
this court must look to the terms of the lease agreement.” Herzig, 464 N.W.2d at 755.
The district court did not err in its conclusion that Said did not have exclusive
control and possession of the taxicab. The written agree ment between Said and Target
Taxi was not an agreement for the lease of a specific taxicab, but instead provides that Said
“may lease/bail a vehicle from any of the various taxicab owners associated with the
d/b/Target Taxi LLC and it is understood that one or more of those owners may or may not

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lease a vehicle to [Said].” Compare Herzig, 464 N.W.2d at 755–56 (holding that evidence
did not support a finding that taxicab lessee had the right to exclusive control and
possession of leased taxicab where “[t]he owner had the right to assign the taxicab to other
drivers as long as [appellant] was given a car to drive during his shift” and the lessee “was
subject to a variety of different requirements and regulations under the lease”), with
Williams, 444 N.W.2d at 888 (holding that taxicab lessees had exclusive control and
possession of taxicab where lease was for a specific taxicab, “Rainbow Taxi ### 172,” and
lease provided that “ Lessee is at all times free from the right of control and direction of
Lessor in the operation of the taxicab during the term of this lease and Lessor shall not
exercise or attempt to exercise any supervision over the service performed by Lessee”).
While the written agreement between Said and Target Taxi contains a provision
very similar to the lease agreement in Williams stating that Said is f ree from the control
and direction of Target Taxi in his operation of the taxicab, other more specific provisions
in the written agreement contradict that provision. The written agreement provides that
Said is
at all times free from right of control and direction of
Lessor/Bailor and operation of taxicab during the term of this
lease and the Lessor/Bailor shall no t exercise or attempt to
exercise any supervision over the services performed by the
Lessee/Bailee, which may include operation of the taxicab
while crossing state lines, operating on interstate or U.S.
highways, or transporting passengers to airports, rai lroad
stations, bus depots, or other interstate transportation nodes.
However, the written agreement also provides that: “Bailee agrees to accept orders
dispatched by d/b/Target Taxi LLC, through its dispatching service including the

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acceptance of passenge rs & packages which are paid for pursuant to a charge account
arrangement with d/b/a Target Taxi LLC or by the coupons.” Said is also required to
“check fluid levels at the end of each shift and return the vehicle with a full tank of
gasoline.” He also can only use the vehicle “as a taxicab in a careful manner and in
compliance with all City, State, and Federal governmental requirements including those
pertaining to the age and licensing of drivers and the disclosure of Lessor interest in the
vehicle.” Finally, if “the vehicle is damaged, the owner is bound to make reasonable effort
to repair.” (Emphasis added.)
Other than the written agreement, the only other evidence in the record that could
support that Said had exclusive possession and control over the taxicab is the affidavit of
I.I. I.I. stated that:
3. Target Taxi, LLC leased this vehicle to three separate
drivers, each of whom had total control of the vehicle during
the time of his lease.
. . . .
5. Target Taxi, LLC had a written lease and bailment
agreement with Mr. Said at the time of the collision, which I
attach and incorporate as Exhibit 1.
. . . .
b. Mr. Said had exclusive control over the vehicle
during the shift in which he drove it.
I.I.’s statements that Said had total and exclusive control of the taxicab are conclusory and
do not supply any facts to support that conclusion—other than the written agreement—and
multiple other provisions in the written agreement show that Said was not free from the
control of the lessor. See Nowicki v. Benson Properties, 402 N.W.2d 205, 208 (Minn. App.

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1987) (pointing out that conclusory statements in an affidavit are “ insufficient to defeat a
summary judgment motion”).
Said’s arguments to the contrary are unavailing. First, Said argues that a lease and
a bailment are not mutually exclusive. But whether to characterize the written agreement
as a lease, a bailment, or both, begs the question because the underlying legal issue is the
same—whether Said had exclusive control and possession of the taxicab. See Frankle v.
Twedt, 234 Minn. 42, 47, 47 N.W.2d 482, 487 (1951) (“As applied to automobiles, the
difference between a mere bailment relation and that of master and servant is the distinction
between a mere permissive use and a use which is subject to the control of the master and
connected with his affairs.”).
Second, Said argues that the written agreement does not control the analysis because
the facts on the ground are the final word.1 Even if that was the law, which is not supported
by our caselaw in loss-of-use cases for taxicab lessees,2 Said has not put in the record any

1 Said filed a purported citation to supplemental authority on this point, Branwall filed a
motion to strike, and Said filed a response. Parties are authorized to provide the court with
“pertinent and significant authorities” if those authorities “come to a party’s attention after
the party’s brief has been filed or after oral argument,” and can do so by filing a letter
stating, “without argument[,] the reasons for the supplemental citations.” Minn. R. Civ.
App. P. 128.05 (emphasis added); see also Scheffler v. City of Anoka , 890 N.W.2d 437,
452 (Minn. App. 2017), review denied (Apr. 26, 2017) . The initial submission by Said
included arguments and selectively highlighted advisory opinions, and the response
contained arguments and citations to the record, none of which are authorized by the rule.
Said’s attorney is reminded that rule 128 letters must be limited to citation of “pertinent
and significant authorities” and cannot be used to submit additional argument to the court.
Accordingly, we accept the case citations and strike the remainder of his supplemental
filings.
2 Both of our published opinions on the availability of loss -of-use damages for a taxicab
lessee analyzed the terms of the leases, see Herzig, 464 N.W.2d at 755–56; Williams, 444
N.W.2d at 888, and the cases Said cites are employment cases, not loss-of-use cases.

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evidence that is sufficient to defeat a summary judgment motion. I.I.’s affidavit recites
what one provision in the written agreement states, that Said was free from the control of
Target Taxi, but does not provide any facts supporting that conclusion —other than the
agreement. And the agreement shows that Said was not free from the control of Target
Taxi and did not have control equivalent to an owner when he was leasing the taxicab. Said
also attempts to recharacterize the plaintiff in Herzig as being an employee and not a lessee
or bailee. But Herzig never characterizes the plaintiff as an employee, nor does the opinion
discuss whether the plaintiff was an employee or a lessee in explaining why loss -of-use
damages were unavailable —the court’s analysis was that the plaintiff did not have “ the
right to exclusive control and possession of the leased taxicab.” 464 N.W.2d at 756.
Third, Said argues that Williams is the controlling case and that Williams compels
the conclusion that Said is entitled to loss -of-use damages. But there are two key
differences between this case and Williams. The lease in Williams was for a specific
taxicab, 444 N.W.2d at 888, while the written agreement here was that Said “may lease/bail
a vehicle from any of the various taxicab owners associated with the d/b/Target Taxi LLC
and it is understood that one or more of those owners may or may not lease a vehicle to
me.” (Emphasis added.) And while both the lease in Williams and the written agreement
here contain similar language about the lessee being free from the control of the lessor, as
argued by Branwall, the written agreement here contradicts that statement in several ways
and shows that Said was not free from the control of Target Taxi. This case is much closer
to Herzig than Williams and leads to the conclusion that Said is not entitled to loss -of-use
damages.

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Said also claims that because I.I. recovered loss -of-use damages, even though I.I.
was not driving the taxicab at the time of the accident, he should also recover. But I.I.
owns Target Taxi and Target Taxi owns the taxicab, and owners of commercial vehicles
are entitled to loss-of-use damages. See Williams, 444 N.W.2d at 888. And I.I. signed the
release with Branwall’s insurance company as CEO of Target Taxi. While Said is correct
that a LLC has a separate legal existence from its owners, see generally Minn. Stat.
§ 3 22B.20 (2016), I.I.’s decision to disregard that separate legal existence and accept
payment directly for loss-of-use damages owed to Target Taxi is not evidence that I.I. was
compensated as a lessee. And even if we assume that I.I. was compensated as a l essee,
Said does not explain why that legally requires Branwall to compensate him for his loss -
of-use damages.
Affirmed; motion granted in part.