Michael Gavigan, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1517

Michael Gavigan,
Respondent,

vs.

Import Auto Sales LLC
d/b/a Import Auto Sales,
Appellant,

Quality Imports, Inc., et al.,
Defendants.

Filed June 17, 2019
Affirmed
Worke, Judge

Hennepin County District Court
File No. 27-CV-17-8503

Michael Gavigan, Minneapolis, Minnesota (pro se respondent)

Kirk M. Anderson, Anderson Law Firm, PLLC, Minneapolis, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Florey , Judge; and Cochran,
Judge.
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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant-seller argues that the district court clearly erred in awarding damages to
respondent-buyer that were speculative, and therefore unrecoverable. We affirm.
FACTS
On May 25, 2011, respondent Michael Gavigan purchased a 2008 Honda Civic (the
car) from appellant Import Auto Sales LLC (Import) for $13,440.61. Gavigan also paid
$873.64 in sales tax, $1,238 for a service contract, and $327.75 in fees. Gavigan paid
$6,000 in cash and financed the remaining $9,900, which added an additional $2,006.40 in
finance charges.
The Carfax vehicle history report provided to Gavigan at the time of purchase did
not contain any record of the car being involved in an accident, but a Carfax report printed
on May 23, 2017, indicates that the car was involved in a collision with another vehicle on
December 4, 2010. Gavigan asked the salesperson at the time of purchase if there had ever
been collision damage to the car, and the salesperson told him no.
On January 5, 2012, the credit union financing Gavigan’s purchase sent him a letter
informing him that they had not received the title to the car. Gavigan has yet to acquire
title to the car. Gavigan testified that without the title, the car w as essentially valueless
because it could not be resold.
Based upon the statements of three mechanics performing separate repairs to the
car, Gavigan came to suspect that it had been involved in a prior, undisclosed, front-end
collision. On September 10, 2017, Gavigan sued Import and two other defendants, seeking
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damages based on Import’s misrepresentations and an order requiring I mport to transfer
title, among other causes of action. The matter was tried to the district court on May 14,
2018. Import did not present any evidence at trial.
Gavigan testified that had the 2010 accident been disclosed to him at the time of
purchase, he would have paid substantially less for the car. Based upon work Gavigan had
performed to repair body damage to the front of the car caused by two unrelated accidents
subsequent to his purchase, he estimated the car was worth $11,075.01 less than his total
purchase price.
Based solely on the testimony of Gavigan and his supporting exhibits, the district
court granted Gavigan judgment for breach of contract and negligent misrepresentation in
the amount of $12,133.65, plus additional costs necessary to obtain title. The district court
dismissed his other causes of action, with the exception of his claim for transfer of title,
which the district court addressed via a separate order. This appeal followed.
D E C I S I O N
Import argues that the district court committed clear error in awarding Gavigan
damages, because Gavigan’s asserted damages were speculative and thus unrecoverable.
“[W]e review the district court’s factual findings for clear error.” Rasmussen v. Two
Harbors Fish Co., 832 N.W.2d 790, 797 (Minn. 2013). “[W]hen determining whether a
finding of fact is clearly erroneous, we view the evidence in the light most favorable to the
verdict. To conclude that findings of fact are clearly erroneous we must be left with the
definite and firm conviction that a mistake has been made.” Id. (citation and quotations
omitted).
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Gavigan testified that if the prior collision had been disclosed to him at the time, he
would have only paid $6,000 for the car, or $7,440.61 1 less than the purchase price.
Gavigan attempted to substantiate his estimation of the diminution of value with invoices
for repairs both related and unrelated to the undisclosed collision. The district court found
that repairs to a loose engine mount, a plastic shield and oil pan, and the seatbelt tensioner
and collision sensor, totaling $1,351.40, were directly related to the undisclosed collision.
The district court found that invoices for body repairs to the front end of the car from two
unrelated collisions, totaling $5,577.94, “provide some context for the cost of a portion of
the repairs that would otherwise be required to bring the [v]ehicle up to the condition in
which it was promised.” The district court also included an additional $1,000 estimate to
repair the hood in its calculations.
Based upon his estimation that the car was only worth $6,000 at the time of
purchase, Gavigan testified that he would have foregone the $1,238 service contract, would
have paid cash and thus avoided the $2,006.40 in finance charges, and would have paid
$548.64 less in sales tax based upon the reduced purchase price. Gavigan also testified
that he estimated it would cost $1,000 to obtain title. Based upon this evidence, the district
court awarded Gavigan $12,133.65 in damages for breach of contract and negligent
misrepresentation.

1 The district court incorrectly calculated the difference between the original $13,440.61
purchase price and the estimated $6,000 value at time of purchase to be $7,340.61, and
included that amount in its final award of $12,133.65.
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Because Gavigan did not introduce any evidence of the fair market value of a 2008
Honda Civic with collision damage, other than his own opinion, Import asserts the district
court’s award was clearly erroneous because the damages were speculative. “[D]amages
which are speculative, remote, or conjectural are not recoverable. The law does not require
mathematical precision . . . but only proof to a reasonable, although not necessarily
absolute, certainty.” Leoni v. Bemis Co., 255 N.W.2d 824, 826 (Minn. 1977) (quotations
and citation omitted). Despite the speculative nature of Gavigan’s assertions regarding the
car’s value at the time of purchase, two principles support the district court’s damage
award.
First, “the owner of [personal] property . . . is presumptively acquainted with its
value and may testify as to its value.” Lehman v. Hansord Pontiac Co., 74 N.W.2d 305,
309 (Minn. 1955). This rule is not without qualification. “[I]f there is an apparent lack of
knowledge on the part of the owner as to value of his property, the same goes to the weight
of the testimony given but not to the competency of that testimony.” Id. at 309-10. The
facts of Lehman are directly analogous to the present matter.
In Lehman, the plaintiff purchased a vehicle that the salesperson represented to be
a 1951 Pontiac, but in fact turned out to be a 1950 Pontiac. The plaintiff then sued to
recover the difference in value between the car he purchased and the price he paid based
upon the salesperson’s misrepresentations. Id. at 308. The supreme court ordered a new
trial based on the district court’s erroneous exclusion of the owner’s testimony regarding
his estimation of the value of the car he purchased. Id. at 312. Here, Gavigan, as the owner
of the car, was competent to testify to its value, and it was for the district court to weigh
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the credibility of that testimony. See Minn. R. Civ. P. 52.01 (“due regard shall be given to
the opportunity of the [district court] to judge the credibility of the witnesses.”).
Second, Import did not present any evidence in opposition to Gavigan’s estimation
of the car’s value at the time of purchase. “[O]rdinarily, when a litigant is willing to gamble
on the outcome of a lawsuit and sit silent when he had an opportunity to present evidence,
he should be bound by the result. . . .” Vreeman v. Davis, 348 N.W.2d 756, 758 (Minn.
1984) (quoting H.P. Droher & Sons v. Toushin, 85 N.W.2d 273, 282 (Minn. 1957)). Here,
Import took a gamble and lost.
In awarding Gavigan damages for breach of contract and negligent
misrepresentation, the district court specifically found that a preponderance of the evidence
supported Gavigan’s testimony of the diminution in value of his car, especially in light of
Import’s failure to present any evidence in opposition to Gavigan’s testimony and
supporting exhibits. Because Gavigan was competent to testify to his estimation of his
own car’s value, and because Import failed to introduce any evidence in opposition to
Gavigan’s valuation, the district court’s damage award was not clearly erroneous.
Affirmed.