This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Sunrise International Leasing Corporation,

d/b/a Sunrise Leasing Corporation,





Dedicated Media, et al.,



Filed October 1, 2004


Willis, Judge


Hennepin County District Court

File No. DJ 03-1204



David K. Nightingale, Scott A. Lifson, Jeanne M. DeMars, Bernick and Lifson, P.A., 5500 Wayzata Boulevard, 1200 The Colonnade, Minneapolis, MN  55415-1270 (for respondent)


Richard T. Thomson, Ralph V. Mitchell, Lapp, Libra, Thomson, Stoebner & Pusch, Chtd., 2500 One Financial Plaza, 120 South Sixth Street, Minneapolis, MN  55402 (for appellants)


            Considered and decided by Randall, Presiding Judge; Willis, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N


            On appeal from summary judgment in this equipment-lease dispute, appellant argues that the district court erred by granting summary judgment to respondent lessor, claiming that appellant’s affidavit challenging respondent’s claims alone is sufficient to raise a genuine issue of material fact.  Because appellant provided no support for the assertions of his affidavit, we conclude that the district court did not err by granting summary judgment to respondent, and we affirm.


            On December 27, 1999, appellant Martin Kau Chang, d/b/a Dedicated Media, entered into a master lease agreement with respondent Sunrise International Leasing Corporation, by the terms of which Chang leased business equipment from Sunrise.

            Between December 28, 1999, and September 1, 2000, Sunrise delivered business equipment to Chang pursuant to a master lease agreement and three equipment schedules—#72009553AA, #72009553AC, and #72009553AD (schedules AA, AC, and AD).  The lease of equipment described on each schedule is subject to the terms and conditions of the master lease agreement.  At all relevant times, title to the equipment remained with Sunrise.

            On November 6, 2002, Sunrise sent Chang notice that he was in default of the master lease agreement.  Chang failed to cure the default within the ten-day period provided for in the master lease agreement and failed either to return or to pay for the equipment.

            On January 17, 2003, Sunrise sued Chang, alleging that Chang had defaulted on his payment obligations under the terms of the master lease agreement and requesting damages in the amount owed to Sunrise under Chang’s lease agreement and a judgment in replevin for the leased equipment, which was still in Chang’s possession.  In his answer, Chang admitted signing the master lease agreement and receiving the equipment listed on schedules AA, AC, and AD, but he denied owing the amount claimed by Sunrise.

During discovery, Sunrise served Chang with a request for the production of documents.  Nothing in the court file suggests that Chang ever formally responded to the request, but there is a suggestion that the request resulted in the production only of certain of Chang’s bank records from irrelevant time periods.  Sunrise also served Chang with an interrogatory that requested identification of the documents that Chang intended to introduce as exhibits at trial.  Chang responded that he had not yet determined what documents he intended to introduce at trial, and that response was never supplemented.

            Sunrise subsequently moved for summary judgment.  In considering the motion, the district court had before it (1) a copy of the master lease agreement and schedules AA, AC, and AD; and (2) an affidavit of Sunrise’s collection manager, Kevin Burns, stating that Chang owed $107,513.31 on the lease agreement with Sunrise and that the fair market value of the leased equipment in Chang’s possession was $49,242.10; attached to the affidavit is a balance summary for Chang’s lease account with Sunrise.

In response, Chang filed an affidavit, unaccompanied by any documentary support, in which he contested the amount claimed by Sunrise.

In November 2003, the district court granted Sunrise’s motion for summary judgment and ordered the entry of judgment for Sunrise in the amount of $171,116, which included the fair market value of the leased equipment, unless Chang either returned or replaced the leased equipment within 30 days.  When the equipment was not returned or replaced, judgment was entered on January 20, 2004.[1]  This appeal follows.


            On appeal from summary judgment, the court asks two questions:  (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  We review the evidence in the light most favorable to the party against whom summary judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

            Chang argues that his affidavit filed in opposition to Sunrise’s summary-judgment motion raises fact issues that preclude summary judgment.  In that affidavit, Chang asserts, inter alia, that (1) Sunrise failed to credit certain payments that Chang claims to have made, and, thereby, Sunrise miscalculated the amount that Chang owes under the master lease agreement; (2) Chang made a written request, through a third party, to exercise an option to purchase the equipment leased from Sunrise; and (3) Sunrise overstated the fair market value of the equipment in Chang’s possession.  Chang provided no documents to support any of these assertions. 

            Summary judgment is appropriate when reasonable persons could not draw different conclusions from the evidence presented.  See DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).

[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.  A genuine issue for trial must be established by substantial evidence.  Id. at 69-70.  And “the party resisting summary judgment must do more than rest on mere averments.”  Id. at 71.

            Chang relies on Buffalo Ins. Co. v. United Parking Stations, Inc., 277 Minn. 134, 152 N.W.2d 81 (1967), to support his contention that his affidavit alone is sufficient evidence to establish genuine issues of material fact.  Buffalo Ins. arose from the trial of a subrogation claim in which the insurance company sought to recover the damages that it paid to its insured for the theft of the insured’s automobile from defendant’s parking lot.  277 Minn. at 134-35, 152 N.W.2d at 82.  Rather than introducing cancelled checks, the insurance company attempted to prove its damages through the trial testimony of its insured, who testified to the amount he had been paid.  Upon a motion by the defendant, the district court dismissed the case on the ground, inter alia, that the insurance company had failed to prove the amount to which it could be subrogated because it had not introduced the checks that it issued to its insured.  Id. at 137-39, 152 N.W.2d at 83-84.  The supreme court reversed, concluding that while cancelled checks might have been the most conclusive evidence of payment, the insured’s testimony that his claim was paid in full was sufficient to create a fact issue that permitted the case to be decided on the merits.  Id. at 139, 152 N.W.2d at 84.

            Chang argues that, like the insured’s sworn testimony at trial in Buffalo Ins., his affidavit is a statement under oath that creates fact issues.  In Buffalo Ins., the supreme court concluded that the testimony of a non-party that he received payment from the insurance company in a particular amount was sufficient to create a fact issue regarding the amount that the insurance company paid.  Id.  Chang argues that his affidavit, given as a party opposing summary judgment, should have the same effect.  We disagree.  This is a case that would be proved or disproved largely, if not entirely, by documentary evidence.  To accept Chang’s argument would be to hold that in such a case a party can defend against summary judgment merely by submitting an affidavit denying the moving party’s claims without offering any documentary support.  We refuse to do so.

            Chang claims that he made payments that were not credited by Sunrise.  He did not produce in discovery or with his affidavit any cancelled checks or bank records evidencing such claimed payments.  In fact, at the hearing on the summary-judgment motion, Chang’s counsel argued that “the fact that they don’t have record of receiving it, and we don’t have, at this point, record of sending it, doesn’t necessarily mean it wasn’t sent and that it wasn’t received.”  And while Chang claims in his affidavit that he made a written request, through a third party, to exercise an option to purchase Sunrise’s equipment, he did not produce a copy of such a request.  Similarly, Chang’s affidavit contests Sunrise’s calculation of the fair market value of the equipment by raising issues of warranties and maintenance contracts without any citation to the record or documentary support.

            We conclude that under the circumstances here Chang’s affidavit alone was not substantial evidence that established genuine issues of material fact and that, on the record before it, the district court did not err by granting summary judgment to Sunrise. 



[1] We note that the district court’s supplementary order for the entry of judgment, dated January 20, 2004, ordered judgment for Sunrise in the amount of $117,116, apparently as the result of a typographical error, and it appears from the court file that judgment was entered in that amount.