This opinion will be unpublished and

may not be cited except as provided by

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






Christine Kay Busby,






The Groves Homeowners Association, Inc.,





Filed September 5, 2000


Toussaint, Chief Judge


Hennepin County District Court

 File No. 9816306



 Jill M. Waite, Waite, Ltd., 2856 Humboldt Avenue South, Suite 3, Minneapolis, MN 55408 (for appellant)


Thomas A. Gilligan, Jr., Murnane, Conlin, White & Brandt, P.A., 444 Cedar Street, Suite 1800, St. Paul, MN 55101 (for respondent)



            Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Parker, Judge.*

U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge

Appellant Christine Kay Busby challenges the district court’s summary-judgment dismissal of all claims with prejudice.  Appellant commenced this civil action against respondent, The Groves Homeowners Association, Inc. (Groves), on October 22, 1998 alleging claims for: (1) breach of contract; (2) gross negligence; (3) unjust enrichment; and (4) defamation.  On June 16, 1999, respondent moved for summary judgment on all claims.  Because the district court did not err in granting respondent’s motion, we affirm.


Appellant contends the district court erred in granting respondent’s motion for summary judgment on her claims for: (1) breach of contract; (2) gross negligence; (3) unjust enrichment; and (4) defamation.

[S]ummary judgment is appropriate where the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact’ and either party is entitled to judgment ‘as a matter of law.


W.J.L. v. Bugge, 573 N.W.2d 677, 680 (Minn. 1998) (quoting Minn. R. Civ. P. 56.03).  On an appeal from a grant of summary judgment, this court must determine whether there are any genuine issues of material fact and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

However, a reviewing court “must view the evidence in the light most favorable to the party against whom judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).  No genuine issue of material fact exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).  To resist summary judgment, the nonmoving party “must do more than rest on mere averments.”  Id. at 71.  A genuine issue of material fact “‘must be established by substantial evidence.’”  Id. at 70 (quoting Murphy v. Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976)).

A.         Breach of Contract Claims

Appellant contends the district court erred in granting summary judgment on its breach of contract claims for failure to: (1) make plumbing repairs affecting the hot and cold water supply to her unit; and (2) provide access to information and follow Bylaws.

            1.         Failure to Repair Plumbing Regulating Hot and Cold Water Supply

            Appellant contends respondent breached their contract by failing to make plumbing repairs, which affected her hot and cold water supply.  The operative documents governing a cooperative association, which include the bylaws and other contractual documents, constitute a contract between the association and its members.  See Chapman Place Ass’n, Inc., v. Prokasky, 507 N.W.2d 858, 863 (Minn. App. 1993) (explaining that town home association members’ rights are governed by the bylaws, other contractual documents, and real property law), review denied (Minn. Jan. 24, 1994).  In addition to the association’s bylaws, respondent entered into an occupancy agreement with appellant on or about June 1, 1994, that provided in part:

The Member shall maintain in good condition, at the owner’s own expense, the interior of the Dwelling Unit referenced herein, all appliances located therein, and any garage and storage unit included with the Dwelling Unit.  The Association shall furnish Common Area utilities. The Association shall also furnish heat, hot and cold water and trash removal services for the Dwelling Unit and all common areas at The Groves. * * * The Member shall be responsible for repair and maintenance of plumbing, heating and electrical facilities within the interior Dwelling Unit. The Association shall be responsible for all other utility maintenance except that required by Member’s misuse or negligence.


            Accordingly, the occupancy agreement clearly places on appellant the responsibility to repair and maintain plumbing components affecting the hot and cold water supply to her unit.  “Parties to an express contract are entitled to have their rights and obligations determined exclusively by its terms.”  Reese Design, Inc. v. I-94 Highway 61 Eastview Ctr. Partnership, 428 N.W.2d 441, 446 (Minn. App. 1988).  In addition, appellant acknowledged this responsibility while serving as president of The Groves Board of Directors from 1994 through 1997 when she addressed a letter to new homeowners stating:

I want you to be informed of some stipulations, so that they are clear to you as a new homeowner.  1) you will now own and maintain the unit you reside in and everything you see, beyond the front door is your responsibility to fix and maintain * * * .


As evidenced by the occupancy agreement and confirmed by appellant’s letter as president, the parties’ agreement required the unit owner to repair and maintain interior plumbing.  Because respondent had no duty to repair appellant’s plumbing, the district court did not err in granting summary judgment on appellant’s breach of contract claims for failing to make repairs affecting her hot and cold water supply.

2.         Failure to Allow Access to Information and Follow Bylaws

            Appellant also contends respondent breached their contract by failing to allow her to participate on the Board of Directors and follow the Bylaws.  In her complaint, appellant alleged:

Defendant, through its Board of Directors, failed and refused to provide public information to plaintiff to enable her to participate in meetings of the Board of Directors as a Board Member; Defendant failed to follow rules regarding notice in order to prevent Plaintiff from participating as a Board Member; Defendant failed to follow rules regarding the term of office of a Board Member; Defendant acted without either a Quorum in attendance or unanimous consent in writing to the action; Defendant failed to keep complete and accurate records; Defendant has failed to document all income and expenditures, as required by the rule; Defendant has failed to indemnify Plaintiff for actions taken by her as President of the Board of Directors.


In response to respondent’s specific interrogatory seeking a detailed description of the factual basis for her allegations, appellant simply verified a more personalized version of the same general allegations contained in her complaint. 

To resist summary judgment, the nonmoving party cannot rest on mere averments and must present specific evidence to establish a genuine issue for trial.  Minn. R. Civ. P. 56.05; DLH, Inc., 566 N.W.2d. at 71.  Here, appellant did not present any specific evidence to support her claim beyond the general allegations in her pleadings.  Therefore, the district court did not err in granting summary judgment on appellant’s claim that respondent breached the contract by failing to allow her access to information or follow the Bylaws.

B.         Gross-Negligence Claims

            Appellant alleges respondent was grossly negligent in failing to properly: (1) adjust water temperature within her unit; and (2) repair a water leak in the unit above hers.  Gross negligence has been defined as “negligence in a very high degree, or great or excessive negligence.”  State v. Bolsinger, 221 Minn. 154, 158, 21 N.W.2d 480, 485 (1946) (citation omitted). To prove negligence, a plaintiff must show: (1) a duty of care existed; (2) that duty was breached; (3) an injury was sustained; and (4) breach of the duty proximately caused the injury.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).  “A defendant is entitled to summary judgment as a matter of law when the record reflects a complete lack of proof on an essential element of the plaintiff’s claim.”  Id. (citation omitted).  While the question of negligence is usually inappropriate for summary judgment because it involves the jury’s assessment of reasonableness and causation, a district court may enter summary judgment when the undisputed material facts compel only one conclusion as a matter of law.  Abo El Ela v. State, 468 N.W.2d 580, 582-83 (Minn. App. 1991).

1.         Hot and Cold Water Supply

Here, the only evidence submitted in support of appellant’s claim that respondent was grossly negligent in causing her hot and cold water supply problems was the affidavit of plumber Richard Cormier.  Cormier opined that “the [water temperature] problem was clearly due to gross negligence on the part of [respondent].”  While Cormier may have specialized knowledge of plumbing, his opinion that respondent was grossly negligent is inadequate to resist summary judgment.  An expert’s opinion as to the ultimate legal issues is insufficient to defeat summary judgment.  See Potter v. Pohlad, 560 N.W.2d 389, 394-95 (Minn. App. 1997) (concluding that an expert’s opinion that corporate officer’s due diligence was “grossly negligent and reckless” did not create a fact issue precluding summary judgment), review denied (Minn. June 11, 1997).  Cormier’s affidavit did not provide evidence of respondent’s gross negligence; it merely expressed his conclusory opinion that respondent was grossly negligent.  Because Cormier’s expert affidavit is insufficient to raise a genuine issue of material fact to defeat summary judgment, the district court did not err in granting summary judgment on the water supply gross-negligence claim.

2.         Toxic Mold

            On July 9, 1999, the district court granted appellant’s motion to amend her complaint to include a claim for gross negligence.  On July 14, 1999, respondent provided the district court and appellant with a short letter brief addressing the propriety of summary judgment on appellant’s amended gross-negligence claims.  At a pretrial scheduling conference, appellant argued respondent’s short letter brief was an inadequate amendment to its summary-judgment motion.  Despite the district court’s July 16 instruction to formally file a notice of motion and motion to amend, appellant did not file her amended complaint until August 12, 1999, the date of the summary-judgment hearing.

At that hearing, appellant argued she did not understand that the hearing would address the toxic mold gross-negligence claim because respondent never formally amended its summary-judgment motion to address that amended claim.  The district court rejected appellant’s argument and explained that pretrial discussions resulted in an agreement to allow: (1) appellant to file her amended complaint; (2) respondent to file a responsive memorandum; and (3) appellant to file a reply memorandum by the date of the summary-judgment hearing.  Accordingly, the court approved respondent’s letter brief and allowed the parties to argue the propriety of summary judgment on all claims.

On appeal, appellant contends the toxic mold gross-negligence claim was not properly before the district court because respondent never formally amended its summary-judgment motion under Minn. R. Civ. P. 15.01.  We disagree.  Respondent’s short letter brief and the pretrial conference gave appellant adequate notice and the opportunity to respond to respondent’s summary-judgment motion on all claims.  Even if a summary-judgment motion is procedurally flawed, a district court may properly grant summary judgement where the motion was considered at a pretrial conference and the non-moving party had an ample opportunity to argue the existence of genuine issues of material fact.  See Wikert v. Northern Sand & Gravel, Inc., 402 N.W.2d 178, 182 (Minn. App. 1987) (stating summary judgement is proper “if there are no material facts in dispute, judgment is proper for one party as a matter of law, and there is no prejudice to the objecting party” resulting from inadequate notice under Rule 56.03), review denied (Minn. May 18, 1987).

Here, appellant did not offer any evidence or argument in opposition to respondent’s motion for summary judgment on her toxic mold gross-negligence claim.  Accordingly, the district court appropriately granted summary judgment on the additional gross negligence claim.  See Minn. R. Civ. P. 56.05 (explaining that non-moving party’s failure to present facts creating genuine issues for trial warrants entry of summary judgment against that party).  Appellant’s situation is the result of her own noncompliance with the district court’s instruction to timely file an amended complaint.

C.        Unjust Enrichment Claim

            Appellant claims respondent was unjustly enriched by collecting and retaining $225 in late fees assessed for untimely payments of her monthly mortgage and assessments.  Specifically, appellant contends it is morally wrong to allow respondent to charge late fees on untimely payments that were deposited in an escrow account while she pursued a claim against respondent in housing court.  A claim for unjust enrichment arises when a party gains a benefit illegally or unlawfully and may be based on failure of consideration, fraud, or mistake, or “situations where it would be morally wrong for one party to enrich himself at the expense of another.”  Midwest Sports Marketing, Inc. v. Hillerich & Bradsby of Canada, Ltd., 552 N.W.2d 254, 268 (Minn. App. 1996) (citation omitted), review denied (Minn. Sept. 20, 1996).  But, the existence of an express contract between the parties precludes an unjust-enrichment claim.  Sterling Capital Advisors, Inc. v. Herzog, 575 N.W.2d 121, 126 (Minn. App. 1998); see also Midwest Sports Marketing, Inc, 552 N.W.2d at 268 (affirming summary judgment on unjust-enrichment claim where valid contract governed parties and detailed compensation for performance of duties).

Here, a valid express contract existed between the parties.  Respondent’s bylaws, which are incorporated into the occupancy agreement, state that

there shall be a late payment charge of twenty-five ($25) against any Stockholder who is five (5) days or more in default with respect to any payment due to the Association if the Association issues a notice of default to such Stockholder pursuant to these Bylaws.


Because respondent was permitted to charge and collect the late fee pursuant to the association’s bylaws, appellant’s unjust-enrichment claim is unsuccessful.  The district court properly granted summary judgment on appellant’s unjust-enrichment claim.

D.        Defamation Claim

            Appellant contends statements made by: (1) Suzanne Loiacono (Loiacono) during a Groves Board of Directors meeting; and (2) Loiacono and Joanne Murphy (Murphy) throughout respondent’s buildings support her claim for defamation against respondent. Because appellant concedes Murphy was not a member of the Groves Board of Directors and “merely mentioned to show republication,” we need not address her defamation claim with regard to Murphy.  A defamation claim requires the plaintiff to establish

that the alleged statements were made, that they were communicated to someone other than herself, that they were false, and that, as a result, her reputation was harmed.


Bersch v. Rgnonti & Assocs., Inc., 584 N.W.2d 783, 788 (Minn. App. 1998) (quoting Ferrel v. Cross, 557 N.W.2d 560, 565 (Minn. 1997)), review denied (Minn. Dec. 15, 1998).  Because she presented evidence that Loiacono never signed a formal written resignation, which was required under the association’s bylaws, appellant contends respondent bears the burden of proving Loiacono was not a member of the association’s Board of Directors at the time the statements were made.  We disagree.

Appellant has the affirmative duty of showing Loiacono made the statements while she was a member of the board.  See Foley v. WCCO Television, Inc., 449 N.W.2d 497, 500 (Minn. App. 1989) (explaining that the plaintiff bears the burden of proving each element in a defamation claim), review denied (Minn. Feb. 9, 1990). Appellant did not present evidence showing Loiacono was a board member on June 30, 1997, the date of the alleged defamatory statements.  Therefore, the district court did not err in concluding no genuine issue of material fact existed and granting summary judgment in favor of respondent on appellant’s defamation claim.


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