This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-796

Princeton Bank,

Respondent,

vs.

Cooperative Environmental Services, Inc.,

Appellant,

Donald Herbst,

Appellant,

Douglas A. Marshall,

Appellant.

Filed February 4, 1997

Affirmed

Parker, Judge

Mille Lacs County District Court

File No. C694417

Jeffrey R. Ansel, Winthrop & Weinstine, P.A., 3200 Minnesota World Trade Center, 30 East Seventh Street, St. Paul, MN 55101 (for respondent)

Daryl J. Bergmann, Business Legal Services, 5025 West 102nd Street, Bloomington, MN 55437 (for appellant Cooperative Environmental Services)

Donald A. Herbst, 13690 25th Street Northeast, Foley, MN 56329 (appellant pro se)

Douglas A. Marshall, 9795 18th Street, Princeton, MN 55371 (appellant pro se)

Considered and decided by Willis, Presiding Judge, Parker, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

PARKER, Judge

Appellants Cooperative Environmental Services, Inc. (CES), Donald Herbst, and Douglas Marshall challenge a trial court order denying their motions to amend the pleadings and to "reconsider" an order granting summary judgment in favor of respondent Princeton Bank. Concluding that CES, Herbst, and Marshall's failure to repay the bank constituted a default and a breach of contract and that Herbst was not entitled to conduct additional discovery, the trial court dismissed appellants' counterclaims and granted summary judgment in favor of the bank. We affirm.

D E C I S I O N

On appeal from summary judgment, we ask "whether there are any genuine issues of material fact" and "whether the lower courts erred in their application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Summary judgment shall be rendered "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to a judgment as a matter of law." Minn. R. Civ. P. 56.03. However, summary judgment is inappropriate if reasonable people could draw different conclusions from the evidence presented. Illinois Farmers Ins. Co. v. Tapemark Co., 273 N.W.2d 630, 633 (Minn. 1978). "[T]he reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

1. CES argues that the trial court's grant of summary judgment was in error or, at least, premature. CES contends that the trial court's refusal to allow Herbst to represent CES interfered with their right to self-representation. CES claims that, as a nonprofit corporation, it is not required to have the representation of an attorney as required by Minn. Stat. § 481.02, subd. 2 (1994). CES argues, therefore, that the trial court's refusal to allow Herbst to proceed on its behalf prejudiced its case because it was precluded from conducting discovery.

Minn. Stat. § 481.02, subd. 2, provides, in part:

No corporation, organized for pecuniary profit, * * * shall maintain, or conduct, or defend, except in its own behalf when a party litigant, any action or proceeding in any court in this state * * *.

Absent evidence to show that Herbst was an attorney qualified to represent CES, the trial court struck Herbst's motion to compel discovery and informed Herbst that the matter could not proceed until CES obtained representation by an attorney.

We conclude that the evidence is such that on the face of the trial court's order, dismissal of CES's claim was correct. CES complains that the trial court failed to apply the proper inferences under the statute to conclude that nonprofit corporations may represent themselves. However, we are not directed to any evidence to show that CES is a nonprofit corporation. Furthermore, we are directed to no evidence or legal authority to show that even if CES is a "Cooperative Association," how it would be exempt from complying with the provisions of Minn. Stat. § 481.02, subd. 2. Cooperatives may make a profit, and CES has not provided filing papers regarding any nonprofit status.

We have been directed to nothing in the record before the trial court to show that Herbst could represent CES and no showing to the trial court that CES was not organized for profit or could otherwise be excepted from the requirements of Minn. Stat. § 481.02, subd. 2. Even viewing the evidence, as we must, in the light most favorable to appellants, we cannot say that the trial court erred in refusing to allow Herbst, a non-lawyer, to represent CES in this matter.

2. CES also argues that the trial court erred in granting summary judgment because it presented ample evidence to show that a disputed issue of fact exists as to whether the bank is guilty of tortious interference and breach of fiduciary duty. CES contends that the bank made improper use of pollution clean-up refunds and interfered with their business relationships by disclosing sensitive financial information to the Minnesota Department of Commerce. CES argues, therefore, that the trial court's grant of summary judgment was at least premature. In the alternative, CES also claims that the bank's motion for summary judgment was untimely.

Summary judgment is appropriate when

a party * * * fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof * * *.

Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986).

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. * * * When a motion for summary judgment is made and supported as provided in Rule 56, an adverse party may not rest upon the mere averments or denials of the adverse party's pleading but must present specific facts showing that there is a genuine issue for trial.

Minn. R. Civ. p. 56.05. Summary judgment should be granted only when there is "a complete failure of proof" on any element that is essential to a party's claim. Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995) (citing Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2552).

A guarantee is an undertaking or promise to pay on the part of one person that is collateral to a primary obligation and that binds the guarantor to performance in the case of the default of the one primarily bound.

Baker v. Citizens State Bank of St. Louis Park, 349 N.W.2d 552, 557 (Minn. 1984). "[W]hen a director or shareholder extends his or her personal obligation to cover a corporate debt, a guarantee contract is created." Id. Where a contract is unambiguous on its face, parol evidence will not be allowed to alter the plain meaning of the contract terms. See Norwest Bank Minn. N.A. v. Midwestern Mach. Co, 481 N.W.2d 875, 881 (Minn. App. 1992) (explaining application of parol evidence rule), review denied (Minn. May 15, 1992).

The trial court found that CES failed to establish any disputed issues of fact requiring resolution by trial. The trial court found that Herbst and Marshall signed as guarantors of CES's indebtedness to the bank. No parol evidence could be used to alter this agreement. Thus, the trial court concluded that CES, Herbst, and Marshall's failure to pay the bank on the notes constituted a default and breach of contract.

The trial court then found that appellants at all times understood their relationship with the bank to be a debtor-creditor relationship. "Banks do not owe a special duty to counsel customers about a transaction unless special circumstances have created a fiduciary relationship." Karlstad State Bank v. Fritsche, 392 N.W.2d 615, 619 (Minn. App. 1986). To establish that a fiduciary relationship existed, it must be shown that the bank knew or had reason to know that trust and confidence was placed in the bank and that CES was depending on the bank to look out for its interests. Klein v. First Edina Bank, 196 N.W.2d 619, 623 (1972). Concluding that a debtor-creditor relationship was adverse by nature, the trial court properly determined that no special circumstances existed to create a fiduciary relationship between CES and the bank.

In its brief, CES alleges there are numerous fact issues in dispute, as well as a wealth of evidence in support of its claims. However, under Rule 56.05, CES is required to present specific facts that would establish a genuine issue for trial. On our review of the record, we observe that CES has not supported its allegations with admissible evidence as required by Rule 56.05. Although CES "disputes" the facts, it has failed to show evidence of unresolved material issues of fact precluding summary judgment.

We note that the trial court did not specifically address the timeliness of the bank's summary judgment motion; the trial court did, however, hear the motion. CES was then represented by an attorney and responded with counter-motions. It appears that during a telephone conference, the trial court indicated to the parties that dispositive motions were to be filed by early July 1995. The court failed to follow up with a written order, however. We observe that counsel for CES did not object to the timeline arranged by the court for the dispositive motions. Furthermore, CES appeared and participated in the resulting summary judgment proceeding without objecting to the validity of the hearing. We cannot say, therefore, that CES was prejudiced by the trial court's resolution of this matter.

3. Lastly, CES argues that the trial court erred in denying its motion "for reconsideration."

Minn. R. Civ. P. 60.02 provides, in part:

On motion and upon such terms as are just, the court may relieve a party or the party's legal representatives from a final judgment * * * for the following reasons: (a) Mistake, inadvertence, surprise, or excusable neglect; (b) Newly discovered evidence * * *; (c) Fraud * * *, misrepresentation, or other misconduct of an adverse party; (d) The judgment is void; (e) The judgment has been satisfied * * *; or (f) Any other reason justifying relief from the operation of the judgment.

Minn. R. Civ. P. 60.02(a)-(f). However, "[t]he rules of civil procedure do not authorize a motion for 'reconsideration,' nor does such a motion extend the time to appeal the underlying order or judgment." Carter v. Anderson, 554 N.W.2d 110, 113 (Minn. App. 1996), review denied (Minn. Dec. 23, 1996).

In its motion papers, CES attempted to move for new trial. However, because this action ended in summary judgment and there was no trial, the motion for new trial was a misnomer and misconceived. See Parson v. Argue, 344 N.W.2d 431, 431 (Minn. App. 1984) ("If there never was a trial * * * a motion for a 'new trial' is an anomaly and an order denying such a motion is not appealable."). We conclude, therefore, that the trial court properly denoted CES's motion as an attempted motion "for reconsideration." Under the Minnesota Rules of Civil Procedure, there is no such motion. Thus, the trial court's denial of CES's motion to reconsider was not error.

Affirmed.