This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2004).







Gateway Companies, Inc.,





Christopher Brevik d/b/a

Brevik & Associates,




Filed May 17, 2005


Hudson, Judge


Hennepin County District Court

File No. 03-5065


Cynthia L. Hegarty, Best & Flanagan, LLP, 225 South Sixth Street, Suite 4000, Minneapolis, Minnesota 55402 (for respondent)


Christopher E. Brevik, Brevik & Associates, 1224 Irvine Drive, Hanover, Minnesota 55341 (attorney pro se)


††††††††††† Considered and decided by Hudson, Presiding Judge; Schumacher, Judge; and Halbrooks, Judge.

U N P U B L I S H E D†† O P I N I O N


On appeal from a partial summary judgment, appellant argues that (1) the district court abused its discretion by refusing to consider appellantís untimely responsive documents; and (2) the district court erred by granting partial summary judgment because the record evidence does not establish that appellant was unjustly enriched as a matter of law.† Because appellantís responsive documents were untimely filed and because the record demonstrates that appellant unjustly benefited from his use of the computers at respondentís expense, we affirm.†


According to both respondent Gateway Companies, Inc. and appellant-attorney Christopher Brevik, appellant went to the Gateway Country Store in Roseville, Minnesota, in July of 1999 to purchase new computers for his law practice.† Respondentís sales representative provided appellant with a computer-generated printout itemizing the computers and components, listing the monthly rates for the various term leases, and showing a total value for the five computers and ancillary equipment to be over $11,000.† Appellant ordered the computers and ancillary equipment.† Appellant intended to enter into a lease agreement with respondent for the purchase of the computers and filled out the leasing application.† Appellant never executed a final lease agreement, but, due to computer error, Gateway inadvertently shipped the computers to appellant around July 21, 1999.† Appellant accepted delivery of the computers via UPS and received an invoice shortly after delivery reflecting a purchase price of $11,058.†

††††††††††† After placing several calls to respondentís technical support staff to obtain assistance with the computers and to inquire about obtaining certain replacement parts, appellant contacted respondent on January 28, 2000, to report that he had not received a lease agreement from respondentís leasing company.† Appellant received a fax that same day containing a 60-month lease agreement for the computers in appellantís possession.† Appellant did not sign this agreement, claiming that the terms were materially different than the terms offered in July 1999.† From January 2000 through mid-2001, the parties engaged in negotiations to reach a mutually acceptable purchase price.

††††††††††† Appellant contacted respondent on February 16, 2001, advising that he would like to return the computers.† Respondent refused acceptance.† Respondentís standard warranty provided a 30-day limited money-back guarantee, and the computers, which were then nearly two years old, had significantly depreciated in value.† The parties continued negotiations.† Respondent ultimately offered to accept $2,500 from appellant as a full and final resolution, but appellant insisted that the agreement include a written clause stating that respondent would not report this transaction adversely on appellantís credit report.† Respondent would not commit to that clause in writing.† Throughout this period, appellant continued to use the computers in his law practice.†

††††††††††† In August 2002, respondent filed a complaint alleging conversion, unjust enrichment, and account stated.† Respondent moved for summary judgment on all three counts in November 2003.† The district court refused to consider appellantís reply brief and documentation because both were untimely.† Appellant appeared for a summary judgment hearing on December 16, 2003.† The district court ordered appellant to return the computers by 2:30 p.m. on December 17, 2003.† Appellant failed to return all the computers, and respondent moved to find appellant in contempt.† The district court found that appellant was in contempt and entered a partial judgment awarding respondent attorney fees on January 15, 2004.

By order dated January 5, 2004, the district court dismissed respondentís conversion claim, denied respondentís motion for summary judgment with respect to the account-stated claim, and granted partial summary judgment as a matter of law on respondentís unjust-enrichment claim.† Shortly thereafter, respondent stipulated to a dismissal of the account-stated claim.† The district court held a jury trial on the issue of damages arising from appellantís unjust enrichment on June 2, 2004.† The jury returned a verdict awarding respondent $7,500.† The district court entered final judgment on July 12, 2004.† This appeal follows.

Respondent moved to dismiss this appeal on October 1, 2004.† By order dated November 16, 2004, this court concluded that appellant voluntarily satisfied the January 15, 2004 partial judgment awarding attorney fees without reserving the issue for appeal and dismissed the part of this appeal related to that judgment.†




††††††††††† Appellant challenges the district courtís refusal to consider his responsive brief and materials prior to its award of partial summary judgment on respondentís unjust-enrichment claim, arguing that the materials were timely filed.† A district courtís decision to sanction a party for failure to properly serve or file a dispositive motion will be upheld absent an abuse of the district courtís discretion.† Minn. R. Gen. Pract. 115.06.†

Appellantís responsive documents were untimely filed.† Respondent served its motion for summary judgment upon appellant after 5:00 p.m. on November 18, 2003.† The summary judgment hearing was scheduled for December 16, 2003.† Appellant was therefore required to serve and file his responsive documents no later than December 8, 2003, eight days prior to the hearing.† See Minn. R. Gen. Pract 115.03(b); Minn. R. Civ. P. 6.05.† The district courtís file stamp reflects that appellantís responsive documents were filed on December 9, 2003.† Appellantís affidavit is dated December 9, 2003.† Because appellant did not timely file his responsive documents, the district court did not abuse its discretion by refusing to consider them.†


††††††††††† Appellant next argues that the district court erred by granting partial summary judgment on respondentís unjust-enrichment claim.† In an appeal from summary judgment, this court reviews two determinations: whether a genuine issue of material fact exists, and whether an error in the application of law occurred.† Offerdahl v. Univ. of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1998).† This court reviews the evidence in the light most favorable to the non-moving party without deferring to the district courtís application of the law.† Id.† Summary judgment is proper ďwhen the nonmoving party fails to provide the court with specific indications that there is a genuine issue of fact.Ē† Thiele v. Stitch, 425 N.W.2d 580, 583 (Minn. 1988).††

In order to establish a claim of unjust enrichment, the claimant must show that another party knowingly received something of value to which he was not entitled and that the circumstances are such that it would be unjust for that person to retain the benefit.† ServiceMaster of St. Cloud v. GAB Bus. Servs., Inc., 544 N.W.2d 302, 306 (Minn. 1996).† An unjust-enrichment claim does not lie merely because one party benefits from anotherís efforts or obligations; it must be shown that a party was unjustly enriched in the sense that the term could mean illegally or unlawfully.† Custom Design Studio v. Chloe, Inc., 584 N.W.2d 430, 433 (Minn. App. 1998) (citations omitted), review denied (Minn. Nov. 24, 1998).† Unjust enrichment may be founded on failure of consideration, fraud, mistake, or ďsituations where it would be morally wrong for one party to enrich himself at the expense of another.Ē† Mon-Ray, Inc. v. Granite Re, Inc., 677 N.W.2d 434, 440 (Minn. App. 2004) (quotations omitted).†

††††††††††† Appellant argues that the district court erred in awarding summary judgment because the record lacks evidence of illegal or unlawful conduct.† We disagree.† The cause of action for unjust enrichment is one that ďcan be maintained whenever one man has received or obtained the possession of the money of another, which he ought in equity and good conscience to pay over.Ē †Klass v. Twin Cities Fed. Sav. & Loan Assín., 291 Minn. 68, 71, 190 N.W.2d 493, 494Ė95 (1971) (rejecting the proposition that there can be no recovery on the principle of unjust enrichment without a showing of fraud or mistake) (quotations omitted).† This court has consistently held that an unjust-enrichment claim can be based on failure of consideration, so long as one party is enriched at the expense of the other and that enrichment implicates moral and equitable concerns.† See, e.g., Mon-Ray, 677 N.W.2d at 440.†

††††††††††† We conclude that the record supports the district courtís determination that appellant was unjustly enriched because he failed to provide consideration for respondentís computers.† Appellant accepted delivery of respondentís computers, knowing that he had not executed a lease agreement and that the computers were worth over $11,000.† Then appellant used respondentís computers in his law practice for roughly four years while the parties negotiated new lease terms and/or a reduced purchase price without providing any payment to respondent.† Thus, appellant willfully benefited from respondentís omission.† Although appellant eventually attempted to return the equipment, the computers were nearly two years old and had depreciated in value.† Moreover, respondent was not obligated to accept return of the computers after 30 days under respondentís standard warranty.† The record demonstrates that appellant benefited from his use of the computers at respondentís expense and that appellantís enrichment was inequitable.† Accordingly, the district court did not err as a matter of law in ruling that appellant was unjustly enriched by his receipt and use of respondentís computers.†

††††††††††† Affirmed.