This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Karen E. Goetze,



Minnesota Recovery Bureau, et al.,


Filed February 16, 1999


Crippen, Judge

Hennepin County District Court

File No. C6-98-1527

Thomas J. Lyons, Jr., Consumer Justice Center, P.A., 1560 Beam Avenue, Suite A, Maplewood, MN 55109 (for appellant)

Mark A. Gwin, Andrea E. Reisbord, Cousineau, McGuire & Anderson, Chartered, 600 Travelers Express Tower, 1550 Utica Avenue South, Minneapolis, MN 55416-5318 (for respondents)

Considered and decided by Halbrooks, Presiding Judge, Crippen, Judge, and Mulally, Judge.[*]



Appellant challenges the trial court's summary dismissal of her wrongful repossession suit and denial of her motion to plead punitive damages. We affirm.


Appellant Karen Goetze leased a truck in May 1996. After she defaulted on her monthly lease payments, the finance company hired Minnesota Recovery Bureau (MRB), a privately-owned repossession company, to repossess the truck. On October 9, 1996 two MRB repossession agents went to appellant's residence and tried to repossess the truck. As an agent attempted to drive the truck from appellant's property, appellant's boyfriend confronted the agents with a loaded pistol. MRB's agents ceased the repossession and the truck remained on appellant's property.

Appellant brought this action against MRB, alleging wrongful repossession, trespass, and violation of the Fair Debt Collection Practices Act. During the pendency of the action, appellant moved for leave to amend her complaint to plead punitive damages. The trial court denied this motion and granted respondent's motion for summary judgement. This appeal followed.


1. Summary Judgment

On appeal from summary judgment, this court determines "whether there are any genuine issues of material fact" and whether the trial court erred in its application of the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988) (emphasis added). The evidence is to be viewed in the light most favorable to the party against whom the motion was granted. Id.

In her complaint, appellant alleged that the repossession agents "through the use of force/violence, broke the locked utility door of [appellant's] garage" and entered the garage while attempting to repossess the truck. The trial court decided that appellant's evidence was "simply not sufficient to convince any reasonable finder of fact that forced entry occurred."

In support of her allegation of forced entry, appellant presented two sets of photographs, allegedly of a damaged door leading into the garage. The first set of photographs was of a door that led into the house, not the garage. After this error was discovered, appellant submitted photographs of the correct door. But these photographs show no visible damage to the door. Appellant's allegation of forced entry is also contradicted by affidavits of her landlord and his repairman that the door leading into the garage has never been broken or needed repair.

As evidence of forced entry, appellant was left only with her own allegations and her boyfriend's deposition testimony that the door leading to the garage was damaged. But the simple existence of testimony is not sufficient to protect against summary judgment in all circumstances. In light of the imprecise evidence submitted by appellant, and her flawed offering of specific evidence of a forced entry, the trial court was entitled to grant summary judgment on the issue of use of force. See DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997) (a genuine issue of material fact must be established by substantial evidence); Whisler v. Findeisen, 280 Minn. 454, 456, 160 N.W.2d 153, 155 (1968) (summary judgment available when trial on the issues "would obviously be futile"); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct 2505, 2511 (1986) (no genuine factual issue "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party"); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356 (1986) (nonmoving party must "do more than simply show that there is some metaphysical doubt as to the material facts").

Appellant argues that the trial court incorrectly focused on forced entry and not the location of the truck prior to the repossession. We also find in appellant's brief the suggestion that a breach of the peace is possible even if the repossession agents entered the garage without using force. But respondent correctly points out that appellant did not raise these issues below, and at oral argument appellant acknowledged that she rests her case, as she did in the trial court, on the occurrence of a forced entry. This court will not review issues not raised below. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). The existence of conflicting evidence about the location of the truck is not sufficient to prevent summary judgment when appellant has based her entire theory of the case on the more specific and unsupported assertion that there was a forced entry. Because appellant has presented no viable evidence on the specific issue of forced entry, we affirm the trial court's summary judgment.

2. Punitive Damages

We review de novo the trial court's refusal to allow a party to amend a complaint to add a claim for punitive damages. Swanlund v. Shimano Indus. Corp., 459 N.W.2d 151, 155 (Minn. App. 1990), review denied (Minn. Oct. 5, 1990). The pleading is inappropriate where the motion and supporting affidavits do not reasonably allow a conclusion that clear and convincing evidence will establish that the defendant acted with willful indifference to the rights or safety of others. Id. at 154. Here, the trial court correctly held that there was insufficient evidence to allow a claim for punitive damages. There is nothing in the record suggesting clear and convincing evidence that MRB's repossession agents acted with willful indifference to the rights and safety of others.


[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. Art. VI, § 10.