This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
M.A. Fearing Companies, Inc.,
Sarah M. Cournoyer,
Filed February 15, 2000
Washington County District Court
File No. CX963904
James R. Doran, 416 East Hennepin Avenue, Minneapolis, MN 55414; and
William C. Weeding, 7301 Ohms Lake, Suite 325, Edina, MN 55439 (for appellant)
Anne Greenwood Brown, P.O. Box 935, Stillwater, MN 55082 (for respondent)
Considered and decided by Harten, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant sued respondent for breach of a purchase agreement. Appellant argues the district court erred in granting summary judgment in respondentís favor, contending that respondent had a legal duty to make additional applications for financing and that fact issues exist regarding whether respondent made a good faith effort to obtain financing. We affirm.
D E C I S I O N
On appeal from summary judgment, the reviewing court asks two questions: (1) whether there are any genuine issues of material fact; and (2) whether the lower court erred in applying the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The court must view the evidence in the light most favorable to the party against whom summary judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). When a motion for summary judgment is made and supported, the nonmoving party must present specific facts showing there is a genuine issue for trial. Minn. R. Civ. P. 56.05.
Appellant and respondent entered into an agreement whereby respondent agreed to purchase a twin home to be constructed by appellant. The contract contained several contingencies including a financing contingency. After respondent applied for financing and was turned down, respondent refused to go forward with the purchase. Appellant argues the district court erred when it determined that respondent did not have a duty to make multiple loan applications under the purchase agreement and that respondent acted in good faith. We disagree.
Whether a person owes a legal duty to another person under a contract is a question of law, which this court reviews de novo. Nickelson v. Mall of America Co., 593 N.W.2d 723, 726 (Minn. App. 1999). A buyer in a real estate purchase agreement containing a financing contingency has a duty to secure financing in good faith. Plaisted v. Fuhr, 367 N.W.2d 541, 545 (Minn. App. 1985). "Good faith" is generally defined as honesty in fact. White Stone Partners v. Piper Jaffray Cos., 978 F. Supp. 878, 881 (D. Minn. 1997).
The district court relied on Plaisted in determining that respondent did not have a duty to make multiple applications for financing. In Plaisted, the buyers had made a single loan application, which was still pending on the date the financing deadline expired. 367 N.W.2d at 544. The Plaisted court stated, "[w]e can find no duty either to make multiple applications or to waive a financing deadline imposed for the benefit of both parties." Id. at 545.
Appellant argues that because here there was no financing deadline, respondent had time to make additional loan applications and therefore had a duty to do so. But in a contract without a financing deadline, a buyer is not required to make loan applications indefinitely. If the parties intended that respondent make multiple loan applications, this requirement could have been included in the agreement. But the contract was deliberately left indefinite. The parties used a preprinted purchase agreement form and filled in several of the blanks in the document with "to be determined" including (1) the time for beginning and completing construction; (2) the manner of paying the contract price; (3) the time for paying the contract price; and (4) the deadline for obtaining financing. Under these facts, we conclude respondent did not have an obligation to make additional financing applications.
Appellant also argues that summary judgment was inappropriate due to a fact dispute regarding whether respondentís first attempt to obtain financing was made in good faith. We disagree. For appellant to withstand respondentís summary judgment motion, it "must present affirmative evidence sufficient to raise an issue of material fact: mere denials, general assertions and speculation are not enough." Gutbrod v. County of Hennepin, 529 N.W.2d 720, 723 (Minn. App. 1995) (citations omitted). Appellant attempts to raise a fact issue by an affidavit presenting only speculation and conclusory statements. These bare assertions are insufficient to raise a genuine issue of material fact. See Patton v. Newmar Corp., 538 N.W.2d 116, 120 (Minn. 1995) (holding that an affidavit that contained "few facts beyond those which could be expected to be contained in the complaint" and bare legal conclusions was insufficient to prevent summary judgment against the nonmoving party).