This opinion will be unpublished and may

not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







Elsie Mayard, individually and

d/b/a Frogtown Market,





Northern States Power Company,




Filed August 15, 2000


Lansing, Judge


Ramsey County District Court

File No. C8992507



Elsie M. Mayard, 755 West Minnehaha Avenue, St. Paul, MN 55104 (pro se appellant)


Bruce A. Colt, Northern States Power Company, 414 Nicollet Mall, Fifth Floor, Minneapolis, MN 55401 (for respondent)


            Considered and decided by Lansing, Presiding Judge, Halbrooks, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N


     Elsie Mayard, d/b/a Frogtown Market, appeals from summary judgment dismissing her complaint against Northern States Power Company.  Because the record contains insufficient evidence to raise a genuine fact issue or support a finding for Mayard as a matter of law, we affirm.


            NSP began providing gas and electrical service to Mayard’s business in October 1997.  Mayard paid the initial NSP bill in November 1997, but failed to pay a number of subsequent bills, claiming that NSP was overcharging her for services.  As a result, the past-due balance on Mayard’s account by October 1, 1998, was $3,499.69.

NSP tested the reliability of its gas and electric meters and performed several ascertainment procedures in response to Mayard’s concerns.  After confirming that its meters were reliable, NSP issued nine disconnect notices, attempted to make payment arrangements with Mayard, and explained the consequences of nonpayment.  In September 1998, NSP disconnected and locked the electric meter for Mayard’s business.

In October 1998, Mayard agreed to bring her account up to date by paying $2,832.82 on October 1 and $666.87 on October 23.  Mayard made the first payment, but defaulted on the second.  After that default, NSP again suspended service.

            In December 1998, Mayard contacted the Minnesota Public Utilities Commission (PUC) about the suspension of service.  After discussions with a customer advocate at NSP, PUC concluded that Mayard’s bill was past due.  PUC advised Mayard to pay the bill, explained that NSP could terminate service for nonpayment, and referred her to NSP to obtain a statement of her account.

            Mayard then filed a complaint against NSP with the Minnesota Department of Public Service (DPS) and asked for its assistance in getting service restored.  In January 1999, DPS told Mayard that it had reviewed NSP records and concluded that she had been properly billed for services provided and that her account was delinquent.  DPS set a seven-month payment plan for Mayard and asked NSP to restore service.  In May 1999, after Mayard failed to comply with the initial payment plan, DPS set another payment plan.  Mayard also failed to meet the payment schedule on the second payment plan.

            In March 1999, Mayard brought this action against NSP, claiming that NSP breached its contract with her by overcharging her for services, failing to bill her, and breaking payment arrangements it made with her.  Mayard also sought injunctive relief enjoining NSP from contacting her about her bill.

            NSP served Mayard with interrogatories and a request for the production of documents.  Mayard did not respond to NSP’s document-production requests, and, on NSP’s motion, the district court entered an order compelling discovery.  Based on the documents that Mayard produced, NSP moved for summary judgment.  The district court granted NSP’s motion.  This appeal followed.


Minn. R. Civ. P. 56 allows a district court to decide an action on the merits when no genuine fact issues exist for trial and the moving party is entitled to judgment as a matter of law.  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).  No genuine fact issues exist for trial when the nonmoving party fails to produce substantial evidence sufficiently probative of the essential elements of the claim to support judgment for the claim.  Id. at 71.  Substantial evidence is “evidence sufficient to avoid a directed verdict at trial.” 70 (quoting Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976))The party resisting summary judgment must do more than rest on the allegations in the complaint.  Id. at 71.

            To survive summary judgment on her breach-of-contract claim, Mayard had the burden of producing substantial evidence that NSP overcharged her for services or that it otherwise impermissibly terminated services for which it had contracted.  Except for Mayard’s allegations, the record contains no evidence tending to establish that NSP overcharged Mayard or that it otherwise breached its contract with her. Because allegations alone are insufficient to create a triable case, the district court properly granted summary judgment on Mayard’s breach-of-contract claim.  See id. (stating party resisting summary judgment must do more than rest on mere averments).

            Mayard also seeks injunctive relief enjoining NSP from contacting her about her bill.  The district court did not expressly dismiss Mayard’s injunctive-relief claim.  But because neither the district court record nor the brief to this court addresses the claim or indicates that it is still pending, we construe the district court’s judgment of dismissal to embrace all claims.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.