Patrick Takuanyi, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0362

Patrick Takuanyi,
Appellant,

vs.

Jorge Zepeda Gonzalez, Defendant,

Mobil Auto Rescue & Repair, LLC,
Respondent.

Filed January 22, 2019
Affirmed
Rodenberg, Judge

Dakota County District Court
File No. 19HA-CV-16-3691

Jon E. Paulson, Paulson Law Firm PLLC, Eagan, Minnesota (for appellant)

Wade T. Johnson, Keith J. Kerfeld, Tewksbury & Kerfeld, P.A., Minneapolis, Minnesota
(for respondent)

Considered and decided by Rodenberg, Presiding Judge; Hooten, Judge; and
Klaphake, Judge.


 Retired judge of the Minnesota Court of Appeals, serving by app ointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Patrick Takuanyi appeals from the district court’s s ummary judgment in
favor of respondent Mobil Auto Rescue & Repair, LLC (Mobil). Appellant argues that the
record reveals genuine issues of material fact that preclude summary judgment. We affirm.
FACTS
Appellant and Jorge Zepeda Gon zalez signed a written agreement , providing: “I
Jorge Zepeda Gonzalez, an auto body/paint technician, doing business as Mobil auto rescue
& repair acknowledge receiving (three thousand six hundred dollars) $3,600 from Patrick
Takuanyi to pay my rents in exchange to repair his seven vehicles.” The agreement states
that the $3,600 was “paid in full,” and identifies seven vehicles, by year and model, which
Gonzalez agreed to repair and de liver by the end of March 2015. The signature block
where Gonzalez signed the agreement identifies him as “shop owner.”
Gonzalez started, but never completed, repairs of the vehicles. Appellant sued
Gonzalez and Mobil, asserting si x causes of action: (1) conver sion, (2) civil liability for
theft pursuant to Minn. Stat. § 6 04.14, (3) breach of contract, (4) loss of business
opportunity, and (5) theft by conversion. Appellant alleged th at Gonzalez and Mobil are
jointly and severally liable for his damages.
Appellant served the summons and complaint on Gonzalez and Mob il. Gonzalez
made no appearance, but Mobil interposed an answer, after which appellant and Mobil
exchanged written discovery. Mob il is owned by Marshall Franzm an, who stated by
affidavit that he subleased one garage stall to Gonzalez. Fran zman’s affidavit said that

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Gonzalez was never a Mobil employee, that Gonzalez had complete control over the work
he performed and the space he rented from Mobil, and that Gonzalez was never authorized
to act as an agent of Mobil. Franzman’s affidavit also stated that Mobil had no agreement
with appellant to repair any vehicles.
Mobil’s attorney deposed Gonzalez. Appellant was not present f or that deposition
and moved the district court to suppress the Gonzalez depositio n, arguing that Mobil did
not properly notify appellant unde r Minn. R. Civ. P. 30.02(a). The rule requires a party
deposing a witness to give every other party reasonable written notice of the name of the
witness, the witness’s address, and the location of the deposit ion. Minn. R. Civ. P.
30.02(a). The district court granted appellant’s motion, reasoning that Mobil did not send
written notice via mail to appellant until four days before the Gonzalez deposition. Such
short notice, the district court reasoned, gave appellant (who was then pro se) insufficient
time to either seek legal counsel or prepare for the deposition.
Appellant obtained a default judgment against Gonzalez. Mobil moved the district
court for summary judgment dismissing appellant’s complaint against it, asserting that it is
entitled to judgment as a matter of law because appellant faile d to provide any evidence
that Mobil is liable to appellant under any theory of recovery. The district court found no
genuine issue of material fact a nd granted Mobil’s motion for s ummary judgment. It
concluded that the record allowed no conclusion other than that Gonzalez did not ow n
Mobil, did not have ability to enter into contracts on behalf of Mobil, was not an employee
of Mobil, and was not otherwise a person for whom Mobil would be liable for his tortious
conduct.

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This appeal followed.
D E C I S I O N
“The court shall grant summary judgment if the movant shows tha t there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of
law.”1 Minn. R. Civ. P. 56.01. “The fact that the nonmoving party i s unlikely to prevail
at trial does not warrant granting summary judgment.” Writers, Inc. v. W. Bend Mut. Ins.
Co., 465 N.W.2d 419, 422 (Minn. App. 1991). “The district court’s function on a motion
for summary judgment is not to decide issues of fact, but solel y t o d e t e r m i n e w h e t h e r
genuine factual issues exist.” DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997).
On appeal from a grant of summary judgment, we review de novo: “(1) whether
there exists a genuine issue of material fact; and (2) whether the district court erred in its
application of the law.” Bjerke v. Johnson , 742 N.W.2d 660, 664 (Minn. 2007). “[W]e
view the evidence in the light most favorable to the party against whom summary judgment
was granted.” Carlson v. Allstate Ins. Co. , 749 N.W.2d 41, 45 (Minn. 2008) (quotation
omitted).

1 The district court applied the former version of rule 56, whic h was recently “revamped”
to more “closely follow” the federal rules. Minn. R. Civ. P. 56 2018 advisory comm. cmt.
When promulgating amendments to rule 56, effective on July 1, 2 018, and applicable to
pending cases, the supreme court specifically indicated that am ended language on the
standard for granting summary judgment reflects recent Minnesot a caselaw. Order
Promulgating Amendments to Rules of Civil Procedure , No. ADM04-8001 (Minn.
Mar. 13, 2018). Because the legal standard is unchanged, we cite to the current version of
rule 56.01, even though the district court’s decision was issue d before the amended rule
took effect.

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I. The district court acted with in its discretion when it exclu ded the Gonzalez
deposition from its consideration on the summary-judgment motion.

Appellant argues on appeal that the district court should have considered the
deposition of Gonzalez in ruling on Mobil’s summary-judgment mo tion. He argues that
the district court’s failure to consider it was an abuse of discretion.
The Gonzalez deposition was suppressed as a result of appellant ’s motion. Cf.
Eisenschenk v. Eisenschenk, 668 N.W.2d 235, 243 (Minn. A pp. 2003) (“[A] party cannot
complain about a district court’s failure to rule in [the party ’s] favor when one of the
reasons it did not do so is because that party failed to provid e the district court with the
evidence that would allow the district court to fully address the question.”), review denied
(Minn. Nov. 25, 2003). Having successfully suppressed the Gonz alez deposition, the
original transcript of which was never filed with the district court and is not part of the
record, appellant cannot now argue that there is a fact issue to be found in that deposition.
“It is well settled that an appellate court may not base its decision on matters outside
the record on appeal, and that m atters not produced and receive d in evidence below may
not be considered.” Plowman v. Copeland, Buhl & Co. , 261 N.W.2d 581, 583 (Minn.
1977). Appellant does not argue on appeal that the district co urt erroneously suppressed
the deposition. And, as noted, the original deposition transcr ipt is not in the record.
Consequently, the district court properly declined to consider the Gonzalez deposition in
ruling on the summary-judgment motion.

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II. There are no genuine i ssues of material fact.
Appellant asserts that there is a genuine issue of material fact because the agreement
between appellant and Gonzalez represents that Gonzalez was acting as an agent for Mobil,
and Mobil’s responses to interr ogatories are contradictory to G onzalez’s deposition
testimony (which is not part of the record).
Summary judgment is appropriate when “the pleadings, deposition s , a n s w e r s t o
interrogatories, and admissions on file, together with the affidavits, if any, show that there
is no genuine issue of material fact and that either party is entitled to a judgment as a matter
of law.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
There is no record evidence that creates a genuine issue of material fact concerning
the status of Gonzalez; the only admissible evidence of his sta tus in the record is that he
rented a space from Mobil and is not Mobil’s employee or agent. As the district court
properly identified, appellant p resented no facts that Mobil to ok any action to convert
appellant’s property, stole appe llant’s property, or interfered with a business opportunity
lost by appellant. Franzman’s a ffidavit and Mobil’s responses to interrogatories are
consistent, and uncontroverted, in stating that Gonzalez was ne ver employed by, nor did
he have authority to enter into contracts on behalf of, Mobil.2
Appellant failed to provide suffi cient evidence to establish th at Mobil was a party
to the written agreement, and vicarious liability is not available based on actions in breach
of contract. Hagen v. Burmeister & Assocs., Inc. , 633 N.W.2d 497, 503 (Minn. 2001).

2 Appellant does not argue that Gonzalez had apparent authority to enter into contracts on
behalf of Mobil.

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Consequently, there is no evidence in the record from which Mobil could be directly liable
to appellant for any claims asserted in the complaint.
The district court addressed whether appellant presented sufficient facts to show that
there was an employee-employer relationship between Mobil and G onzalez that would
allow the case to proceed to trial on the issue of respondeat superior, or vicarious liability,
against Mobil.3 Under respondeat-superior principles, an employer may be vica riously
liable for torts committed by an employee acting within the course and scope of his or her
employment. Fahrendorff ex rel. Fahrendorff v. N. Homes, Inc. , 597 N.W.2d 905, 910
(Minn. 1999). Whether a worker is an employee or an independent contractor involves a
mixed question of law and fact. “Once the controlling facts ar e determined, the question
whether a person is an employee becomes one of law.” Jenson v. Dep’t of Econ. Sec., 617
N.W.2d 627, 629 (Minn. App. 2 000) (quotation omitted), review denied (Minn. Dec. 20,
2000).
The factors to be considered whe n distinguishing between an emp loyee and
independent contractor are: “(1) [t]he right to control the me ans and manner of
performance; (2) the mode of paym ent; (3) the furnishing of mat erial or tools; (4) the
control of the premises where the work is done; and (5) the rig ht of the employer to
discharge.” Guhlke v. Roberts Truck Lines, 128 N.W.2d 324, 326 (Minn. 1964). The most

3 Although appellant did not specifically plead vicarious liabil ity in his complaint, the
district court correctly considered the issue because the parti es argued the issue. See
Hagen, 633 N.W.2d at 501 (treating the respondeat-superior claim as if it had been pleaded
because the parties argued the issue before the district court); T.W. Sommer Co. v. Modern
Door & Lumber Co., 198 N.W.2d 278, 281 (Minn. 1972) (stating that issues litigated either
by express or implied consent are treated as if they had been pleaded).

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important factor for consideration is the employer’s right to control the means and manner
of performance. Id.
The record evidence here is limited. In response to written in terrogatories, Mobil
stated that Gonzalez leased a s pace from Mobil and operated his own business, did not
perform work on behalf of Franzman or Mobil, Mobil has not cred ited Gonzalez’s rent
payment in exchange for services p erformed by Gonzalez, and Gon zalez was never
employed by Mobil. Mobil was not aware that Gonzalez had held himself out to be an
employee of or affiliated with Mobil. Franzman, in his affidavit, stated that he subleased
a one-stall garage to Gonzalez on a month-to-month basis and Go nzalez had complete
control over the work he performed and the space he rented. Th is evidence provided by
Mobil is uncontroverted.
Appellant’s argument—that there a r e g e n u i n e i s s u e s o f m a t e r i a l fact precluding
summary judgment—fails for several reasons. First, the only evidence appellant provided
was the agreement between Gonzal ez and appellant that stated th at Gonzalez was “doing
business as Mobil auto rescue and repair.” Here, and in the absence of any record evidence
that Mobil adopted or endorsed that representation, that is ins ufficient to withstand
summary judgment. See Schroeder v. St. Louis County, 708 N.W.2d 497, 507 (Minn. 2006)
(stating that the nonmoving party must provide sufficient evide nce to permit reasonable
persons to draw different conclu sions on issues to which the no n m o v i n g p a r t y h a s t h e
burden of proof). Appellant could have deposed Gonzalez, Franzman, or others. He did
not.

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Second, in opposition to the motion for summary judgment, appellant only provided
general assertions that Gonzalez was an employee of Mobil. In opposing summary
judgment, “general assertions” ar e not enough to create a genui ne issue of material fact.
Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995).
Finally, appellant argues that t he suppressed Gonzalez depositi on contradicts the
written interrogatories and create s a genuine issue as to wheth er Gonzalez was a Mobil
employee. But evidence offered to support or defeat a summary judgment motion must be
admissible at trial. Hopkins by LaFontaine v. Empire Fire & Marine Ins. Co., 474 N.W.2d
209, 212 (Minn. App. 1991).
On this record, no reasonable factfinder could find that Gonzalez was an employee
of Mobil. Appellant failed to o ffer evidence sufficient for a reasonable factfinder to find
that Mobil was directly liable to appellant. The district cour t properly granted Mobil’s
motion for summary judgment dismissing appellant’s complaint. 4
Affirmed.

4 Appellant also argues that it was reversible error for the dis trict court to have stated that
appellant wrote the agreement betw een him and Gonzalez. But it was appellant who
alleged in his complaint that he was the party who wrote the ag reement, and no evidence
was offered that would contradict this assertion. At oral argu ment, appellant’s counsel
conceded that the record reflects that appellant wrote the agreement, and so claimed in his
complaint.