This opinion will be unpublished and

may not be cited except as provided by

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







Violet Denelsbeck,

o/b/o herself and others similarly situated,





Wells Fargo & Co.,

a Delaware corporation,

d/b/a Wells Fargo Bank, N.A.,




Filed September 17, 2002

Affirmed in part, reversed in part, and remanded

Klaphake, Judge


Hennepin County District Court

File No. CT012352


Edwin L. Sisam, Dorothy J. Buhr, Tammy P. Friederichs, Sisam & Watje, P.A., 7230 Metro Boulevard, Minneapolis, MN 55439-2128 (for appellants)


Richard T. Thomson, David A. Harbeck, Jenifer M. Ross-Amato, Lapp, Libra, Thomson, Stoebner & Pusch, Chartered, 2500 One Financial Plaza, 120 South Sixth Street, Minneapolis, MN 55402 (for respondent)


            Considered and decided by Anderson, Presiding Judge, Klaphake, Judge, and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Violet Denelsbeck brought this breach of contract action for herself and on behalf of others, alleging that respondent Wells Fargo Bank breached the terms of a certificate of deposit by changing the rate of interest paid on the certificate without giving her notice of the change.  After Wells Fargo moved for summary judgment, Denelsbeck sought leave to amend her complaint to add claims alleging that Wells Fargo engaged in a deceptive trade practice, Minn. Stat. § 325D.44 (2000), and made a false statement in advertising, Minn. Stat. § 325F.67 (2000).  The district court granted summary judgment to Wells Fargo and denied Denelsbeck’s motion to amend. 

            Because Denelsbeck failed to show that the proposed amendments would survive a summary judgment motion, we conclude that the district court did not abuse its discretion by denying her motion to amend and affirm on this issue.  Because Denelsbeck raises genuine issues of material fact regarding whether a substitute contract was formed and whether Wells Fargo provided notice as required by the contract, we reverse the grant of summary judgment on this issue and remand.


I.  Summary Judgment

            A district court’s grant of summary judgment will be affirmed if there are no genuine issues of material fact and either party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.  “Construction and effect of a contract present[ ] a question of law, unless an ambiguity exists.”  Trondson v. Janikula, 458 N.W.2d 679, 681 (Minn. 1990) (citation omitted).  Where there is ambiguity, construction of a contract is a question of fact for the jury.  Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 66 (Minn. 1979).  A contract is ambiguous if its language is “reasonably susceptible” to more than one interpretation.  Trondson, 458 N.W.2d at 681.

            Denelsbeck argues that when her original 1984 certificate of deposit was replaced by the First Minnesota notice in 1991, a substitute contract was formed that converted the certificate to a fixed, rather than variable rate certificate.  While acknowledging the issue of whether a substitute contract was formed, the district court chose not to address this issue, concluding that Wells Fargo provided adequate notice under any version of the contract.  This analysis, however, begs the question of which contract terms apply.

            Wells Fargo argues that the purpose of the First Minnesota notice, which Denelsbeck claims created a substitute contract notice, was primarily to relocate and renumber Denelsbeck’s investment following the merger of First Minnesota into Norwest and not to alter the terms of the CD.  It is true that parties must intend to create a contract, and where there is no intent, no contract is formed.  See Linne v. Ronkainen, 228 Minn. 316, 320, 37 N.W.2d 237, 239 (1949) (“The law does not make a contract when the parties intend none, nor does it regard an arrangement as completed which the parties thereto regard as incomplete.”) (quotation omitted)).  But determining the intent of the parties requires consideration of extrinsic evidence, which involves a fact issue appropriate for jury consideration.  Turner, 276 N.W.2d at 66. 

            Here, Denelsbeck destroyed the original certificate and substituted the First Minnesota notice.  Thereafter, Wells Fargo treated the contract as a fixed rate investment, by continuing to pay the initial interest rate upon renewal in 1991, instead of the then-current market rate.  The intent of parties to a contract can be inferred from their conduct.  See Johnson v. Quaal, 250 Minn. 154, 157, 83 N.W.2d 796, 798 (1957).  The conduct of these parties raises the question of intent.  More importantly, the First Minnesota notice, coupled with the parties’ conduct, creates an ambiguity that should be construed against the drafter of the document.  See Current Tech. Concepts, Inc. v. Irie Enters., Inc., 530 N.W.2d 539, 543 (Minn. 1995).

            We are troubled as well by the question of adequacy of the notice required by the contract.  If a jury finds that the First Minnesota notice functions as a substitute contract, the bank notice of impending maturity, containing only a non-specific reference to a method for determining market rates on the maturity date, may be inadequate under the language of the First Minnesota notice, which required a 15-day notice that the certificate will not be renewed at the earnings rate set forth on the face of the certificate. 

            Because genuine issues of material fact remain that are more properly decided by a jury, we conclude that the district court erred in granting summary judgment.

II.  Amendment


            Denelsbeck argues that the district court erred in refusing to permit her to amend her complaint to include additional causes of action.  A party may amend a complaint by leave of the court or by agreement of the other party, and “leave shall be freely given when justice so requires.”  Minn. R. Civ. P. 15.01.  The district court has broad discretion in deciding whether to permit an amendment and will be overturned only for an abuse of discretion.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). 

            A district court may properly deny a motion to amend where the non-moving party would be prejudiced by the amendment.  See Hughes v. Micka, 269 Minn. 268, 275, 130 N.W.2d 505, 510-11 (1964).  The court may also deny a motion to amend if the new cause of action would not survive a summary judgment motion.  Bebo v. Delander, 632 N.W.2d 732, 740 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001).  The reviewing court decides de novo whether a complaint raises a viable claim as a matter of law.  Anderson v. Minn. Ins. Guar. Ass’n, 534 N.W.2d 706, 709 (Minn. 1995).

            Denelsbeck cites Marks v. Shell Oil Co., 830 F.2d 68, 69 (6th Cir. 1987) to support her claim that the district court abused its discretion.  However, in Marks,the motion to amend was never considered.  Here, the district court accepted memoranda and specifically addressed the motion in its decision granting summary judgment.  See Network Communications v. Mich. Bell Tel. Co., 906 F.2d 237, 239 (6th Cir. 1990) (distinguishing Marks because court’s summary judgment memorandum clearly stated it intended to dispose of the motion to amend). 

            Denelsbeck sought to add causes of action under Minn. Stat. § 325D.44 (2000), alleging that Wells Fargo advertised an interest rate that it never intended to offer,[1] and under Minn. Stat. § 325F.67 (2000), alleging that Wells Fargo engaged in false and deceptive advertising.  The basis for the two causes of action was that the First Minnesota notice stated that the certificate would be renewed at the same rate, unless the bank gave 15 days’ notice.  Denelsbeck argued that the bank never intended to renew at the market rate and that the statement was therefore false and deceptive.

            As the district court noted, even if the First Minnesota notice guaranteed a certain rate, it was clear that the bank could alter the rate upon renewal with 15 days’ notice.    Further, the court noted that the purpose of the notice was to establish a mechanism for notice, rather than to act as an advertisement of a particular rate.  Thus, there is no false or deceptive statement on which to base either of these causes of action.  See LensCrafters, Inc. v. Vision World, Inc., 943 F. Supp. 1481, 1491 (D. Minn. 1996) (discussing elements of causes of action under Minnesota false advertising statutes).

            The district court therefore did not abuse its discretion in denying Denelsbeck’s motion to amend her complaint.

            Affirmed in part, reversed in part, and remanded.


[1] Denelsbeck is not specific as to which section supports her cause of action, but it appears to be Minn. Stat. § 325D.44, subd.1(9) (advertising services with “intent not to sell them as advertised”).