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James McCoolidge, appellant, 

v. Daniel Oyvetsky et al., 

appellees.

___ N.W.2d ___

Filed March 4, 2016. No. S-14-1135.

1. Trial: Judgments: Appeal and Error. In a bench trial of a law action, 

the trial court’s factual findings have the effect of a jury verdict, which 

an appellate court will not disturb unless clearly wrong.

2. Judgments: Appeal and Error. An appellate court independently 

reviews questions of law.

3. Uniform Commercial Code: Breach of Warranty. The seller breaches 

the warranty of title in Neb. U.C.C. § 2-312 (Reissue 2001) if there is 

a substantial cloud or shadow over the title, even if no third party has 

come forward with a superior claim.

4. ____: ____. A seller breaches the warranty of title in Neb. U.C.C. 

§ 2-312 (Reissue 2001) by delivering a defective certificate of title to 

the buyer.

5. Uniform Commercial Code: Breach of Warranty: Damages: Proof. 

Buyers asserting a breach of warranty under the Uniform Commercial 

Code must not only prove the warranty and breach thereof, but also the 

cause of their loss and the extent of their damages.

6. ____: ____: ____: ____. Buyers asserting a breach of warranty under 

the Uniform Commercial Code do not have to prove damages with 

mathematical certainty, but the evidence must be sufficient to allow 

the trier of fact to estimate the actual damages with reasonable 

certainty.

7. Uniform Commercial Code: Damages. If the buyer accepts defective goods, damages are measured under Neb. U.C.C. § 2-714 (Reissue 

2001).

8. Uniform Commercial Code: Damages: Proof. The existence of “special circumstances” under Neb. U.C.C. § 2-714 (Reissue 2001) is not a 

Nebraska Supreme Court Online Library

www.nebraska.gov/courts/epub/

03/04/2016 09:16 AM CST
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precondition to a buyer’s recovery of incidental and consequential damages under Neb. U.C.C. § 2-715 (Reissue 2001).

9. Motor Vehicles: Damages. The reasonable value of the loss of use of 

a motor vehicle is generally the fair rental value of a like vehicle for 

a reasonable length of time or the amount actually paid, whichever 

is less.

10. Motor Vehicles: Breach of Warranty: Damages: Time. The period 

for which the buyer of a motor vehicle can recover loss of use damages 

should generally correspond to the length of time that the buyer would 

have used the vehicle but for the breach of warranty.

Appeal from the District Court for Douglas County: Shelly

R. Stratman, Judge. Affirmed.

Thomas M. White, C. Thomas White, and Amy S. Jorgensen, 

of White & Jorgensen, for appellant.

Terry J. Grennan, of Cassem, Tierney, Adams, Gotch & 

Douglas, for appellee Travelers Casualty and Surety Company 

of America.

Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel, 

and Stacy, JJ.

Connolly, J.

SUMMARY

James McCoolidge bought a used automobile over the 

Internet and had trouble registering the certificate of title 

in Nebraska. He sued the man with whom he directly dealt, 

a dealership in Tennessee, and an insurer that had issued a 

surety bond to the dealership. The trial court concluded that 

although the sellers initially breached the warranty of title, 

McCoolidge had not proved the damages he suffered from 

the delay in obtaining good title. McCoolidge appeals, arguing that even if he could register a certificate of title, other 

problems remained. We conclude that McCoolidge did not 

prove his damages and therefore affirm the court’s judgment 

for the defendants.
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BACKGROUND

McCoolidge’s Employment

Before multiple sclerosis forced him to retire, McCoolidge 

worked as an automobile mechanic and salesperson. He was a 

“part owner” of Cars on Keystone, a used car dealership, and 

held a sales license in that capacity.

Thomas Monteith, an accountant, testified that he was the 

“owner” of Cars on Keystone, which was the trade name of 

Classic Auto Rental Service, LLC. Monteith explained that 

McCoolidge had a “profit interest” in the dealership, meaning 

that “if it makes money, he gets a percentage, if it loses, I get 

the loss since I am funding the company.” The articles of organization for Classic Auto Rental Service identify two members: 

McCoolidge and Monteith Brothers, Inc.

Monteith did not take an active role in Cars on Keystone. 

He said that McCoolidge took “care of anything” and that 

the “only thing I see is the bank statement.” No one else was 

involved in the business. Cars on Keystone was defunct by the 

time of trial.

Purchase of the Automobile

Because of the progressive nature of multiple sclerosis, 

McCoolidge wanted a vehicle that could accommodate a person in a wheelchair. He found a vehicle “sitting at a salvage 

yard” with a “motorized ramp and other accessories necessary 

to convert a Honda Element into a handicapped-accessible 

vehicle.” He had the opportunity to remove the equipment at 

no cost. Having found the equipment, McCoolidge searched for 

a suitable vehicle in which to install it.

In March 2011, McCoolidge saw a 2008 Honda Element 

with structural damage (Element) advertised in an online auction. He contacted the seller, who identified himself as Daniel 

Oyvetsky. According to McCoolidge, Oyvetsky said that he 

was selling the Element for Car and Truck Center L.L.C., a 

licensed dealer in Nashville, Tennessee. McCoolidge verified 
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Oyvetsky’s representation by calling Car and Truck Center and 

speaking with Alexander Davidoff.

When the auction closed without a buyer, Oyvetsky reached 

out to McCoolidge. McCoolidge agreed to buy the Element for 

$7,500 and transferred the purchase price to a PayPal account 

associated with Oyvetsky or Car and Truck Center.

McCoolidge instructed Oyvetsky and Car and Truck Center 

to assign the title to Cars on Keystone. McCoolidge explained 

that he wanted the title assigned to the dealership because it 

would give him more time to register the certificate of title in 

Nebraska and because he wanted to use the dealership’s facilities to repair the Element. He expected that Cars on Keystone 

would transfer title to him once the repairs were finished.

About a week after the purchase, McCoolidge received 

the Element followed by a certificate of title. McCoolidge, 

however, had trouble registering the certificate. He spoke to 

Oyvetsky, who was unable or unwilling to solve the problem. 

McCoolidge said he also spoke with Davidoff, who “didn’t 

want anything to do with it.”

In July 2011, McCoolidge filed a complaint against Car and 

Truck Center with the Tennessee Motor Vehicle Commission. 

He told the commission that Car and Truck Center had not 

provided him with a valid certificate of title. McCoolidge 

acknowledged that he received a certificate of title which “my 

DMV said . . . might be ok,” but he was “not comfortable 

with might.”

In an affidavit, Davidoff stated that he bought the Element 

from “W. McInnis” in September 2010 and asked Oyvetsky to 

advertise the vehicle. Davidoff said he shipped the Element 

to McCoolidge, but a problem arose because it “was title[d] 

to [a] Lease Company and not McInnis.” Davidoff stated that 

McCoolidge had “pulled back 4000.00 of the 7500.00 paid” and 

that Davidoff would not send the correct certificate of title to 

McCoolidge until he returned the money.

At trial, Davidoff denied buying or selling the Element. 

Rather, he “sen[t] title to Car of Keystone in the favor and the 
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request for . . . Oyvetsky.” Davidoff said he told the Tennessee 

Motor Vehicle Commission that “the previous owner of this 

Element came from a leasing company and did not transfer 

the vehicle to his name.” He said that the “previous owner” 

was “Veritas Video.” Davidoff said that the “owner” when 

McCoolidge bought the Element was Igor Tavakalov.

Tavakalov testified that he “bought [the Element], but never 

registered it on my name.” He said the “previous owner” was 

“McGinnis and Veritas,” with “McGinnis” being a natural person who owned a “production company” called Veritas.

Certificates of Title

There are numerous certificates of the title issued by the 

State of Tennessee in the record, some of which appear to be 

copies of the same certificate. The dates on which McCoolidge 

received the various certificates are less than clear.

One of the certificates states that title is vested in “HONDA 

LEASE TRUST.” On the reverse, Honda Lease Trust assigned 

title to “VERITAS F AND VIDEO, WILLIAM W MCINNES,” 

who reassigned title to Car and Truck Center, which reassigned 

title to Cars on Keystone.

Other certificates state that title is vested in “VERITAS F 

AND VIDEO” and “WILLIAM W MCINNIS,” with various 

permutations of assignments and reassignments on the reverse. 

For example, on the reverse of one certificate, “Veritas Film 

& Video” assigned title to Car and Truck Center, which reassigned title to Cars on Keystone. On the reverse of another, 

“William W. McInnes” assigned title to Cars on Keystone. On 

the reverse of yet another certificate, “Veritas F & Video” and 

“William W. McInnes” assigned title to Cars on Keystone.

McCoolidge testified that he never received “clear” or 

“usable” title. He believed he needed a certificate that “showed 

transfer from the lessor and Honda into Car and Truck, Inc. 

and then to Cars on Keystone.” Later, he testified that the 

title should be “declared up from Veritas Video to Cars and 

Truck and then to Cars on Keystone.” Later yet, McCoolidge 
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testified that the problem, as he saw it, was that title was “still 

assigned” to Veritas Video, an entity with which McCoolidge 

had no relationship. But he had “no idea” whether Veritas 

Video was “one of the reasons for kind of the missing link in 

the chain of title.” McCoolidge said he never received a bill 

of sale, although, when asked about “Cars on Keystone on a 

bill of sale or an actual purchase agreement,” he said “[t]here 

was one tendered but then thrown away because there was no 

title . . . .”

In his deposition, McCoolidge testified that he had received 

a certificate of title that he could have registered in Nebraska. 

Shown one of the certificates and asked if it was “good title,” 

McCoolidge answered: “It’s — according to Douglas County, 

with a valid vehicle inspection, which the [vehicle identification number] matches the title, it would transfer into the 

State of Nebraska as a valid Nebraska title.” He had shown 

the certificate to the Nebraska Department of Motor Vehicles, 

and “[t]hey said it looks to be transferrable in its form.” But 

McCoolidge said he would not register the title “until this is 

settled,” because he had “no idea which way this is going to 

go.” His attorney explained that he could “get a title issued,” 

but that he preferred to “present it to the court and have the 

court tell us what should be done.”

McCoolidge reviewed his deposition testimony during his 

cross-examination at trial. He said: “I’ve seen several titles in 

reference to this, and I don’t remember which title. But if I was 

presented with a title that was transferable, it’s possible. If it 

was transferable, I told you the truth. It would be transferable.” 

But on redirect, McCoolidge said the Department of Motor 

Vehicles rejected the certificate of title that the attorney representing the insurer “was talking to [McCoolidge] about earlier 

that he said, as far as you know, you thought it was good.”

Damages

McCoolidge testified that he repaired the structural damage to the Element “almost immediately” because he “had 
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everything lined up.” He estimated he spent nearly $8,000 

on repairs.

McCoolidge never drove the Element. He bought two other 

automobiles that he used for transportation after he bought the 

Element, paying a total of $5,000 or $6,000. He did not rent 

a vehicle.

McCoolidge did not remove the motorized ramp from the 

salvaged vehicle. He explained that he could have removed 

the equipment but “let it go” because he did not feel that he 

owned the Element. He thought the forgone equipment was 

worth “[t]housands.”

McCoolidge stored the Element at Cars on Keystone until 

July 2012, when he moved it to the garage at his residence. 

McCoolidge never paid to store the Element but testified that 

Monteith sent him a bill for storage fees. He produced a May 

2011 bill from “Classic Auto Rental & Repair Services”—

which he said was Cars on Keystone’s “parent company”—

stating that the “Unit Price” for “Store inside facility” was $30 

per day. He said that “Douglas County” charges $45 per day to 

store towed vehicles.

Monteith was unaware of any storage fees at Cars on 

Keystone and had never seen a bill for the Element. He testified that he did not know if McCoolidge kept the Element at 

Cars on Keystone, because “I haven’t been in the building for 

two years.” Asked about McCoolidge’s reference to a “parent 

company” that “wants to charge a lot of storage,” Monteith 

said “[t]here is no parent company that I know of.” If someone charged for storage at Cars on Keystone, Monteith said it 

would have been McCoolidge.

Procedural Background

In 2011, McCoolidge sued Oyvetsky, Car and Truck Center, 

and Travelers Casualty and Surety Company of America. The 

insurance company had issued a surety bond to Car and Truck 

Center for the “protection of any person who suffers loss 

because of . . . [t]he dealer’s failure to deliver in conjunction 
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with the sale of a vehicle a valid vehicle title certificate free 

and clear of any prior owner’s interests . . . .”

McCoolidge accused the defendants of failing to deliver 

“clear title” for the Element. He claimed the following damages: (1) storage costs; (2) loss of use; (3) repair costs “wasted 

in light of the defective title”; and (4) “[c]ost of cover in the 

attempt to obtain a clear title.”

In 2014, the court entered a judgment for the defendants. It 

found that McCoolidge initially contracted with Oyvetsky, but 

that Car and Truck Center “inserted itself into the transaction 

to become a party to the contract,” thus triggering the protection of the surety bond. In the court’s findings of fact section, it 

stated that McCoolidge “admitted that he was presented with a 

title that he could use to register the [Element], but was waiting 

for the resolution of this lawsuit to do so.”

The court concluded that the defendants initially breached 

the warranty of title in Neb. U.C.C. § 2-312 (Reissue 2001), but 

that McCoolidge eventually “received good title in 2011, sometime after May and before [his] deposition.” McCoolidge could 

recover damages caused by the delay but had failed to prove 

them. For example, the court explained that McCoolidge was 

“entitled to the difference in value of the [Element] with good 

title compared to what he received, but there is no evidence 

of that amount in the record.” As to McCoolidge’s request for 

storage costs, loss of use, repair costs, and cover costs, the 

court found that any such expenses were not “‘directly attributable’” to the defendants’ breach.

McCoolidge appeals.

ASSIGNMENTS OF ERROR

McCoolidge assigns, consolidated, that the court erred by (1) 

determining that he received “good title” despite the absence 

of a bill of sale or “other supporting documentation” and the 

presence on the certificate of title of a “third party who was a 

complete stranger to the transaction” and (2) determining that 

he failed to prove damages.
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STANDARD OF REVIEW

[1,2] In a bench trial of a law action, the trial court’s factual 

findings have the effect of a jury verdict, which an appellate 

court will not disturb unless clearly wrong.1 We independently 

review questions of law.2

ANALYSIS

The district court determined that the sellers stood in breach 

of the warranty of title until they delivered a certificate of 

title to McCoolidge “sometime in 2011” that he could register in Nebraska. McCoolidge argues that, despite receiving 

a registrable certificate of title, he still did not have good 

title because he lacked a “bill of sale or other customary 

documentation” and the certificate “name[d] a third party to 

the transaction.”3

Two legislative enactments are particularly relevant to the 

sale of automobiles. The first is article 2 of the Uniform 

Commercial Code, which governs the sale of “goods,” including automobiles.4

 The second is the Motor Vehicle Certificate 

of Title Act.5 We consider article 2 “concurrently with the certificate of title act.”6

1 Timberlake v. Douglas County, 291 Neb. 387, 865 N.W.2d 788 (2015). 

See, also, Koperski v. Husker Dodge, Inc., 208 Neb. 29, 302 N.W.2d 655 

(1981); Larutan Corp. v. Magnolia Homes Manuf. Co., 190 Neb. 425, 209 

N.W.2d 177 (1973).

2 See Timberlake v. Douglas County, supra note 1.

3 Brief for appellant at 8, 9.

4 See, Neb. U.C.C. § 2-102 (Reissue 2001); Worley v. Schaefer, 228 Neb. 

484, 423 N.W.2d 748 (1988); Dugdale of Nebraska v. First State Bank,

227 Neb. 729, 420 N.W.2d 273 (1988), overruled in part on other 

grounds, Aken v. Nebraska Methodist Hosp., 245 Neb. 161, 511 N.W.2d 

762 (1994). See, also, Annot., 47 A.L.R.5th 677 (1997).

5 See Neb. Rev. Stat. §§ 60-101 to 60-197 (Reissue 2010, Cum. Supp. 2014 

& Supp. 2015).

6 See Dugdale of Nebraska v. First State Bank, supra note 4, 227 Neb. at 

734, 420 N.W.2d at 277.
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The district court determined that the sellers initially 

breached the warranty of title in § 2-312(1). That section 

provides:

[T]here is in a contract for sale a warranty by the seller 

that

(a) the title conveyed shall be good, and its transfer 

rightful; and

(b) the goods shall be delivered free from any security 

interest or other lien or encumbrance of which the buyer 

at the time of contracting has no knowledge.

[3] The seller breaches the warranty of title in § 2-312 if 

there is a substantial cloud or shadow over the title, even if no 

third party has come forward with a superior claim.7 Section 

2-312(1)(a) guarantees the buyer “a good, clean, title transferred to him or her also in a rightful manner so that he or she 

will not be exposed to a lawsuit in order to protect it.”8

McCoolidge directs us to § 60-140 of the Motor Vehicle 

Certificate of Title Act, which we have referred to as an “invalidating provision.”9

 Section 60-140(1) provides:

[N]o person acquiring a vehicle from the owner thereof, 

whether such owner is a manufacturer, importer, dealer, 

or entity or person, shall acquire any right, title, claim, 

or interest in or to such vehicle until the acquiring person 

7 See, Saber v. Dan Angelone Chevrolet, Inc., 811 A.2d 644 (R.I. 2002); 

Colton v. Decker, 540 N.W.2d 172 (S.D. 1995); Maroone v. Chevrolet, Inc. 

v. Nordstrom, 587 So. 2d 514 (Fla. App. 1991); U-J Chevrolet Co., Inc. v. 

Marcus, 460 So. 2d 1341 (Ala. Civ. App. 1984); City Car Sales, Inc. v. 

McAlpin, 380 So. 2d 865 (Ala. Civ. App. 1979); Ricklefs v. Clemens, 216 

Kan. 128, 531 P.2d 94 (1975); 77A C.J.S. Sales § 458 (2008). But see, C.F. 

Sales, Inc. v. Amfert, Inc., 344 N.W.2d 543 (Iowa 1983); Skates v. Lippert, 

595 S.W.2d 22 (Mo. App. 1979).

8 § 2-312, comment 1. See, also, Stauffer v. Benson, 288 Neb. 683, 850 

N.W.2d 759 (2014); Omermiller v. Baasch, 284 Neb. 542, 823 N.W.2d 162 

(2012).

9 Worley v. Schaefer, supra note 4, 228 Neb. at 489, 423 N.W.2d at 751 

(citing former Neb. Rev. Stat. § 60-105 (Reissue 1984)).
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has had delivered to him or her physical possession 

of such vehicle and (a) a certificate of title or a duly 

executed manufacturer’s or importer’s certificate with 

such assignments as are necessary to show title in the 

purchaser, (b) a written instrument as required by section 60-1417, (c) an affidavit and notarized bill of sale as 

provided in section 60-142.01, or (d) a bill of sale for a 

parts vehicle as required by section 60-142.

Other relevant sections of the Motor Vehicle Certificate of 

Title Act include § 60-139, which prohibits a purchaser from 

possessing a “certificate of title which does not contain such 

assignments as are necessary to show title in the purchaser or 

transferee.” One who operates a motor vehicle for which a certificate of title is required without having such a certificate is 

guilty of a misdemeanor under § 60-180.

We note that the Motor Vehicle Certificate of Title Act is 

the exclusive method of transferring title to a vehicle, but it is 

not conclusive of ownership.10 Between the buyer and seller 

of a motor vehicle, the certificate of title is only prima facie 

evidence of ownership.11 If the seller wrongly refuses to deliver 

a valid certificate, Neb. U.C.C. § 2-401 (Cum. Supp. 2014) 

dictates when title passes.12

[4] Here, the court determined that the sellers initially 

breached the warranty of title by failing to deliver a certificate 

that McCoolidge could register. Neither Oyvetsky nor Car 

and Truck Center challenge this conclusion. A seller breaches 

the warranty of title in § 2-312 by delivering a defective certificate of title to the buyer.13 We agree with the court that 

the sellers breached the warranty of title by failing to provide 

10 Hanson v. General Motors Corp., 241 Neb. 81, 486 N.W.2d 223 (1992).

11 Id.; Alford v. Neal, 229 Neb. 67, 425 N.W.2d 325 (1988).

12 Alford v. Neal, supra note 11.

13 See, Jefferson v. Jones, 286 Md. 544, 408 A.2d 1036 (1979); 67A Am. Jur. 

2d Sales § 710 (2014).
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McCoolidge with the documentation necessary to complete one 

of the titling methods in § 60-140.

But the court determined that the sellers gave McCoolidge 

a registrable certificate sometime in 2011. McCoolidge, the 

court stated, could have registered one of the certificates in 

Nebraska but abstained from doing so because he wanted to 

wait for the outcome of this litigation.

McCoolidge contends that “[t]he fact that [he] was eventually provided with a document which he could register in 

Nebraska does not cure the earlier breach.”14 “The ability to 

register a vehicle,” McCoolidge asserts, “is not even remotely 

the same as ‘good title . . . .’”15 He identifies two defects that 

remained despite his ability to register the certificate of title: 

(1) the lack of a bill of sale or similar documentation and (2) 

the presence on the certificate of title of a third party who was 

“a complete stranger to the transaction.”16

[5,6] McCoolidge is correct that the buyer’s ability to obtain 

a certificate of title stating that he is the owner is not always 

dispositive in warranty of title cases.17 But we need not decide 

whether a shadow remained over McCoolidge’s title, because 

he failed to show what damages, if any, he incurred from the 

alleged breach. Buyers asserting a breach of warranty under 

the Uniform Commercial Code must not only prove the warranty and breach thereof, but also the cause of their loss and 

the extent of their damages.18 They do not have to prove damages with mathematical certainty, but the evidence must be 

14 Reply brief for appellant at 2.

15 Id.

16 Brief for appellant at 5.

17 See, Colton v. Decker, supra note 7; Jefferson v. Jones, supra note 13; 1 

James J. White et al., Uniform Commercial Code § 10:41 (6th ed. 2012).

18 See Settell’s, Inc. v. Pitney Bowes, Inc., 209 Neb. 26, 305 N.W.2d 896 

(1981).
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sufficient to allow the trier of fact to estimate the actual damages with reasonable certainty.19

[7] If the buyer accepts defective goods, damages are measured under Neb. U.C.C. § 2-714 (Reissue 2001). The court 

determined that the measure of damages in § 2-714(2) applied, 

thus implicitly finding that McCoolidge had accepted the 

Element—although he clearly never accepted the sufficiency 

of any of the certificates of title. The record supports a finding that McCoolidge did not effectively reject the Element.20

For example, McCoolidge testified that he never tried to “just 

send [the Element] back.” Furthermore, he did not allege in 

his complaint that he rejected or revoked his acceptance of the 

Element and he never claimed that he was entitled to recover 

the purchase price.21

As with other breaches of warranty, § 2-714 is the usual 

starting place for measuring damages for breach of the warranty of title.22 Section 2-714 provides:

(1) Where the buyer has accepted goods and given 

notification [of the breach to the seller] he may recover 

as damages for any nonconformity of tender the loss 

resulting in the ordinary course of events from the 

seller’s breach as determined in any manner which is 

reasonable.

(2) The measure of damages for breach of warranty 

is the difference at the time and place of acceptance 

between the value of the goods accepted and the value 

they would have had if they had been as warranted, unless 

special circumstances show proximate damages of a different amount.

19 Id.

20 See Neb. U.C.C. §§ 2-602 and 2-606(1)(b) (Reissue 2001).

21 See Neb. U.C.C. § 2-711(1) (Reissue 2001).

22 See Metalcraft, Inc. v. Pratt, 65 Md. App. 281, 500 A.2d 329 (1985).
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(3) In a proper case[,] any incidental and consequential damages under the next section may also be 

recovered.

We have referred to the difference between the value of the 

goods as accepted and the value as warranted under § 2-714(2) 

as “‘the keystone for computing buyer’s damages.’”23

McCoolidge established the purchase price of the Element, 

which is strong evidence of its value as warranted.24 For the 

value as accepted, McCoolidge argues that the Element “has 

absolutely no value to [him] without a clear chain of ownership and good title.”25 Some breaches of the warranty of 

title may render the value of the accepted goods zero.26 But 

McCoolidge did not show that the Element was worthless 

to him, at least after he received a certificate of title that he 

could register in Nebraska. He presented no evidence whatsoever of how the lack of a bill of sale and the presence of 

a “third party” on the certificate of title affected the value of 

the Element.

Similarly, the court did not err by denying McCoolidge 

damages for the money he spent repairing the Element’s 

structural damage. McCoolidge argues that because he “has 

not and will not receive good title, the repairs were wasted 

on a vehicle that he cannot use.”27 If a buyer repairs a motor 

vehicle without good title, courts generally consider repairs 

as evidence of the vehicle’s value under a temporally modified calculation of diminution in value under § 2-714(2).28

23 Settell’s, Inc. v. Pitney Bowes, Inc., supra note 18, 209 Neb. at 30, 305 

N.W.2d at 898.

24 See id.

25 Reply brief for appellant at 7.

26 1 White et al., supra note 17, § 10:45.

27 Reply brief for appellant at 9.

28 See, Schneidt v. Absey Motors, Inc., 248 N.W.2d 792 (N.D. 1976); Ricklefs 

v. Clemens, supra note 7; Annot., 94 A.L.R.3d 583 (1979). See, also, 

Marino v. Perna, 165 Misc. 2d 504, 629 N.Y.S.2d 669 (N.Y. Civ. 1995).
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But, as noted, McCoolidge did not show how the alleged 

title defects affected the Element’s value. Courts may invoke 

the “special circumstances” exception in § 2-714(2) to award 

repair costs as damages.29 Here, though, the court found there 

were not special circumstances, and that finding was not 

clearly wrong.30

[8] In addition to damages under § 2-714(2), a buyer may 

also recover incidental and consequential damages.31 The existence of “special circumstances” under § 2-714(2) is not a 

precondition to a buyer’s recovery of incidental and consequential damages.32 Courts invoke the “special circumstances” 

exception to award damages for repair or replacement costs33

or, more commonly in warranty of title cases, to shift the valuation date under § 2-714(2) from “the time . . . of acceptance” 

to the date on which the buyer’s possession of the automobile 

was interrupted because of a title defect.34 Section 2-714(3) 

states that a buyer can recover incidental and consequential 

cases in a “proper case.” Such damages are proper when 

the buyer meets the requirements of Neb. U.C.C. § 2-715 

(Reissue 2001).35

The recovery of incidental and consequential damages is 

governed by § 2-715, which provides:

29 See 1 Roy Ryden Anderson, Damages Under the Uniform Commercial 

Code § 10:10 (2015-16 ed.). See, also, Hillcrest County Club v. N.D. Judds 

Co., 236 Neb. 233, 461 N.W.2d 55 (1990).

30 See Hillcrest County Club v. N.D. Judds Co., supra note 29.

31 Miller v. Stan Ortmeier Constr. Co., 229 Neb. 259, 426 N.W.2d 272 

(1988).

32 1 Anderson, supra note 29, § 10:13.

33 See id., § 10:10.

34 See, Marino v. Perna, supra note 28; U-J Chevrolet Co., Inc. v. Marcus, 

supra note 7; Schneidt v. Absey Motors, Inc., supra note 28; Ricklefs v. 

Clemens, supra note 7; 1 Anderson, supra note 29, § 10:12; 1 White et al., 

supra note 17, § 11:5 n.3. But see Masoud v. Ban Credit Service Agency, 

128 Misc. 2d 642, 494 N.Y.S.2d 598 (N.Y. Sup. 1985).

35 See 1 Anderson, supra note 29, § 10:13.
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(1) Incidental damages resulting from the seller’s 

breach include expenses reasonably incurred in inspection, receipt, transportation and care and custody of goods 

rightfully rejected, any commercially reasonable charges, 

expenses or commissions in connection with effecting 

cover and any other reasonable expense incident to the 

delay or other breach.

(2) Consequential damages resulting from the seller’s 

breach include

(a) any loss resulting from general or particular requirements and needs of which the seller at the time of contracting had reason to know and which could not reasonably be prevented by cover or otherwise; and

(b) injury to person or property proximately resulting 

from any breach of warranty.

McCoolidge argues that he should receive damages for 

storing the Element. Incidental damages include the cost of 

storing defective goods.36 But McCoolidge did not actually 

pay to store the Element, and Monteith’s testimony suggests 

that he is under no obligation to do so. McCoolidge responds 

that the absence of actual expenses is “irrelevant as he forfeited the benefit of the space used for storage” and that he is 

“entitled to the reasonable value of storing the vehicle.”37 Any 

loss sustained by Cars on Keystone from storing the Element 

was sustained by the corporate entity doing business as Cars 

on Keystone.38 McCoolidge did not show how such a loss 

affected his “profit interest” in the company. As to the period 

during which McCoolidge stored the Element at his personal 

residence, the court could find that evidence of the cost of 

36 2 Roy Ryden Anderson, Damages Under the Uniform Commercial Code 

§ 11:6 (2015-16 ed.).

37 Brief for appellant at 10.

38 See Steinhausen v. HomeServices of Neb., 289 Neb. 927, 857 N.W.2d 816 

(2015).
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storing a vehicle at Cars on Keystone or the county impound 

lot did not reflect McCoolidge’s actual loss.

McCoolidge also argues that uncertainty about the Element’s 

title caused him to lose access to a free motorized wheelchair ramp. Such a loss would be an item of consequential 

damages.39 Under § 2-715(2)(a), the buyer cannot recover 

consequential damages if he could have reasonably prevented 

the loss by cover or otherwise. Here, the court found that 

McCoolidge could have stored the equipment until he received 

good title. Furthermore, the buyer must make his particular 

needs generally known to the seller to charge the seller with 

knowledge under § 2-715(2)(a).40 McCoolidge testified that 

he told Oyvetsky that he had multiple sclerosis and “that’s 

why I wanted a Honda Element.” But there is no evidence 

that McCoolidge made known to the sellers that he had timesensitive access to free accessibility equipment.

[9] McCoolidge also claims damages for the loss of use of 

the Element. Loss of use is another example of consequential 

damages.41 We have said that the reasonable value of the loss 

of use of a motor vehicle is generally the fair rental value of a 

like vehicle for a reasonable length of time or the amount actually paid, whichever is less.42

McCoolidge’s failure to actually rent another vehicle is not 

necessarily fatal to his claim for loss of use damages. Most 

courts award loss of use damages even if the plaintiff did 

39 See Adams v. American Cyanamid Co., 1 Neb. App. 337, 498 N.W.2d 577 

(1992). 

40 See § 2-715, comment 3.

41 See, World Enterprises, Inc. v. Midcoast Aviation, 713 S.W.2d 606 (Mo. 

App. 1986); 2 Anderson, supra note 36, § 11:33. But see Midwest Mobile 

Diagnostic Imaging v. Dynamics Corp., 965 F. Supp. 1003 (W.D. Mich. 

1997).

42 See, Chlopek v. Schmall, 224 Neb. 78, 396 N.W.2d 103 (1986); Rose v. 

United States Nat. Bank, 218 Neb. 97, 352 N.W.2d 594 (1984); Husebo v. 

Ambrosia, Ltd., 204 Neb. 499, 283 N.W.2d 45 (1979).
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not actually rent a substitute chattel,43 at least if the chattel 

was for personal use.44 Those who lack the means to rent a 

vehicle may nevertheless be inconvenienced and should not 

be barred from recovering damages because of their financial circumstances.45

[10] But McCoolidge could only recover damages for loss 

of use for “a reasonable length of time.”46 A reasonable length 

of time depends on the facts of the case,47 but should generally correspond to the length of time the buyer would have 

used the vehicle but for the breach of warranty.48 McCoolidge 

bought the Element knowing that repairs were necessary 

because the roof was “caved in.” He also planned to install 

a motorized wheelchair ramp. He did not show how long 

the Element would have been inoperable because of the 

expected repairs and modifications, apart from the difficulties 

43 Warren v. Heartland Auto. Services, Inc., 36 Kan. App. 758, 144 P.3d 73 

(2006); Castillo v. Atlanta Cas. Co., 939 P.2d 1204 (Utah App. 1997); 

United Truck Rental v. Kleenco Corp., 84 Haw. 86, 929 P.2d 99 (1996); 

Cress v. Scott, 117 N.M. 3, 868 P.2d 648 (1994); Camaraza v. Bellavia 

Buick Corp., 216 N.J. Super. 263, 523 A.2d 669 (1987); Francis v. Steve 

Johnson Pontiac-GMC-Jeep, 724 P.2d 84 (Colo. App. 1986); Luna v. 

North Star Dodge Sales, Inc., 667 S.W.2d 115 (Tex. 1984); Mountain View 

Coach v Storms, 102 A.D.2d 663, 476 N.Y.S.2d 918 (N.Y. Sup. 1984); 

Jacobs v. Rosemount Dodge-Winnebago South, 310 N.W.2d 71 (Minn. 

1981); Meakin v. Dreier, 209 So. 2d 252 (Fla. App. 1968); Annot., 18 

A.L.R.3d 497, § 13 (1968). See, also, 2 Anderson, supra note 36, § 11:33. 

But see Winchester v. McCulloch Bros. Garage, 388 So. 2d 927 (Ala. 

1980).

44 See PurCo Fleet Services, Inc. v. Koenig, 240 P.3d 435 (Colo. App. 2010).

45 See United Truck Rental v. Kleenco Corp., supra note 43; Luna v. North 

Star Dodge Sales, Inc., supra note 43.

46 Rose v. United States Nat. Bank, supra note 42, 218 Neb. at 100, 352 

N.W.2d at 597. Accord Husebo v. Ambrosia, Ltd., supra note 42.

47 See Husebo v. Ambrosia, Ltd., supra note 42.

48 See, Warren v. Heartland Auto. Services, Inc., supra note 43; Seekings 

v. Jimmy GMC of Tucson, Inc., 130 Ariz. 596, 638 P.2d 210 (1981); 18 

A.L.R.3d, supra note 43, § 18.
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caused by the lack of good title. McCoolidge did not have to 

prove the exact date on which he would have begun to drive 

the Element if the sellers gave him satisfactory title,49 but 

awarding loss of use damages on the record before us would 

require speculation.

Finally, McCoolidge argues that he is entitled to the costs he 

incurred “in an attempt to obtain a clear title.”50 He does not 

explain what these costs were, and after reviewing the record, 

we do not think that the amount of such costs would have been 

apparent to the court.

CONCLUSION

The court determined that the sellers breached the warranty 

of title by failing to deliver a registrable certificate of title to 

McCoolidge. Even after he received a registrable certificate, 

McCoolidge claims that the lack of a bill of sale and the presence of a “third party” on the certificate cast a shadow on his 

title. But McCoolidge did not prove the damages he suffered 

from these defects. We therefore affirm the court’s judgment 

for the defendants.

Affirmed.

49 See Settell’s, Inc. v. Pitney Bowes, Inc., supra note 18.

50 Brief for appellant at 11.