This opinion will be unpublished and

may not be cited except as provided by

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






Jerald Alan Hammann,





Schwan’s Sales Enterprises, Inc.,



Filed October 30, 2001


Kalitowski, Judge


Hennepin County District Court

File No. 005780


Jerald Alan Hammann, 3131 Excelsior Blvd., Suite 91, Minneapolis, MN 55416 (pro se appellant)


Randy A. Sharbono, Schwan’s Sales Enterprises, Inc., Law Department, 115 West College Drive, Marshall, MN 56258 (for respondent)


            Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Klaphake, Judge.

U N P U B L I S H E D   O P I N I O N


            Pro se appellant Jerald Hammann contends the district court erred by considering respondent’s motion for summary judgment because he did not receive timely notice of the motion and he had not completed his discovery.  Hammann also contends the court erred in granting summary judgment on (a) his claim of breach of covenant of good faith and fair dealing; (b) his claim of breach of contract; (c) his claim of intentional misrepresentation; (d) his claim of false representation under Minn. Stat. § 181.64 (2000); and (e) his claim of unfair discriminatory practices under Minn. Stat. § 363 (2000). We affirm.




            Hammann argues the district court erred in proceeding with the motion for summary judgment because (1) he did not receive timely notice of the motion for summary judgment; and (2) he was prejudiced in his ability to respond to the motion because he was unable to finish his discovery.

            District courts have discretion in determining whether to continue a summary judgment motion for discovery.  Rice v. Perl, 320 N.W.2d 407, 412 (Minn. 1982).  But even if the district court erred, the proponent must show that it was materially prejudiced by the error before a new trial will be granted.  Northwestern Nat’l Life Ins. Co. v. County of Hennepin, 572 N.W.2d 51, 55 (Minn. 1997).

            The district court can modify the time limits governing the submission of relevant documents to opposing counsel.  Minn. R. Gen. Pract. 115.01(b).  Where a court in its discretion relaxes the timeliness rules, there is no jurisdictional defect if there is no prejudice to the parties.  Nowicki v. Benson Properties, 402 N.W.2d 205, 208 (Minn. App. 1987).  Here, the district court found no prejudice noting that Hammann had time to submit a lengthy memo and supplement arguing against the motion for summary judgment.  We agree.

            A party responding to a summary judgment motion may submit an affidavit explaining why it is unable to present sufficient proof to avoid summary judgment.  Minn. R. Civ. P. 56.06.  A party cannot raise an issue on appeal that was not presented to the trial court for consideration.  Thorp Loan & Thrift Co. v. Morse, 451 N.W.2d 361, 362-63 (Minn. App. 1990), review denied (Minn. Apr. 13, 1990).   

            Here, Hammann did not indicate that he needed information in order to respond to the summary judgment motion.  Moreover, he did not argue to the district court that his ability to oppose the motion for summary judgment was prejudiced, and he did not request a continuance to allow time to complete his discovery.  Because Hammann failed to raise the issue of prejudice or request a continuance at the district court, we conclude he is barred from making these arguments here. 


            Hammann contends the district court erred in granting summary judgment on his claim that respondent terminated him in bad faith.  He claims he was terminated so respondent could avoid paying him the annual employment bonus and profit sharing that he had earned.

            When deciding appeals from summary judgment, this court must consider whether there are any genuine issues of material fact and whether the lower courts erred in their application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The party that opposes summary judgment

may not rest upon the mere averments or denials of the adverse party’s pleading but must present specific facts showing that there is a genuine issue for trial.


Minn. R. Civ. P. 56.05.  A genuine issue for trial must be established by substantial evidence.  DLH, Inc. v. Russ, 566 N.W.2d 60, 69-70 (Minn. 1997) (quoting Murphy v. Country House Inc., 240 N.W.2d 507, 512 (1976)).

[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.


Id. at 71.

            Generally, Minnesota courts have declined to read an implied covenant of good faith and fair dealing into employment contracts.  Hunt v. IBM Mid Am. Employees Federal Credit Union, 384 N.W.2d 853, 858 (Minn. 1986).  But Hammann relies on Holman v. CPT Corp., 457 N.W.2d 740, 743-44 (Minn. App. 1990), review denied (Minn. Sept. 20, 1999), where the court held that an employees’ handbook modified the employment relationship to require good faith in discharge and that terminating an employee to avoid paying a commission constitutes bad faith.  However, Hammann cites no language in a handbook or elsewhere that requires good faith.  Moreover, his employment contract specifically states that “[e]mployee’s employment under this Agreement may be terminated at any time without cause * * * by giving thirty (30) days prior written notice to [e]mployee” and that the severance terms for termination-without-cause include,  “Fifteen Thousand and no/100 Dollars ($15,000.00) as full payment, compromise and settlement of all non-vested employment compensation, including non-vested [b]onus compensation not yet due [e]mployee * * *.”

            In addition, the contract clearly and unambiguously states that Hammann’s bonus vests and is earned at the end of the fiscal year and that he must be employed at that time.  Thus, we conclude the district court did not err in granting summary judgment to respondent on this claim.


            Hammann argues the district court erred in determining that because he failed to establish damages, respondent was entitled to summary judgment on his claim that respondent breached his employment contract by failing to provide him information and materials as required in the contract.  We disagree. 

            A plaintiff may not recover for breach of contract without showing damages resulting from the breach.  Lipka v. Minnesota Sch. Employees Ass’n, Local 1980, 537 N.W.2d 624, 631 (Minn. App. 1995), aff’d, 550 N.W.2d 618 (Minn. 1996).  The measure of damages for breach of an employment contract is the amount of compensation which an employee would have received had the contract been carried out.  Gilmore v. Control Data Corp., 442 N.W.2d 835, 838 (Minn. App. 1989).  See also Zeller v. Prior Lake Public Schools, 259 Minn. 487, 493, 108 N.W.2d 602, 606 (1961).

            Here, although Hammann received the salary provided for in the contract he seeks additional compensation because of the alleged breach.  But the rule of damages for breach of contract is to restore the party harmed by the breach to as good, but no better position than he would have been in, had the contract been fully performed.  Soules v. ISD No. 518, 258 N.W.2d 103, 106 (Minn. 1977) (citing 5 Corbin, Contracts, § 1039).  We conclude that summary judgment is appropriate on this claim because Hammann failed to present evidence that the alleged breach placed him in a worse position than if the contract had been fully performed.


            Hammann argues the district court erred in granting summary judgment on his claim of intentional misrepresentation.  We disagree. 

            To survive a motion for summary judgment for a claim of intentional misrepresentation, Hammann must prove his claim with substantial evidence and specific facts.  Caselaw establishes a high threshold of proof for such a claim.  Vandeputte v. Soderholm, 298 Minn. 505, 507-08, 216 N.W.2d 144, 146 (1974); see also Minn. R. Civ. P. 9.02.  His evidence must do more than create doubt.  DLH, 566 N.W.2d at 71.  Substantial evidence is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.  Hazelton v. Comm’r of Dep’t of Human Servs., 612 N.W.2d 468, 471 (Minn. App. 2000).

            Here, Hammann’s summary judgment motion did not include any evidence other than his own testimony.  “The party resisting summary judgment may not simply rest on its pleadings, but must produce affirmative evidence to show an issue of material fact.”  Brookfield Trade Center, Inc. v. County of Ramsey, 609 N.W.2d 868, 874 (Minn. 2000) (citation omitted).  Further, Hammann does not cite any facts from the record that support his assertions.  See Gunderson v. Harrington, 619 N.W.2d 760, 764 (Minn. App. 2000) (holding appellant must show that there are facts in the record giving rise to a genuine issue for trial to overcome summary judgment), aff’d, 632 N.W.2d 695 (Minn. 2001).  Hammann contends respondent’s vice president knew the division would shut down when he made positive statements about the division’s future.  He acknowledges that his only evidence is his opinion and a coworker’s belief that the vice president wanted to discontinue the products in Hammann’s division.  Notwithstanding his admission that respondent had valid reasons for its actions, Hammann argues that the chain of events creates an inference of misrepresentation sufficient to avoid summary judgment.  We disagree.

            It is not sufficient that the evidence gives rise to an inference that Hammann’s theory was possible; that inference must be reasonable in light of the competing inferences.  See Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 588, 106 S. Ct. 1348 (1986) (holding that the nonmoving party had to show that the inference of conspiracy was not merely possible, but reasonable).  We conclude the district court properly determined that Hammann failed to present an issue of fact concerning his misrepresentation claim.  


            Hammann argues the district court erred in granting summary judgment on his claim that respondent made false representations concerning his compensation in violation of Minn. Stat. § 181.64 (2000).  We disagree.

            Hammann claims the representation that he would receive “peer level” compensation was false.  But he acknowledges that nobody told him his compensation would be equal to that of other directors and that he never inquired as to what his salary would be.  To survive a motion for summary judgment, Hammann must do more than rest on mere averments.  DLH, 566 N.W.2d at 69-71.  He must provide substantial evidence.  Id.  Because Hammann failed to provide evidence, the district court properly granted summary judgment on this claim.  


            Hammann argues the district court erred in granting summary judgment on his age discrimination claim.  We disagree. 

            It is an unfair labor practice under the Minnesota Human Rights Act for an employer, except when based on a bona fide occupational qualification, to discriminate against a person because of age with respect to terms, upgrading, conditions, or privileges of employment.  Minn. Stat. § 363.03, subd. 1(2) (2000). 

            Hammann, who was 26 years old when his contract was terminated, offered as evidence two charts showing employees in positions of “director” who were three to seven years older than him who received greater severance pay.  But Hammann failed to submit evidence regarding job responsibilities, education, experience, or position in the company.  Nor, except for a statement that one of the individuals was hired around the same time, did he include evidence regarding length of employment.  We conclude the district court properly determined that Hammann failed to provide evidence sufficient to establish a fact issue on his age discrimination claim.