[nolemmings]

The most important thing I noticed was that Strek did not bother to appear and give testimony.

In a trial to the court, Fitl appeared with counsel and offered evidence. Strek was represented by counsel but did not appear or offer any evidence.

Strek claimed via his correspondence to Fitl that if Strek had received notice earlier, he could have contacted the person who sold him the baseball card to determine the source of the alteration, but there is no evidence to support this allegation. In fact, Strek offered no evidence at trial. His letter is merely an assertion that is unsupported.

The trial court thus had little choice--even if defense counsel poked holes in some of the Plaintiff's testimony-- so long as enough remained to establish the salient points then the only evidence presented weighed in favor of Plaintiff. There is only a preponderance of evidence standard; i.e. more likely than not, so the Plaintiff was nearly certain to carry the day on the facts. Strek should have spent the price of a plane ticket and taken the stand to offer his side, IMO. The only issue presented on appeal was whether the 2 year delay made the claim time-barred under the applicable law and the Court of Appeals affirmed the trial court in answering this question in the negative. There really was nothing else to review.

The issue of whether a tainted Mantle is worthless is a red herring here. The judgment did not hinge on value, and even if the Court found that the altered Mantle was worth something, it is beyond dispute that the card was worth less than an unaltered example. The Plaintiff sued for benefit of the bargain damages, meaning he wanted the appreciation associated with the FMV of a "true" Mantle at the time of trial, which was likely much more than he paid for it. The judgment, however, essentially gave him rescissory damages--he got back what he paid for it. I assume he returned the card to Defendant if/once he was paid on the judgment--he and his lawyer would have a hard time explaining why they should keep both the card and the purchase price and/or why they would object to the return of something they claimed was worthless.