This opinion will be unpublished and

may not be cited except as provided by

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







M&I Marshall & Ilsley Bank,

a Wisconsin state banking corporation,





Scott A. Johnson,





 Scott A. Benson,



Filed December 20, 2004


Willis, Judge


Hennepin County District Court

File No. CT03016097


Thomas A. Keller, Kevin M. Busch, Philip J. Young, Moss & Barnett, P.A., 4800 Wells Fargo Center, 90 South Seventh Street, Minneapolis, MN  55402 (for respondent)


Mark J. Briol, Amy J. Ihlan, Briol & Associates, PLLC, 3700 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402 (for appellant)


            Considered and decided by Willis, Presiding Judge; Wright, Judge; and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N


            On appeal from a grant of summary judgment, appellant claims that the district court erred because there remain genuine issues of material fact and the district court abused its discretion by not granting appellant more time for discovery.  Because we find no error or abuse of discretion, we affirm.


            Scott Johnson and appellant Scott Benson are the sole shareholders of All Saint’s Brands, Inc. (“All Saints”), a wholesale distributor of alcoholic beverages.  In July 2002, All Saints executed a promissory note (“the note”), with a maturity date of April 30, 2003, to the order of respondent M&I Marshall & Ilsley Bank.  The parties contemporaneously executed a loan agreement, and Benson and Johnson executed personal guarantees of the note.  Under the guarantees, the bank has the right to collect either from Benson or Johnson without first seeking to collect from All Saints or another guarantor. 

In February 2003, All Saints was in default under the loan agreement, and the parties entered into a loan restructure agreement (“LRA”), which altered certain terms of the loan agreement, but did not change the maturity date of the note. When the note matured on April 30, 2003, the balance due was more than $400,000.

On August 5, 2003, the bank sued Benson and Johnson on their personal guarantees.  In their joint answer, Benson and Johnson admitted that All Saints was in default on the note but alleged that they did not know the exact amount that was due.  On September 25, 2003, the bank moved for summary judgment.  On November 6, 2003, Benson sought leave to file an amended answer and counterclaims.  The following day, the district court heard arguments on the bank’s motion for summary judgment and took the motion under advisement.  On December 22, 2003, All Saints filed a motion to intervene.  On December 31, 2003, the district court heard arguments on Benson’s motion to file an amended answer and counterclaims and on All Saints’ motion to intervene.  In February 2004, the district court granted summary judgment to the bank on Benson’s and Johnson’s guarantees, denied Benson’s motion to amend his answer and counterclaims, and granted All Saints’ motion to intervene.  This appeal follows.


            On appeal from summary judgment, this court must determine whether there are any genuine issues of material fact and whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  The reviewing court must view the evidence in the light most favorable to the non-moving party.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  “[T]he party resisting summary judgment must do more than rest on mere averments.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  A genuine issue for trial must be established by substantial evidence.  Id. at 69–70.  A non-moving party “may not rely upon mere general statements of facts contained in the pleadings or upon surmise and speculation as to what could be presented at trial.”  Bixler by Bixler v. J.C. Penney Co., 376 N.W.2d 209, 215 (Minn. 1985). 


Benson argues that summary judgment was inappropriate because the bank did not present evidence that All Saints was in default under the terms of the LRA.  But as the district court noted, the LRA did not change the maturity date of the note, and there is no dispute that the note was not paid in full on April 30, 2003.  Benson admitted in his answer that All Saints was in default under the note, and the bank sued Benson on his personal guarantee based on All Saints’ default under the note.  The district court did not err by finding that All Saints was in default.  


Benson also argues that summary judgment was inappropriate and evidence of default insufficient because the bank presented no evidence that any notices of default or demands for payment were made to All Saints or to either of the guarantors.  But the continuing guarantee that Benson signed explicitly waives his right to any notice of default or demand for payment, and it provides that the bank can collect from Benson without first trying to collect from All Saints or any other guarantor.  This is not a genuine issue of material fact that made summary judgment inappropriate.


Benson argues that there is a genuine issue of material fact regarding the amount due on the note, contending that the bank did not give a “clear, accurate itemization or accounting of payments made under All Saints’ line of credit.”  The bank produced two affidavits, one of which had the loan history attached as an exhibit, as evidence of the balance due on the note.  Based on this evidence, the district court found that the principal amount due on the loan at the time of its order was $388,695.65.

Benson contends that an attorney fee incurred by the bank in connection with an investigation related to All Saints’ account “may have been charged to All Saints’ loan account.”  But Benson points to no entry in the loan-history document that he contends represents an unauthorized addition to the loan balance. 

Benson also contends that there are genuine issues of material fact regarding the amount due on the note because of “numerous unexplained discrepancies” in the loan history.  Specifically, Benson points out that there are several instances in which an amount that appears in the “transaction amount” column of the loan-history document does not reduce the loan balance.  The bank explains that those transaction amounts, which appear to range from $411.58 to $2,030.30, were applied to interest rather than principal, and thereby they did not reduce the loan balance.  Benson offers nothing to refute the bank’s explanation. 

Once a motion for summary judgment has been supported, the non-moving party must present specific facts showing that there is a genuine issue for trial.  DLH, Inc., 566 N.W.2d at 69.  The non-moving party cannot avoid summary judgment “simply because there is some metaphysical doubt as to a factual issue.”  Bob Useldinger & Sons, Inc. v. Hangsleben, 505 N.W.2d 323, 328 (Minn. 1993).  We conclude that Benson has not shown a genuine issue for trial regarding the amount due on the note.


            Benson also argues that there are genuine issues of material fact regarding the defenses and counterclaims that All Saints may raise in its intervention because those defenses and counterclaims would offset any judgment against Benson under his guarantee.  The district court concluded that the bank was entitled as a matter of law to summary judgment on Benson’s personal guarantee; that the defenses and counterclaims identified by Benson belong to All Saints, not to Benson; that All Saints will have an opportunity to assert those defenses and counterclaims in intervention; and that if All Saints prevails on one or more of its claims against the bank, Benson and Johnson may seek indemnification from All Saints.  The record supports the district court’s determination.


            Finally, Benson argues that summary judgment was premature because he had not had a fair opportunity to conduct adequate discovery.  Benson served and received responses from the bank to interrogatories and document requests.  Benson did not formally request of the district court additional time for discovery before the district court ruled on the bank’s summary-judgment motion.  Benson merely stated in his brief in opposition to the bank’s motion that he needed additional time for discovery because most of the “crucial” information about the alleged default and the amount of the debt owing is in the bank’s possession.  Benson identified nothing that he hoped to discover from the bank’s records that he had not already received.  We conclude that the district court did not abuse its discretion by not allowing Benson additional time for discovery.


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