North Mill Equipment Finance, LLC, Respondent,

This opinion will be unpublished and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
A19-0975

North Mill Equipment Finance, LLC,
Respondent,

vs.

Gruz Boga, LLC, Defendant and Third Party Plaintiff,
Petro Siruk, defendant and third party plaintiff,
Appellant,

vs.

Trust Capital, LLC, third party defendant,
Respondent.

Filed May 26, 2020
Affirmed
Cochran, Judge

Hennepin County District Court
File No. 27-CV-17-7453

George Edward Warner, Jr., Warner Law, LL C, Minneapolis, Minnesota (for respondent
North Mill Equipment Finance, LLC)

Petro Siruk, Becker, Minnesota (pro se appellant)

Daniel Austin Beckman, Abigail Anne Pe ttit, Gislason & Hunte r, LLP, Minneapolis,
Minnesota (for respondent Trust Capital, LLC)

Considered and decide d by Segal, Presiding Judge; Ross, Judge; and
Cochran, Judge.

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U N P U B L I S H E D O P I N I O N
COCHRAN, Judge
On appeal from final judgment, appellant -guarantor Petro Siruk challenges the
district court’s grant of summary judgment a nd various rulings made in related contempt
proceedings. Appellant argues that the dist rict court erred by (1 ) proceeding without
“proving jurisdiction;” (2) granting the respondent-plaintiff’s motion under Minn.
Stat. § 565.23 (2018) for recovery of a truck; (3) holding appellant in contempt;
(4) granting summary judgme nt when genuine issues of material fact remained;
(5) denying appellant a jury trial; and (6) maki ng clearly erroneous factual findings in its
order dismissing his third-party claims under Minn. R. Civ. P. 41.02(b). We affirm.
FACTS
At the center of this dispute is a finance- lease transaction regarding a dump truck.
Appellant Petro Siruk is the managing member of Gruz Boga, LLC. Gruz Boga is in the
business of freight hauling and trucking. In 2016, Siruk made contact with a sales manager
from Trust Capital, LLC who assisted Gruz B oga with obtaining financing to acquire a
dump truck. With assistance from Trust Capital, Gruz Boga entered into a transaction with
EFS Credit Trust to lease a dump truck. EFS Credit Trust purchased a dump truck from a
vendor and then leased the dump truck to Gruz Boga. The lease disclaimed warranties and
provided that “lessor is leas ing the equipment to the lessee ‘as-is.’” Siruk personally
guaranteed the agreement. North Mill Equipment Finance LLC (North Mill) serviced the
agreements with Gruz Boga and Siruk (collectively, the defendants).

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In April 2017, North Mill sued the defendants. North Mill alleged that the
defendants defaulted on their obligations by failing to make required payments under both
the lease and guaranty. North Mill brought claims of breach of contract, unjust enrichment,
estoppel, and breach of the duty of good faith and fair dealing.
Initially, both the defendants retained the sa me attorney. The defendants filed an
answer that alleged that the dump truck was not in working condition. The defendants
alleged that they entered into the transaction based on representations that EFS Credit Trust
had inspected the dump truck and that it was in good working order. Because the dump
truck was allegedly not in go od working order, the defendants stopped making payments
required under the lease and guaranty. The defendants asserted several affirmative
defenses to North Mill’s claims. They also a sserted a counterclaim of civil conspiracy to
commit fraud, alleging that Trust Capital’s sales manager, acting as an agent of EFS Credit
Trust, represented that EFS Credit Trust would inspect the dump truck and would only
finance a truck that was in wo rking condition. The defendants also brought a third-party
complaint against Trust Capital, alleging that its sales manager falsely represented that EFS
Credit Trust had inspected the dump truck, and asserting claims of fraud and negligent
misrepresentation.
North Mill moved for an order for recovery of the dump truck prior to final judgment
pursuant to Minn. Stat. sections 565.21 (2018) and 565.23. North Mill argued that, because
it was likely to succeed on the merits of its underlying claims, the district court was required
by law to order Siruk to return the dump truc k. The district court granted the motion,
ordering the defendants to disclose the lo cation of the dump truck and authorizing the

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sheriff to seize the dump truck and deliver it to North Mill. The order indicated that if the
defendants did not disclose the location of the dump truck, the court would hold a
show-cause hearing to determine whether the defendants should be held in contempt.
The defendants did not disclose the location of the dump truck. Consequently, the
district court held a show-cause hearing. At the hearing, Siruk repeatedly refused to
disclose the location of the dump truck. The district court determined that Siruk was in
direct and constructive civil contempt for fa iling to comply with its order. The court
ordered that Siruk be confined for 180 days or until he disclosed the location of the dump
truck. There were several hearings in the contempt proceedings. During the course of the
contempt proceedings, Siruk fired his attorney , who also represente d Gruz Boga. Siruk
decided to proceed pro se. Eventually, the dump truck was located and North Mill took
possession of it pursuant to the district court’s order.
All parties moved for summary judgment. To support its motion, North Mill
submitted, among other doc uments, the contracts at issue and an affidavit indicating that
the defendants had failed to make payments required by the contract. Trust Capital
submitted an affidavit asserting that its sale s manager never made a representation about
the condition of the dump truck or that it w ould inspect to determine the condition of the
truck.1 To support his motion fo r summary judgment, Siruk filed a memorandum with a
lengthy narrative of his deali ngs with Trust Capital and its sales manager. Siruk alleged

1 The sales manager’s affidavit did, however , indicate that he discussed a limited “site
inspection” that would occur so lely to determine “that the truck matched the information
provided by the invoice.” The sales manager claimed that he advised Siruk that he should
find someone to “check the truck out.”

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that the sales manager assured him that Trust Capital would conduct a thorough inspection
of the dump truck to ensure that it was in good condition. Siruk later submitted a
declaration to further support his allegati ons that Trust Capital’s sales manager had
represented that the dump truck would be in good condition or inspected. Siruk claimed
to be representing both hims elf and Gruz Boga, despite th e district court’s previous
explanation that Gruz Boga, as a corporation, could not appear pro se.
The district court granted North M ill’s motion for summary judgment on its
breach-of-contract claims, dismissed the defendants’ counterclaims against North Mill, and
denied Trust Capital’s summary judgment motion. The dist rict court granted summary
judgment on North Mill’s breach-of-contract claim because there was no genuine issue of
material fact that the lease and guaranty were enforceable contracts and that the defendants
were in breach of their obligations. The district court dismissed the defendants’
counterclaims alleging conspiracy to commit fraud because the lease specifically provided
that the dump truck was being leased “as is.” Moreover, the defendants provided no
evidence that any employee at North Mill or EFS Credit Trust made a fraudulent
representation about the condition of the dump truck—Siruk alleged only that Trust Capital
employees made false representations. But the district court denied Trust Capital’s motion
for summary judgment because it determined that there was conflicting evidence regarding
whether Trust Capital’s sales manager fraudul ently or negligently represented that the
dump truck would be inspected and in good condition.
The defendants’ third-party claims against Trust Capital proceeded to trial. Gruz
Boga remained unrepresented and therefore did not appear. The only evidence that Siruk

6
produced at trial was Trust Capital’s sales manager’s testimony. But the sales manager
provided no testimony that he told Siruk th at the dump truck would be inspected for its
condition or that it was in working order. Trust Capital moved for a directed verdict. The
district court granted Trust Capital’s motion and later issued a written order dismissing the
defendants’ claims under Minn. R. Civ. P. 41.02(b). The district court expressly found that
Trust Capital did not make any representations about the condition of the dump truck.
After trial, Siruk filed a jury trial demand. He also filed a document that the district
court construed as a motion to reconsider its summary judgm ent order relating to North
Mills’ claims and its post-tria l order dismissing the defendants’ claims. Both North Mill
and Trust Capital applied for attorney’s fees, costs, and disbursements.
The district court denied Siruk’s posttr ial motions. It entered final judgment
awarding certain damages, attorney fees, an d costs and disbursements to North Mill and
Trust Capital.
Siruk appeals.
D E C I S I O N
Siruk’s appellate brief is particularly di fficult to follow. Se lf-represented litigants
“are generally held to the same standards as attorneys and must comply with court rules.”
Fitzgerald v. Fitzgerald , 629 N.W.2d 115, 119 (Minn. App. 2001); see also
Francis v. State, 781 N.W.2d 892, 896 (Mi nn. 2010) (a pro se l itigant “is held to the
standard of an attorney in presenting his appeal”). And while a self-represented litigant “is
usually accorded some leeway in attempting to comply with court rules, he is still not
relieved of the burden of, at least, adequate ly communicating to the court what it is he

7
wants accomplished and by whom.” Carpenter v. Woodvale, Inc., 400 N.W.2d 727, 729
(Minn. 1987). With these standards in mind, we address the arguments that we are able to
discern from Siruk’s brief. To the extent that we do not address arguments that Siruk has
attempted to raise, we conclude that Siruk has failed to meet his burden of adequately
communicating those arguments to this court.
We also note that Siruk relie s heavily on a “CD” that is outside the record to support
assertions throughout his brief. An appellate court “cannot base its decision on matters
outside the record on appeal and any matters not part of the record.”
Mitterhauser v. Mitterhauser, 399 N.W.2d 664, 667 (Minn. App. 1987). Consequently,
we do not consider Siruk’s factual assertions based solely on the information that is not
within the record.
Siruk appears to raise six issues: (1) whet her the district court lacked personal or
subject-matter jurisdiction (or failed to “prove” jurisdiction); (2) whether the district court
erroneously granted North Mill’s motion for re covery of the dump truck; (3) whether the
district court erred by holding Siruk in civil contempt; (4) whether the district court erred
in granting summary judgment to North Mill because a genui ne issue of material fact
existed regarding whether North Mill represente d or conspired to represent that it would
inspect the truck’s condition; (5) whether the district court denied Siruk his right to a jury
trial; and (6) whether the district court’s f actual findings in its order dismissing Siruk’s
third-party claims against Trus t Capital under rule 41.02 were clearly erroneous. We
address each issue in turn.

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I. Jurisdiction
Siruk challenges the district court’s jurisd iction over this matter, asserting that the
district court failed to “prov e” jurisdiction. But Siruk does not articulate any substantive
basis to support his challenge. In our review of the record, we detect no basis to question
either personal jurisdiction or subject-matter jurisdiction over this matter. North Mill
served its summons and complaint on Siruk a nd Gruz Boga, a Minnesota resident and a
Minnesota corporation. See Shamrock Dev., Inc. v. Smith , 754 N.W.2d 377, 382
(Minn. 2008) (indicating that effective se rvice of process establishes personal
jurisdiction).2 There is no doubt that the district court had subject-matter jurisdiction over
this breach-of-contract dispute. See Minn. Stat. § 484.01, subd. 1(1) (2018) (“The district
courts shall have original jurisdiction in . . . all civil actions within their respective
districts.”). We find no basis to reverse the district court on the grounds that it lacked
jurisdiction.
II. Order for Recovery of the Dump Truck and the Related Contempt Proceedings
Siruk raises issues relating to the orde r for recovery of the dump truck and the
contempt proceedings. We address these issues together and conclude that the issues are
moot.

2 We also observe that Siruk waived any ch allenge to personal jurisdiction by failing to
promptly raise the issue after bringing both counterclaims and a third-party complaint. See
Federal-Hoffman, Inc. v. Fackler , 549 N.W.2d 93, 95 (Minn. App. 1996), review denied
(Minn. Aug. 20, 1996) (“[T]o preserve a pe rsonal jurisdiction argument after asserting a
counterclaim in its answer, a responding party is required to act promptly in order that the
jurisdictional issue be timely decided.”).

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The district court ordered the defendants to return the dump tr uck to North Mill
under Minn. Stat. § 565.23. That statute allows a claimant to recover possession of
wrongfully held property before final judgment if the claimant demonstrates, among other
things, a “probability of success on the merits.” See Minn. Stat. § 565.23, subd. 3. The
district court issued the order for recovery of the dump truck base d on its determination
that North Mill was likely to su cceed on the merits of its clai ms. After the district court
issued its order, Siruk refused to return the dump truck to North Mill or to disclose its
location. Consequently, the district court held Siruk in contempt. Ultimately, North Mill
came into possession of the dump truck and succeed ed on the merits of its claims against
Siruk.
On appeal, Siruk argues that the district court erred in concluding that North Mill
was likely to succeed on the merits of its underlying claims and therefore erred in ordering
recovery of the dump truck under Minn. Stat. § 565.23. He also raises a number of
arguments in support of his position that th e district court erred when it held him in
contempt.
We will not review a contempt order if the contemnor purge s himself of the
contempt and the issue is moot. See Clement v. Clement , 204 N.W.2d 819, 819
(Minn. 1973). Siruk was released from confinement, the dump truck was located, and the
district court granted summary judgment to No rth Mill, allowing it to take possession of
the dump truck and sell it pursuant to the terms of the lease. The contempt issue is moot
because Siruk was purged of the contempt and our affirmance or reversal on the contempt
issue would have no impact on the merits of the controversy. See Obermoller v. Federal

10
Land Bank, 409 N.W.2d 229, 230-31 (Minn. App. 1987) (“An issue is moot . . . [w]hen the
affirmance or reversal of an order made in the course of the proceeding would make no
difference in respect of the controversy on the merits.” (quotation omitted)). For the same
reason, Siruk’s argument that the district cour t made an erroneous finding in its order for
recovery of the dump truck—that North Mill was likely to su cceed on the merits of its
claims—is also moot. North Mill was successful on the merits when it obtained summary
judgment. Again, our affirmance or revers al of the order for recovery under Minn.
Stat. § 525.23 would have no impact on the merits of the controversy. See id. We therefore
do not reach the merits of these arguments.
III. Summary Judgment
Siruk challenges the district court’s or der granting North Mill summary judgment.
His specific arguments are unclear. But after reviewing the record, we conclude that the
district court did not err in granting summary judgment.
A district court must grant summary judgm ent if the “movant shows that there is no
genuine issue as to any material fact and the movant is entitled to judgment as a matter of
law.” Minn. R. Civ. P. 56.01. “We review the grant of summary judgment de novo to
determine whether there are genuine issues of material fact and whether the district court
erred in its application of law.” Montemayor v. Sebright Prods., Inc. , 898 N.W.2d 623,
628 (Minn. 2017) (quotation omitted). To preclude summary judgment, a genuine issue of
material fact must be establis hed by substantial evidence. DLH, Inc. v. Russ ,
566 N.W.2d 60, 70 (Minn. 1997). We view the evidence in the “light most favorable to
the party against whom summary judgment was granted.” STAR Ctrs., Inc. v. Faegre &

11
Benson, L.L.P., 644 N.W.2d 72, 76-77 (M inn. 2002). “All doubts and factual inferences
must be resolved against the moving party.” Montemayor, 898 N.W.2d at 628 (quotation
omitted). Summary judgment is “inappropr iate when reasonable persons might draw
different conclusions from the evidence presented.” Id. (quotation omitted).
The district court granted summary judgm ent to North Mill on its breach-of-contract
claims because it determined that there was no dispute that (1) the lease and guaranty were
valid, and (2) the defendants were in default of the lease and guaranty. The district court
dismissed the defendants’ counterclaim ag ainst North Mill because (1) Siruk did not
submit any evidence to prove that North Mill represented that the dump truck was in good
condition, (2) Siruk did not submit any evidence to prove that Trust Capital was acting as
an agent of North Mill when its sales manager purportedly made fraudulent representations
regarding inspection and condition of the truck, and (3) the contract at issue specifically
indicated that the truck was to be leased “as is,” contradicting any claim by Siruk that North
Mill or EFS Credit Trust represented that the truck would be in good condition. Siruk does
not identify any evidence in the summary-judgment record to undermine the district court’s
determination that no genuine i ssues of material fact exist in connection to either North
Mill’s claims against Siruk or Siruk’s counterclaims against North Mill.
Siruk raises arguments regarding conversa tions he had with “Krista of North Mill”
and “Pam of North Mill.” “Pam” is referenced in Siruk’s summary judgment documents,
but it appears that the conversations that Si ruk had with “Pam” occurred after EFS Trust
Capital leased the dump truck to Gruz Boga, and therefore do not support Siruk’s allegation
that North Mill, which serviced the agreements with the defendants, made representations

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about the truck’s condition. In documents filed after the district court granted summary
judgment, Siruk referenced a conversation he had with “Krista,” alleging that “Krista” told
him that North Mill does a “careful thorough inspection on the equipment before they
proceed to finance.” But because Siruk failed to provide evidence of his conversation with
“Krista” before summary judgment, and becau se Siruk’s discussion of his conversation
with Krista is merely an assertion in a le gal memorandum, we conclude that the district
court correctly determined that there was no genuine issue of material fact regarding the
purported representations by North Mill at the time the district court granted summary
judgment. See DLH, Inc., 566 N.W.2d at 71 (“[A] party resisting summary judgment must
do more than rest on mere averments.”).3
Siruk also makes arguments that suggest that the lease a nd guaranty were falsified
documents. But Siruk admitted in his answer that the lease submitted by North Mill was a
“true and correct copy” of the lease agreement. “Once a matter is de emed admitted, it is
established for purposes for the proceeding. Any effort to submit adverse evidence on the
matter or to attempt to contradict an admitted fact would be irrelevant because the issue is
no longer in dispute.” In re Welfare of J.W. , 391 N.W.2d 791, 796 (Minn. 1986).
Consequently, this argument has no merit.

3 Siruk also appears to make a number of arguments relating to summary judgment in Trust
Capital’s favor. But the district court denied Trust Capital’s motion for summary
judgment.

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IV. Denial of Dema nd for Jury Trial

Siruk contends that the distri ct court denied him the right to a jury trial. He asserts
that he demanded a jury trial during the contempt hearings. But Siruk’s assertion is not
supported by the record. At one of the cont empt hearings, Siruk i ndicated that he was
“more than welcome to trial by jury, if that’s possible.” When the district court told Siruk
that, “if [the case] doesn’t settle, it would go to a jury trial or a court trial,” Siruk responded,
“That would be great no w. Any day.” The district court ultimately held a court trial
without objection from Siruk. Even if we construed Siruk’s equivocal comments at the
contempt hearing as a demand for a jury tr ial, Siruk waived a jury trial by willingly
proceeding to a court trial w ithout objection or comment. See Schweich v. Ziegler, Inc. ,
463 N.W.2d 722, 728 (Minn. 1990) (indicating that failure to demand a jury trial constitutes
a waiver of jury trial); 301 Clifton Place LLC v. 301 Clifton Place Condo. Ass’n ,
783 N.W.2d 551, 562 (Minn. App. 2010) (concluding that an agreement to proceed with a
bench trial effectively waives the right to a jury trial).
V. Posttrial Rule 41.02 Order

Finally, Siruk makes several assertions and arguments suggesting that Trust
Capital’s sales manager lied at trial and is guilty of perjury. We construe these arguments
as a challenge to the district court’s determination, in its posttrial rule 41.02 order, that the
sales manager was credible.

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Rule 41.02 governs involuntary dismissal of an action or claim for failure to
prosecute:
After the plaintiff has completed the presentation of evidence,
the defendant, without waiving th e right to offe r evidence in
the event the motion is not granted, may move for a dismissal
on the ground that upon the facts and the law, the plaintiff has
shown no right to relief. In an action tried by the court without
a jury, the court as trier of the fact may then determine the facts
and render judgment against the plaintiff . . . . If the court
renders judgment on the merits ag ainst the plaintiff, the court
shall make findings as provided in Rule 52.01.

Minn. R. Civ. P. 41.02(b). We review the district court’s dismissal of a claim with
prejudice for an abuse of discretion. See Minn. Humane Soc. v. Minn. Federated Humane
Socs., 611 N.W.2d 587, 590 (Minn. App. 2000). Written findings in an order dismissing a
claim under Rule 41.02(b) will not be set aside unless they are clearly erroneous. Poured
Concrete Founds. Inc., v. Andron, Inc. , 507 N.W.2d 888, 891 (Minn. App. 1993), review
denied (Minn. Jan. 27, 1994).
Siruk’s arguments on this point are only directed at the district court’s determination
that the sales manager’s trial testimony was cred ible. But we defer to the district court’s
credibility determinations. See In re Welfare of Children of S.R.K., 911 N.W.2d 821, 831
(Minn. 2018). Moreover, in an attempt to demonstrate that the sales manager was dishonest
at trial, Siruk relies on evidence on the “CD” that is outside the record. We do not consider
evidence outside the record. Thiele v. Stitch, 425 N.W.2d 580, 582-83 (Minn. 1988) (“An
appellate court may not base its decision on matters outside the record on appeal, and may
not consider matters not produced and receive d in evidence below.”). For these reasons,

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we conclude that Siruk’s arguments regarding the district court’s credibility determination
have no merit.
The district court’s findings in its rule 41.02 order are not clearly erroneous. Siruk
presented no evidence at trial that Trust Capital’s sales manager made any representation
about the condition of the dump truck. Consequently, we determine that the district court
did not abuse its discretion by dismissing Siruk’s claims under rule 41.02.
In sum, we find no merit to appellant’s arguments regarding the district court’s
exercise of jurisdiction, grant of summary judgment, alleged denial of the right to a jury
trial, or rule 41.02 order findings. We conclude that Siruk’s challenge to the district court’s
order for the return of the dump truck, and its decision to hold Siruk in contempt, are moot
and we therefore do not reach the merits of those arguments. Finding no grounds to reverse
the district court, we affirm.
Affirmed.