Paula Mirare Overby, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0698

Paula Mirare Overby,
Appellant,

vs.

CitiMortgage, Inc.,
Respondent.

Filed December 18, 2017
Affirmed
Connolly, Judge

Dakota County District Court
File No. 19HA-CV-17-15

Paula M. Overby, Eagan, Minnesota (pro se appellant)

Thomas J. Lallier, Tessa A. Mansfield, Foley & Mansfield, PLLP, Minneapolis, Minnesota
(for respondent)

Considered and decided by Connolly, Presiding Judge; Schellhas, Judge; and
Stauber, Judge.*

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Pro se appellant challenges the district court’s grant of summary judgment in favor
of respondent . Appellant argues that: (1) there are genuine issues of material fact
concerning the existence of a settlement agreement, and (2) a settlement agreement existed
as a matter of law. We affirm.
FACTS
In March 2006, appellant Paula Overby executed a loan, secured by a mortgage lien
on a parcel of real property, in the amount of $63,000. Respondent CitiMortgage serviced
the loan. About four years later, appellant filed for relief under Chapter 7 of the bankruptcy
code and, as a result, her personal liability on the 2006 loan was extinguished, but the lien
on the property remained intact. See 11 U.S.C. § 727 (2012) (allowing debtor to discharge
personal liability in chapter 7 liquidation); 11 U.S.C. § 524(a)(1) (2012) (allowing for only
the “personal liability of the debtor” to be discharged).
On March 22, 2016, appellant made an offer to respondent to pay $2,000 in
exchange for respondent releasing the lien. Two days later, respondent rejected appellant’s
offer and made a counteroffer to release the lien for $15,199.11, which was 25 % of the
outstanding lien balance.
Appellant made two follow-up calls to respondent regarding this counteroffer. The
first call occurred on April 1, 2016. During this call, appellant was told to fax back a
written confirmation once she had received respondent’s written offer in the mail . The
second call occurred three days later, when respondent advised appellant that she co uld
3
send the $15,199.11 payment and respondent would release the lien within 90 days after
payment was posted. In her response letter, appellant noted that she attempted to orally
accept the offer on both April 1 and 5 , but also stated that she found the 90 -day release
period to be “unacceptable.” In the same letter, appellant made a voluntary offer of $9,000
to release the lien with the added condition that respondent release the lien within 30 days
of payment.
Respondent replied to appellant’s letter by rejecting her offer and explaining that
the “[l]ien release processing times come from the county not [respondent].” Respondent’s
letter also reaffirmed that it would accept $15,199.11 to release the lien on appellant’s
property.
Appellant commenced an action against respondent on April 18, 2016. In her
complaint, appellant alleged that respondent was “unlawfully attempting to collect a debt
that was discharged in bankruptcy by exaggerating the value of the property interest
represented by the lien,” and that respondent prevented release of the lien “by requiring 90
days to deliver a loan release in the property.” Appellant never alleged that a settlement
was formed with respondent, nor did she request damages for breach of contract or specific
performance.
Respondent moved for summary judgment. Appellant responded by arguing, for
the first time, that a va lid contract existed after respondent countered her initial offer by
asking for $15,199.11. But appellant did not assert that both parties agreed on the timing
of the lien release.
4
During the summary judgment hearing, appellant also asserted that respondent was
not cooperating with discovery because it gave her partially redacted call logs. Respondent
explained that the redacted parts were communications between its representatives and its
in-house counsel. The di strict court then clarified that the redactions extended only to
communications between “atto rneys and staff at [respondent],” which respondent
confirmed.
The district court granted respondent’s motion for summary judgment because
“[appellant] has failed to state that a valid settlement contract existed between the parties
to provide for a release of the mortgage.” This appeal follows.
D E C I S I O N
Summary judgment is appropriate when there are no genuine issues of material fact
and the moving party is entitled to judgment as a m atter of law. Minn. R. Civ. P . 56.03.
When reviewing a district court’s grant of summary judgment, the co urt of appeals
determines: (1) if there are any genuine issues of material fact; and (2) whether the lower
court erred in its application of the law. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.
1995). “In reviewing the record, we view the evidence in the light most favorable to the
party against whom summary judgment was granted.” Id. A genuine issue of material fact
does not exist when the party opposing summary judgment only presents evidence that
merely creates a metaphysical doubt as to a factual issue or evidence. Beecroft v. Deutsche
Bank Nat’l. Trust Co., 798 N.W.2d 78, 82 (Minn. App. 2011).
5
I. The district court did not err in granting summary judgment when no material
facts were in dispute.
Appellant argues that the distri ct court erred in granting respondent’s motion for
summary judgment because material facts relating to the agreement were in dispute. More
specifically, appellant claims that (1) “an agreement existed between her and [respondent]
at the offered price of $15,200 ”; (2) “additional proof of the agreement was contained in
the telephone records requested in discovery”; and (3) “such a record existed by reference
of the defendant.” Appellant also notes that respondent refused to respond to her discovery
request by claiming attorney -client privilege, and that the judge advised them that the
conversations between appellant and respondent are not covered under attorney -client
privilege.
The district court has considerable discretion in granting or denying discovery
requests. Montgomery Ward & Co. v. Ct y. of Hennepin, 450 N.W.2d 299, 305 (Minn.
1990). A decision will not be disturbed un less the district court abused its discretion,
exercised its discretion in an arbitrary or capricious manner, or based its decision on an
erroneous view of the law. Id. at 305-06. Appellant did not bring a motion to compel
discovery but she did request that the defendant provide “some proof” that the portions of
the call record should be redacted. Even assuming that appellant preserved the discovery
request issue for appeal, her argument fails.
The district court correctly noted that “[t]he privilege wouldn’t extend to
conversations that your client had with [appellant], but, rather, between your attorneys and
staff at [respondent].” Respondent represented that the only redactions were of
6
communications between respondent and its legal counsel and not communi cations
between appellant and respondent’s representatives. The district court then took the matter
under advisement and did not address the motion further. Appellate courts cannot assume
a district court erred in failing to address a motion, and silence on a motion is treated as an
implicit denial of the motion. Palladium Holdings, LLC v. Zuni Mortg. Loan Trust 2006 -
OA1, 775 N.W.2d 168, 177-78 (Minn. App. 2009).
The district court did not abuse its discretion in denying appellant’s request for
redacted information because it reached the only conclusion possible in light of the
evidence it was provided. Besides allegations that the call logs were improperly redacted,
appellant provides no evidence that respondent withheld any discoverable evidence or
improperly redacted attorney -client privileged information. The district court correctly
determined that there were no genuine issues of material fact related to the call logs.
II. The district court did not err in its legal conclusion.

Appellant argues that the district court erred in finding that she only conditionally
accepted respondent’s offer of settlement and then subsequently rejected the conditional
offer after a dispute arose regarding the timing of the lien release. When deciding a motion
for summary judgment, it is the district court’s sole function to determine whether genuine
factual issues exist, not to decide issues of fact. DLH, Inc. v. Russ , 566 N. W.2d 60, 70
(Minn. 1997). On a motion for summary judgment, the district court may not make factual
findings that requires it to weigh evidence. Id. There is a genuine issue of material fact
when the nonmoving party presents evidence that is “sufficiently probative with respect to
an essential element of the nonmoving party’s case to permit reasonable persons to draw
7
different conclusions.” Id. at 71. But, when material facts are not in dispute, the existence
of a contract is a question of law subject to de novo review. TNT Props., Ltd. v. Tri-Star
Developers, LLC, 677 N.W.2d 94, 101 (Minn. App. 2004).
The record reflects that there was no actual dispute as to the material facts contained
in the district court’s order. Rather, it appears that appellant is challenging the district
court’s conclusion that, as a matter of law, no valid contract was formed because her letter
deeming an essential term as “unacceptable” was a rejection and counteroffer . When the
record taken as a whole does not support a contract’s existence , summary judgment is
proper. See Gresser v. Hotzler , 604 N.W.2d 379, 382 (Minn. App. 2000) . The district
court was correct in concluding no contract existed as a matter of law.
Minnesota follows the mirror image rule and requires the acceptance of an offer to
be coextensive with the offer and to not introduce additional terms or conditions.
McLaughlin v. Heikkila, 697 N.W.2d 231, 235 (Minn. App. 200 5), review denied (Minn.
Aug. 24, 2005). Put another way, “[t]he offeror and offeree, alike, must express agreement
as to every term of the contract. The offeror does this in the offer; the offeree must do it in
his acceptance.” Markmann v. H.A. Bruntjen Co. , 249 Minn. 281, 289, 81 N.W.2d 858,
863 (1957) (quotation marks omitted).
Here, as the district court correctly noted, appellant called respondent to accept the
offer conditionally. She was told to fax back a written confirmation once she received the
offer.1 She called a few days later and was advised that she could sen d the settlement

1 Since the lien is an “interest in land” its release would fall under the statute of frauds. See
Minn. Stat. § 513.05 (2016).
8
amount to respondent and the lien would be released within 90 days of receiving the
payment. Appellant, in her letter to respondent, found this term to be “unacceptable.” This
letter was a clear rejection of respondent’s offer to settle and release the lien becaus e the
offeror and offeree did not agree to every term in the contract. See Gresser, 604 N.W.2d
at 384 (concluding that an acceptance that alters certain days that are material to the
contract is not an acceptance but rather a rejection and counter offer). Here, appellant
rejected respondent’s offer to pay $15,199.11 with a post-payment release date of 90 days,
then countered for a payment of $9,000 with a release date of 30 days from her payment
posting.
Appellant contends that she actually “accepted the [original] offer” and did not
make a “counteroffer to the agreed upon sum of $15,200.” However, she does not dispute
the underlying facts but rather disputes the district court’s legal characterization of those
facts. No party, including appellant, can purport to accept an offer but then reject a
condition of that same offer without the acceptance becoming a rejection and counteroffer.
Yet, this is precisely what happen ed when appellant stated that respondent ’s release time
was “unacceptable” to her. B ecause the material facts are not disputed and the re are no
errors of law in the district court’s ruling, summary judgment was properly granted in favor
of respondent.
Affirmed.