S Q Fitl v. Strek 690 N. W.2d 605 (Neb. Sup. Ct. 2005) In September 1995, James Fitl attended a sports card show in San Francisco where Mark Strek, doing business as Star Cards of San Francisco, was an exhibitor. Fitl purchased from Strek a 1952 Mickey Mantle Topps baseball card for $17, 750. According to Fitl, Strek represented that the card was in near-mint condition. After Strek delivered the card to Fitl in Omaha, Nebraska, Fitl placed it in a safe-deposit box. In May 1997, Fitl sent the baseball card to Professional Sports Authenticator's (PSA), a leading grading service for sports cards that is located in Newport, California. PSA reported to Fitl that the card was ungradable because it had been discolored and doctored. The expert from the firm stated that any alteration of a card, including the touchup or trimming of a card, would render it valueless. In this case, the edges of the card had been trimmed and reglued. One spot on the front of the card and a larger spot on the back had been repainted, which left the card with no value. He also said that the standard for sports memorabilia was a lifetime guarantee and that a reputable dealer would stand behind what he sold and refund the money if an item were fake or had been altered. On May 29, 1997, Fitl wrote to Strek and indicated that he planned to pursue "legal methods" to resolve the matter. Strek replied that Fitl should have initiated a return of the baseball card in a timely fashion so that Strek could have confronted his source and remedied the situation. Strek asserted that a typical grace period for the unconditional return of a card was from seven days to one month. In August 1997, Fitl sent the baseball card to ASA Accugrade Inc. (ASA) in Longwood, Florida, for a second opinion. ASA also concluded that the baseball card had been refinished and trimmed. On September 8, 1997, Fitl sued Strek, alleging that Strek knew the baseball card had been recolored or otherwise altered and concealed this fact from him. Fitl claimed he had relied on Strek's status as a reputable dealer. The trial court entered judgment for Fill in the amount of $17,750 and costs. The court found that Fitl notified Strek as soon as he realized the baseball card was altered and worthless and that Fitl had notified Strek of the defect within a reasonable time after its discovery. The court rejected Strek's theory that Fitl should have determined the authenticity of the baseball card immediately after it had been purchased.Wright, Justice Strek claims that the court erred in determining that notification of the defective condition of the baseball card two years after the date of purchase was timely pursuant to UCC section 2-607(3)(a). Section 2-607(3)(a) states: "Where a tender has been accepted . . . the buyer must within a reasonable time after he discovers or should have discovered any breach notify the seller of breach or be barred from any remedy." "What is a reasonable time for taking any action depends on the nature, purpose and circumstances of such action." [2-204(2) ]. The notice requirement set forth in section 2-697(3)(a) serves three purposes. It provides the seller with an opportunity to correct any defect, to prepare for negotiation and litigation, and to protect itself against stale claims before it is too late for the seller to investigate. Whether the notice given is satisfactory and whether it is given within reasonable time are generally questions of fact to be measured by all the circumstances of the case. Fitl purchased the baseball card in 1995 and immediately placed it in a safe-deposit box. Two years later, he retrieved the baseball card, had it appraised, and learned that it was of no value. Fitl testified that he had relied on Strek's position as a dealer of sports cards and on his representation that the baseball card was authentic. In Cao v. Nguyen (2000), we stated a party is justified in relying upon a representation made to the party as a positive statement of fact when an investigation would be required to ascertain its falsity. In order for Fitl to have determined that the baseball card had been altered, he would have been required to conduct an investigation. We find that he was not required to do so. Once Fitl learned that the baseball card had been altered, he gave notice to Strek. As the court noted in Maybank v. Kresge Co. (1981), one of the most important policies behind the notice requirement of 2- 607(3)(a) is to allow the seller to cure the breach by making adjustments or replacements to minimize the buyer's damages and the seller's liability. However, even if Fitl had learned immediately upon taking possession of the baseball card that it was not authentic and had notified Strek at that time, there is no evidence that Strek could have made any adjustment or taken any action that would have minimized his liability. In its altered condition, the baseball card was worthless.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. Earlier notification would not have helped Strek prepare for negotiation in a suit because the damage to Fitl could not be Page 644 repaired. Thus, the policies behind the notice requirement, to allow the seller to repair a defect, to prepare for negotiation and litigation, and to protect against stale claims at a time beyond which an investigation can be completed, were not unfairly prejudiced by the lack of an earlier notice to Strek. Any problem Strek may have had with the party from whom he obtained the baseball card was a separate matter from his transaction with Fitl, and an investigation into the source of the altered card would not have minimized Fitl's damages. Judgment affirmed in favor of Fitl