This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (2000).







Transact, Inc., a Minnesota corporation,



Ryan Gambucci,





William Bruestle and Henry Bruestle

as personal representatives for the Estate of Margaret Bruestle,




Filed July 24, 2001

Affirmed; motion granted

Schumacher, Judge


Dakota County District Court

File No. C4007935



Ryan S. Gambucci, 14440 Round Lake Boulevard, Andover, MN 55304 (pro se appellant)


Ann C. O'Reilly, LeVander, Gillen & Miller, P.A., 633 South Concord Street, Suite 400, South St. Paul, MN 55075 (for respondents)



Considered and decided by Anderson, Presiding Judge, Randall, Judge, and Schumacher, Judge.



Appellant Ryan Gambucci challenges the adverse summary judgment in a dispute involving cancellation of a purchase agreement. Respondents William and Henry Bruestle (the Bruestles) moved to strike Gambucci's reply brief. We affirm summary judgment and grant the Bruestles' motion.


On May 30, 1999, the Bruestles entered into a purchase agreement with Transact, Inc. The agreement provided that the Bruestles would sell to Transact property located at 1470 Englert Road in Eagan, Minnesota. Further, by the date of closing, the Bruestles were to have paid pending special assessments and real estate taxes levied on the property. Finally, the agreement and its addenda contained warranties that the property would have "a right of access * * * from a public right of way" and that "[a]ll soils [would be] buildable [sic] without extraordinary correction." Subsequently, the parties twice signed addenda delaying the date of closing.

On March 25, 2000, the Bruestles served Transact with a notice of cancellation of the purchase agreement, stating that Transact had failed to make payment on or before the closing date. Transact informed the Bruestles that it had assigned its interest in the purchase agreement to Gambucci, at which point the Bruestles also served Gambucci with a notice of cancellation.

Transact and Gambucci brought an action seeking specific performance and declaratory judgment concerning the provisions of the purchase agreement. Although Transact and Gambucci stated in their complaint that they

have fully complied with all requirements of the Purchase Agreement * * * and are prepared and have offered to pay amounts due at closing under the terms of the Purchase Agreement,


there is no evidence that such a tender of the purchase price took place. The Bruestles moved for summary judgment. The parties agreed to stay proceedings on the notice of cancellation, instead opting to argue the Bruestles' motion for summary judgment.

The district court granted the Bruestles' motion for summary judgment, stating that it "is clear that [Transact and Gambucci] breached the contract by not tendering the purchase price."


Gambucci argues that the district court erred in granting summary judgment in favor of the Bruestles because there are questions of material fact concerning the Bruestles' contractual liability for existing assessments against the property, for the condition of the soil on the property, and for the alleged lack of access to the property.

A trial court's decision to grant summary 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 that either party is entitled to a judgment as a matter of law.


Minn. R. Civ. P. 56.03. The burden is on the moving party to show the absence of an issue of material fact and the reviewing court must view the evidence in the light most favorable to the nonmoving party. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

"Under general contract law, a party who first breaches a contract is usually precluded from successfully claiming against the other party." Carlson Real Estate Co. v. Soltan, 549 N.W.2d 376, 379 (Minn. App. 1996) (citing Space Ctr., Inc. v. 451 Corp., 298 N.W.2d 443, 451 (Minn. 1980)) (additional citation omitted), review denied (Minn. Aug. 20, 1996). Further, "[w]ithout first tendering performance, a party cannot justify [his own] nonperformance" by the other party's alleged breach. Bell v. Olson, 424 N.W.2d 829, 832 (Minn. App. 1988). Thus, if there exists no question of fact that Transact and Gambucci failed to tender the purchase price, then they have no claim against the Bruestles for breach of contract.

Here, the Bruestles presented to the district court an affidavit stating that neither Transact nor Gambucci had tendered the agreed-upon purchase price. Transact and Gambucci failed to produce evidence to the contrary; indeed, their motion in opposition to summary judgment does not mention any such tender. The only document suggesting that a tender took place is the complaint. But such unverified allegations in the pleadings are insufficient to defeat a motion for summary judgment. W.J.L. v. Bugge, 573 N.W.2d 677, 680 (Minn. 1998).

We hold that both Transact and Gambucci failed to produce evidence sufficient to create a genuine issue of fact as to whether they had tendered the purchase price by the agreed-upon closing date. Accordingly, the district court correctly granted summary judgment in favor of the Bruestles.

The Bruestles moved to strike portions of Gambucci's reply brief, asserting that the reply brief and supplemental appendix thereto contain matters outside the record on appeal. We note that in his reply brief Gambucci supplied a document that does not appear in the record as well as factual assertions that fall outside the record. Therefore, we grant the Bruestles' motion and strike Gambucci's supplemental appendix as well as all factual assertions contained in the reply brief relating to the supplemental appendix. See Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992) ("The court will strike documents included in a party's brief that are not part of the appellate record." (citation omitted)), aff'd, 504 N.W.2d 758 (Minn. 1993).

Affirmed and motion granted.