This opinion will be unpublished and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
                                     A14-1828

                                   Veronica Anczarski,
                                       Appellant,

                                            vs.

                                     Rick Palm, et al.,
                                      Respondents.

                                 Filed November 9, 2015
                                        Affirmed
                                     Chutich, Judge

                              Hennepin County District Court
                                 File No. 27-CO-13-6942

Veronica Anczarski, Minneapolis, Minnesota (pro se appellant)

Bradley Crawford Mann, Elliot Law Offices, P.A., Minneapolis, Minnesota (for
respondents)


         Considered and decided by Chutich, Presiding Judge; Ross, Judge; and Larkin,

Judge.

                         UNPUBLISHED OPINION

CHUTICH, Judge

         Appellant Veronica Anczarski, appearing on her own behalf, appeals the dismissal

with prejudice of her complaint alleging negligent misrepresentation against respondents
Rick Palm and Palm Trading Co. Because the record supports the district court’s finding

that respondents did not intentionally or recklessly make a misrepresentation, we affirm.

                                         FACTS

      Veronica Anczarski was the winning bidder in an online auction for a commercial

cooking range sold by Rick Palm and Palm Trading Co. (together, Palm). Anczarski

agrees that in making her purchase through USPowerBid she was required to and did

check a box agreeing to abide by the terms and conditions of the auction.

      The auction’s terms and conditions explicitly provided:

             Bidders shall examine or inspect items prior to the day of the
             auction if this is available. ALL ITEMS ARE SOLD AS IS,
             WHERE IS AND WITH ALL FAULTS.                      NEITHER
             SELLER NOR USPowerBid MAKES ANY WARRANTY,
             EXPRESS OR IMPLIED, AS TO THE NATURE,
             QUALITY, VALUE OR CONDITION OF ANY ASSET.
             USPowerBid AND SELLER EXPRESSLY DISCLAIM
             ANY WARRANTY OF MERCHANTABILITY, FITNESS
             FOR      A     PARTICULAR         PURPOSE        OR     NON-
             INFRINGEMENT.
             ...

             Buyer acknowledges that it has had the opportunity to inspect
             all assets prior to tendering its bid and waives any claims
             against Auctioneer and/or seller relating to asset photographs
             or descriptions.
             ...

             USPowerBid and the seller assume no responsibility for, and
             make no representations or warranties concerning
             descriptions of assets contained in marketing materials for the
             auction.    It is the bidders’ obligation to verify such
             descriptions prior to the auction.




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         At trial, Anczarski did not dispute the content of the terms and conditions nor her

consent to those terms. She also acknowledged that she was an experienced USPowerBid

buyer.

         Dimensions of the range were listed on the USPowerBid website as 60.5 inches by

32 inches by 36 inches. Anczarski disputed the accuracy of these measurements and

alleged that Palm deliberately misstated the dimensions so that prospective buyers would

believe the range would fit through a standard doorway.            Palm claimed that the

measurements were accurate as to the main body of the range and that components such

as legs, motor, and shelving could be detached to fit the range through a standard

doorway.

         The parties agree that Palm advertised that the range was available for inspection

on four different dates before the close of the auction and that Anczarski did not

physically inspect the range before purchase or delivery.

         Two days after the close of the auction, the range was delivered from Palm’s

warehouse to Anczarski’s bakery by Anczarski’s contractor, Master Transfer (Master).

Upon arrival, the Master employee could not fit the range through the bakery’s doorway.

Anczarski informed Palm by phone that Master would be returning the range to Palm’s

warehouse that same evening; Palm agreed to hold it for the night and redeliver it the

next day and help Anczarski move it through her doorway. The Master employee who

delivered the range could not return it because his shift ended, so Master dispatched

another driver to the bakery.




                                              3
       In the meantime, the range was left unattended outside the bakery. Unfortunately,

before the second driver arrived, the range was vandalized. The stolen materials and

fixtures were collectively valued higher than the purchase payment of the range at

auction.

       At trial before the district court, Anczarski sought return of the purchase payment

plus other costs, based on a theory of negligent misrepresentation by Palm. Palm sought

dismissal of Anczarski’s complaint and affirmatively sought damages for the cost of

restoring the range to working condition.

       The district court concluded that a valid contract was formed between Anczarski

and Palm and that the contract was fully performed when the range was initially placed in

the Master vehicle for delivery from Palm’s warehouse to the bakery. The district court

also determined that the range was delivered as conforming goods and that, at the time of

the vandalism, Anczarski owned the range and was solely liable for all risk of loss.

Additionally, the district court found that the dimensions listed on USPowerBid were not

false as “general dimensions” and that Anczarski had the obligation to inspect the range

before buying it.

       The district court held that Palm should retain the range’s purchase payment, but

denied Palm’s claim for damages. Anczarski’s claims were dismissed with prejudice.

She now appeals.

                                    DECISION

       Anczarski claims that the district court erred in dismissing her claim of negligent

misrepresentation against Palm. We disagree.


                                            4
       In reviewing an appeal from a bench trial, we give great deference to the district

court’s factual findings and do not set them aside unless clearly erroneous. Rasmussen v.

Two Harbors Fish Co., 

 (Minn. 2013). Findings of fact are clearly

erroneous only if the reviewing court is “left with the definite and firm conviction that a

mistake has been made.”          Gjovik v. Strope, 

 (Minn. 1987).

Additionally, “due regard shall be given to the opportunity of the trial court to judge the

credibility of the witnesses.” Minn. R. Civ. P. 52.01. Legal questions are reviewed de

novo. Rasmussen, 

.

       The Minnesota statutes place limits on common-law misrepresentation claims,

providing that “[a] buyer may not bring a common law misrepresentation claim against a

seller relating to the goods sold or leased unless the misrepresentation was made

intentionally or recklessly.” 

, subd. 4 (2014).

       Applying these principles here, we conclude that the record supports the district

court’s finding that Palm’s representation concerning the range’s dimensions was not

false and that Palm therefore did not intentionally or recklessly misrepresent those

dimensions.    Palm provided testimonial and documentary evidence that the listed

measurements were generally accurate as to the body of the range and that various

components could be removed to fit the range into a vehicle or through a doorway.

Accordingly,    the   district    court   properly   dismissed    Anczarski’s   negligent-

misrepresentation claim and ruled that Anczarski is not entitled to recover any damages

from Palm.




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       Anczarski further argues that USPowerBid’s terms and conditions were voidable

because they contained invalid exculpatory clauses that purported to shield Palm from

liability for willful and wanton negligence, and intentional torts. Anczarski did not raise

this theory before the district court. An appellate court must consider only issues that

were presented to and considered by the trial court, and a party may not raise a new

theory on an issue litigated at the district court. Thiele v. Stich, 

(Minn. 1988).

       Even if we addressed the substance of this argument, however, it lacks merit. To

be sure, an exculpatory clause is construed against the party that seeks to benefit from it

and may be unenforceable if it “purports to release the benefited party from liability for

intentional, willful or wanton acts.” Yang v. Voyagaire Houseboats, Inc., 

 (Minn. 2005). But here, given the district court’s findings about the propriety of

Palm’s conduct, nothing in the record shows any intentional, willful, or wanton act that

would support this claim.

       Affirmed.




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