Opinion
No. A03-886.
Filed February 10, 2004.
Appeal from the District Court, Scott County, File No. 2002-23428.
Derrick N. Weber, Jefferson C. Pappas, Messerli Kramer, P.A., Plymouth, Mn, (for respondent)
Christopher W. Madel, Steven E. Uhr, Robins, Kaplan, Miller Ciresi, Llp, Minneapolis, Mn, (for appellant)
Considered and decided by Shumaker, Presiding Judge; Randall, Judge; and Schumacher, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
Appellant challenges summary judgment granted to respondent, contending that a genuine fact issue exists as to whether he exercised his right to cure a default on an installment contract and a genuine fact issue exists as to his counterclaim under Minnesota's Consumer Protection Act. Because appellant failed to show the existence of any genuine issue of material fact, we affirm.
FACTS
Appellant Scott Roepke purchased a 1997 Chevrolet Suburban automobile, signed a retail installment contract for payment of the purchase price, and gave to the seller a security interest in the vehicle. Roepke was required to make monthly payments of $737.93. He admits that he failed to make those payments for March, April, and May 2000.
The contract provides that failure to make a monthly payment constitutes a default that give the seller the right to accelerate the entire outstanding balance and, after notice and an opportunity to redeem the contract, repossess the vehicle and sell it.
On May 22, 2000, respondent sent Roepke notice of default; informed him that he could cure the default by paying $2,213.79 no later than June 2, 2000; and indicated that if this sum was not paid by that date, the vehicle would be repossessed and the entire outstanding balance would be due. Respondent did not receive payment from Roepke, repossessed and sold the vehicle, and sued Roepke for the balance due. Roepke counterclaimed under the Minnesota Consumer Protection Act. The district court granted respondent's motion for summary judgment on its claim and Roepke's counterclaim. Roepke appeals.
DECISION
When reviewing the award of summary judgment this court determines whether there exists any genuine issue of material fact and whether a party is entitled to judgment as a matter of law. Dollander v. Rochester State Hosp., 362 N.W.2d 386, 389 (Minn. App. 1985), review denied (Minn. May 20, 1985). The nonmoving party cannot defeat a summary-judgment motion by postulating evidence that might be developed at trial. Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn. 2001). Rather, the nonmoving party must show that there exists substantial evidence from which reasonable persons might draw different conclusions. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). Evidence that requires the trier of fact to speculate as to an essential fact or issue does not create a genuine issue for trial. See Carlisle v. City of Minneapolis, 437 N.W.2d 712, 715 (Minn. App. 1989) (stating the nonmoving party may not rely on surmise, speculation, or general statements of fact to defeat a motion for summary judgment.).
In response to respondent's summary-judgment motion, appellant submitted an affidavit in which he stated:
Following the receipt of the Notice of Default, I contacted Dan (Last Name Unknown) who worked at Chrysler Financial. I left at least two and possibly three voice mail message for him . . . prior to June 2, 2000.
In my voice mail messages to Dan, I provided him with check numbers, bank name and specific days to cash the checks. I had sufficient funds in my account to ensure that the checks would clear.
. . . .
Dan never called me back in response to my voice mails during the time period prior to the repossession, even though I had requested that he do so in the messages I left him.
I recollect that I recorded in my ledger the information that I provided to Dan. . . . Those records are not currently in my possession.
Based on this affidavit, appellant contends that there exists a genuine fact issue as to whether or not he cured the default in a timely manner. The district court ruled otherwise, and we agree. Appellant's affidavit, together with the other evidence in the record, shows that appellant received notice of the nature and amount of the default, of his right to cure the default, of the date by which he had to cure the default, and the consequences of his failure to cure by that time. His response was to leave telephone voice messages for someone named Dan, who allegedly was an employee of respondent. Appellant gave to Dan check numbers that appellant does not recall and instructed Dan to cash checks on certain days. Appellant made a record of the check numbers and dates for cashing the checks, but he lost that record. Appellant does not specify the dates of the messages, but alleges that the default-curing procedure was the same as the procedure respondent previously used to cure one of appellant's defaults.
These "facts" would leave the trier of fact to speculate as to the timeliness of the telephone messages; the authority of the recipient of the messages to allow appellant to cure the default in installments; and the timeliness of the cure. These are not specific facts that give rise to a genuine issue for trial. See W.J.L. v. Bugge, 573 N.W.2d 677, 680 Minn. 1998) (stating "the nonmoving party must do more than rely on unverified or conclusory allegations in the pleadings").
Appellant next argues that the district court "improperly granted summary judgment on [his] counterclaim." But appellant makes no legal argument and cites no authority to support his argument; thus his argument is waived. Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987).
In any event, a complaint failing to state a claim upon which relief may be granted must be dismissed. Minn. R. Civ. P. 12.02(e). This court's review of a complaint dismissed for that reason "must only determine whether the complaint sets forth a legally sufficient claim for relief. A claim prevails against a motion to dismiss if it is possible on any evidence [that] might be produced, consistent with the pleader's theory, to grant the relief demanded." Geldert v. Am. Nat'l Bank, 506 N.W.2d 22, 25 (Minn. App. 1993), review denied (Minn. Nov. 16, 1993). Appellant failed to show how the evidence supports a claim under Minn. Stat. § 47.59, subd. 12 (2002).