This opinion will be unpublished and

may not be cited except as provided by

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






Don W. Becker,





One Call, LLC,



Filed April 18, 2006


Worke, Judge


Hennepin County District Court

File No. CT 04-17578


Eric Nilsson, Nilsson & Associates, P.A., 8000 Flour Exchange Building, 310 Fourth Avenue South, Minneapolis, MN  55415; and


Roger A. Zahn, Furber Timmer Zahn, PLLP, 100 One Financial Plaza, 120 South Sixth Street, Minneapolis, MN  55402-1801 (for appellant)


Stephen L. Madsen, 190 Midtown Commons, 2334 University Avenue, St. Paul, MN  55114 (for respondent)


            Considered and decided by Dietzen, Presiding Judge; Wright, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            Appellant Don W. Becker, a former employee of respondent One Call, LLC, argues that the district court erred in granting summary judgment in favor of respondent and dismissing appellant’s claims for breach of contract and unpaid commissions on the ground that no contract for commissions existed between appellant and respondent.  Because we conclude that no genuine issue of material fact exists and the district court did not err in its application of the law, we affirm.


            “On an appeal from summary judgment, we ask 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).  There is no genuine issue of material fact when the evidence “merely creates a metaphysical doubt as to a factual issue[.]”  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  The evidence must be “sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.”  Id. “[T]he party resisting summary judgment must do more than rest on mere averments.”  Id.  “A defendant is entitled to summary judgment as a matter of law when the record reflects a complete lack of proof on an essential element of the plaintiff’s claim.”  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995). 

            The parties do not dispute that in April 2002 respondent hired appellant as an employee to sell and estimate job costs for respondent’s remodeling business.  Appellant eventually began managing projects for respondent.  In June 2003, respondent changed appellant’s employment status from that of an employee to that of an independent contractor.  Appellant continued to be paid $3,000 every two weeks, plus benefits.  Appellant alleges that he met with the president of the company in December 2003 to discuss shifting the focus of appellant’s energy to sales and to change his earnings to a pure commission-based plan.  According to appellant, the president accepted the idea and instructed appellant to write it up.  Appellant prepared a document entitled “Commission Agreement.”  It is undisputed, however, that the document does not bear signature lines and was never formally executed.  In March 2004, respondent terminated appellant and refused to pay his claim for commissions owed in the amount of $26,549.94.  Prior to the completion of discovery, respondent moved for summary judgment.  The district court granted respondent’s motion, finding that there was no express or implied acceptance of appellant’s proposed agreement.

            Appellant argues that a genuine issue of material fact exists regarding respondent’s acceptance of the proposed agreement.  When the relevant facts are not in dispute, the question of whether a contract exists is a matter of law, which this court reviews de novo.  Triple B & G, Inc. v. City of Fairmont, 494 N.W.2d 49, 53 (Minn. App. 1992).  A contract consists of an offer, an acceptance, and consideration.  Cohen v. Cowles Media Corp., 457 N.W.2d 199, 202 (Minn. 1990), rev’d on other grounds, 501 U.S. 663, 111 S. Ct. 2513 (1991).  Acceptance can be either express or implied.  Gorham v. Benson Optical, 539 N.W.2d 798, 800 (Minn. App. 1995).  Implied consent is manifested by circumstances rather than by words if the circumstances clearly indicate the parties’ intention.  Webb Bus. Promotions, Inc. v. Am. Elecs. & Entm’t. Co., 617 N.W.2d 67, 75 (Minn. 2000). 

            The district court concluded that no contract existed between appellant and respondent because there was no acceptance, either express or implied.  It is undisputed that there was no express acceptance of the proposed agreement.  The district court stated: “[t]he lack of express acceptance is found in the absence of Mock’s signature on the proposed contract” and concluded that appellant’s argument that respondent gave implied acceptance of the contract was not supported by the record.  The district court reasoned that respondent continued to pay and appellant continued to accept $3,000 every two weeks (the amount he was paid as a salaried independent contractor); therefore, appellant was aware that respondent had rejected the proposed contract.  The proposed “Commission Agreement” drafted by appellant does not provide that he would continue to receive $3,000 every two weeks as a draw against his total commissions.  Further, the president’s lack of communication to appellant regarding the proposed agreement does not equate to acceptance.  “Mere silence ordinarily does not amount to an acceptance; however, if the relationship between the parties is such that an offeror is justified in expecting a reply or the offeree is under a duty to respond, silence will be deemed an acceptance.”  W. Insulation Servs, Inc. v. Cent. Nat’l. Ins. Co. of Omaha, 460 N.W.2d 355, 358 (Minn. App. 1990).  There was no duty between appellant and respondent that would justify appellant to expect a reply from respondent, and respondent was under no duty to respond.

            Appellant’s argument rests on mere averments.  Because there is no genuine issue of material fact and no error was made in the application of the law, the district court did not err in granting summary judgment in favor of respondent.