David Timp, et al., Respondents,

This opinion will be unpublished and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
A19-1488

David Timp, et al.,
Respondents,

vs.

Deborah Gibbs, et al.,
Appellants.

Filed August 10, 2020
Affirmed
Segal, Chief Judge

Hennepin County District Court
File No. 27-CV-18-10591

Brandon M. Schwartz, Michael D. Schwartz, Schwartz Law Firm, Oakdale, Minnesota (for
respondents

Ryan Simafranca, Simafranca Law Office, Minnetonka, Minnesota (for appellants)

Considered and decided by Bratvold, Pr esiding Judge; Segal, Chief Judge; and
Bjorkman, Judge.
U N P U B L I S H E D O P I N I O N
SEGAL, Chief Judge
Appellants challenge the district court’s grant of summary judgment in favor of
respondents and denial of their opposing motion for summary judgment in this declaratory
judgment action. The suit was filed by respondents to obtain a declaration that they were

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not in material breach of a settlement agreem ent and to vacate a confession of judgment.
The confession of judgment ha d been filed by appellants on the ground that respondents
had breached the settlement agreement and were in default. Appellants also claim that the
district court erred in its award of attorney fees to respondents. We affirm.
FACTS
Appellants Deborah and Charley Gibbs are the former landlords of respondents
David Timp and Sherry Anderly. The landlord-tenant relationship began in May 2013 and
ended in March 2016. Following the terminati on of the landlord-tena nt relationship, the
Gibbses sued Timp and Anderly for breach of contract and to recover for damage caused
to the property leased to Timp and Anderly. In December 2017, the parties entered into a
settlement agreement (Agreement) to resolve the claims. Timp and Anderly agreed to pay
the Gibbses the sum of $75,000, plus simp le, non-compounded interest, pursuant to an
agreed-upon payment schedule. The relevant portion of the Agreement1 is as follows:
1. Timp shall pay Gibbs the sum of Seventy Five
Thousand Dollars ($ 75,000.00) (the “Se ttlement Amount”),
payable as follows: Beginning no later than the first (1st)
calendar day of February 2018 and no later than the first
calendar day of each succeedi ng month until the first (1st)
calendar day of January 2019, Timp shall on a calendar
monthly basis and by electronic transfer pay to Gibbs the sum
of Six Thousand Two Hundred Fifty Dollars ($6,250.00),
together with simple, non-compounded interest. . . .

2. The Parties agree that in the event Timp does not
pay the Settlement Amount as pres cribed in [the agreement],
Timp shall confess judgment, in the form of an executed
confession of judgment as described in [the agreement] below,
in favor of Gibbs in the principal amount of One Hundred

1 The Agreement references Timp and Anderly collectively as simply “Timp.”

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Thousand Dollars ($100,000.00). . . . The Date of Default shall
be the actual date, if any, when the third (3rd) of any three (3)
Settlement Amount m onthly installment pa yments have not
been paid by Timp by electroni c transfer to Gibbs either by
(a) the due date of the first calendar day of that payment’s
calendar month or (b) in full by their respective due date.

The Agreement includ ed a signed confession of judgment in which Timp and
Anderly agreed to pay the Gibbses the sum of $100,000 in the event that they failed to pay
the settlement amount as prescr ibed in the Agreement. Th e Agreement also contained a
provision that if either party “commences an action to enforce this Agreement, the
substantially prevailing party in such action shall be entitled to receive his or her reasonable
attorney’s fees, costs, disbursements, and costs of enforcement.”
Timp and Anderly subsequently agreed to split the monthly payments. Timp agreed
to pay 80%, and Anderly was responsible for the remaining 20%. Timp made his first three
payments via electronic wire transfer and each payment was received by the Gibbses prior
to the first of the month. On January 29, 2018, Anderly attempted to make her first payment
in the amount of $1,335.06. She discovered that her bank would only allow her to transfer
up to $1,000 at a time, and that she would no t be able to transfer the remaining $335.06
until the $1,000 payment was cleared by the Gibbses’ bank. She contacted the Gibbses
and offered to transfer the remainder as soon as the initial $1,000 payment cleared or, in
the alternative, to provide a check. The Gibbses did not respond to her email directly, but
their attorney emailed her atto rney and stated that the Gibb ses required strict compliance
with the terms of the Agreement.

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On January 31, 2018, Anderly emailed the Gibbses to explain that she was
previously unaware of the $1,000 transfer limit, that she had provided a certified check for
the remaining balance of that month’s payment, and that she would arrange to make future
payments entirely through electronic transf er. The Gibbses received and cashed the
certified check. With the exception of the portion of the February 2018 payment made by
certified check, Anderly made all of the other settlement payments via electronic transfer.
Anderly’s payments for the mont hs of February through March 2 included the
following:
February payment: Ande rly submitted a request on January 31 to transfer
$1,000 to the Gibbses’ bank account; the request for payment was posted
against her account on Febr uary 1; and posted to the Gibbses’ account on
February 5.

March payment: Anderly submitted a re quest on February 28 to transfer
$1,000 to the Gibbses’ bank account; the request was initially rejected
because she had insufficient funds, but she transferred sufficient funds and
resubmitted the transfer request on March 1; the payment was posted against
her account on March 2, and posted to the Gibbses’ account on March 6.

April payment: Anderly submitted a request on March 31 to transfer $1,000
to the Gibbses’ bank account; the paym ent was posted against her account
on April 2 and the payment was posted to the Gibbses’ account on April 4.

On April 17, 2018, the Gibbses filed the confession of judgment with the district
court claiming that Timp and An derly were in default under the Agreement. Their basis
for the claim is that Anderly paid part of the February payment by cashier’s check instead

2 Anderly’s payments for the sums she owed above $1,000 per month were all paid and
received by the Gibbses prior to the first of the month.

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of electronic transfer and that her payments were not received by them in full by the first
of each month.
Although payment of the June and July amounts was delayed after the filing of the
confession of judgment, Timp and Anderly made all remain ing payments to the Gibbses
and it is undisputed that they paid the full amount called for in the Agreement, including
interest, in the amount of $76,959.50.
In response to the filing of the confessi on of judgment in the underlying action,
Timp and Anderly commenced this lawsuit, seeking a declaratory judgment that they had
fully performed pursuant to the material terms of the Agreement and that the confession of
judgment should, therefore, be vacated. They also sought reasonable attorney fees and
costs pursuant to the terms of the Agreement.
Both parties moved for summary judgment . The Gibbses argued that they were
entitled to entry of the confession of judgment in the amount of $100,000, with Timp and
Anderly receiving $57,307.96 credit, leaving the balance of $42,692.04 owed to the
Gibbses above and beyond the full settlement sum paid by Timp and Anderly.3 Following
a hearing, the district court granted summary judgment to Timp and Anderly, denied the
Gibbses’ motion for summary judgment, and awarded attorney fees and costs to Timp and
Anderly. The Gibbses appeal.

3 This number was arrived at by subtracting $19,651.54 (the amount paid up to the date of
default) from $76,959.50 (the total amount paid by Timp and Anderly pursuant to the terms
of the Agreement).

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D E C I S I O N
I. The district court did not err in granting summary judgment in favor of Timp
and Anderly and denying summary judgment in favor of the Gibbses.

“On appeal from summary judgment, we review whether there are any genuine
issues of material fact and wh ether the district court erred in its application of the law.”
STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76 (Minn. 2002). This court
views “the evidence in the light most favo rable to the party against whom summary
judgment was granted, and reviews de novo whether a genuine issue of material fact
exists.” Id. a t 7 6 - 7 7 . W e a l s o “ r e v i e w d e n o v o whether the district court erred in its
application of the law.” Id. at 77.
“A settlement agreement is a contract,” and this court reviews “the language of the
contract to determine the intent of the parties.” Dykes v. Sukup Mfg. Co., 781 N.W.2d 578,
581-82 (Minn. 2010) (citation omitted). When the language is clear and unambiguous, the
court enforces the agreement of the parties as expressed in the language of the contract,
“even if the result is harsh.” Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339, 346-47
(Minn. 2003). Additionally, when contract terms are unambiguous, summary judgment is
appropriate. Twin City Constr. Co. v. ITT Indus. Credit Co., 358 N.W.2d 716, 718 (Minn.
App. 1984).
The Gibbses argue that the district c ourt erred by determining that Timp and
Anderly did not materially breach the Agreemen t. They claim that Anderly breached the
Agreement in two ways: (1) she made part of the February payment by a cashier’s check
instead of making the full payment by electr onic transfer; and (2) her payments for the

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months of February through April were not rece ived by the first of the month. They also
point to a substantial delay by Timp and Anderly in making the June and July payments
after the confession of judgment was filed.
In granting summary judgment for Timp and Anderly, the district court determined
that there was no material breach of the Agreement. The district court found that Anderly’s
February payment by cashier’s check was not an act of default because a cashier’s check
is as good as cash. The district court further noted that nothing in the Agreement expressly
required that payment actually be received by the Gibbses by the due date. The district
court noted that the Agreement merely requi red payment and that Anderly, by initiating
payment on or before the due date, complied with the terms of the Agreement even though
the payments may not have been received in the Gibbses’ bank account until a few days
later. Finally, the district court determined that the delay in the May and June payments
was excused by the improper filing of the confession of judgment by the Gibbses.
We agree. The mere existence of a br each, even a breach involving an express
provision of a contract, is not by itself enough to constitute a material breach. BOB Acres,
LLC v. Schumacher Farms, LLC , 797 N.W.2d 723, 728-2 9 (Minn. App. 2011), review
dismissed (Minn. Aug. 12, 2011). A material breach only occurs when a party breaches a
contract and the breach is “significant enough to permit the aggrieved party to elect to treat
the breach as total (rath er than partial),” and excuses the aggrieved party from further
performance and affords the party the right to sue for damages. Id. at 728.
A material breach “goes to the root or essence of the contract.” Id. (quotation
omitted). Here, the Gibbses acknowledged that the most important part of the Agreement

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was the payment of the $75,000. Anderly’ s one-time payment of $335.06 by cashier’s
check instead of electronic transfer still deli vered the funds to the Gibbses in a timely
manner and constitutes a small fraction of the $76,959.50 paid by Timp and Anderly to the
Gibbses. This does not co nstitute a material breach. See Coddon v. Youngkrantz , 562
N.W.2d 39, 42-43 (Minn. App. 1997) (determining that a single irregular payment does
not constitute a material breach of a contract), review denied (Minn. July 10, 1997).
With regard to the argument that Anderly’ s payments were late for the months of
February through March because they were not posted into the Gibbses’ bank account until
a few days after the first of the month, th e Agreement simply provides that Timp and
Anderly “shall pay” to the Gibbses the sum of $6,250 plus interest “no later than the first
calendar day” of each month. The Agreement does not provide that the payments had to
post to the Gibbses’ account by the due date. 4 Without an express provision in the
Agreement that the payments must be received by the Gibbses by the due date, we cannot

4 The Gibbses argue on appeal that Article 4A of the Uniform Commercial Code (UCC)
should be applied in interpreting the terms of the Agreement. Notably, the Gibbses fail to
provide any basis or legal authority to support their argument and the issue was only raised
in an errata sheet filed after the Gibbses’ primary brief was submitte d and in their reply
brief. An assignment of error in a brief ba sed on “mere assertion” and not supported by
argument or authority is forfeited unless prejudi cial error is obvious on mere inspection.
State v. Modern Recycling, Inc. , 558 N.W.2d 770, 772 (Minn. App. 1997) (quotation
omitted); see also Moorhead Econ. Dev. Auth. v. Anda, 789 N.W.2d 860, 887 (Minn. 2010)
(stating that, generally, issues not raised or argued in appellant’s principal brief cannot be
raised in a reply brief). We fail to see how the UCC is applicable to this case, which
involves a settlement agreem ent concerning payment for da mage caused to leased
premises, and thus find no prejudicial error here.

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conclude that Timp and Anderly material ly breached the contract by initiating the
payments by the due date.
Finally, the Gibbses argue that the district court erred by determining that the late
June and July payments were justified. After the Gibbses filed the confession of judgment,
the June and July payments we re delayed until September. The district court determined
that the act of filing the confession of judgm ent was a repudiation of the contract that
justified the late payment. Again, we agree with the district court and conclude that, under
these circumstances, Timp and Anderly were justified in delaying the June and July
payments.5 See Instrumentation Servs., Inc. v. Gen. Res. Corp., 283 N.W.2d 902, 908-09
(Minn. 1979) (stating that a non-breaching party who has on ly partially completed its
performance may act on an anticipatory breach without completing performance).
The district court therefore did not err in granting summary judgment to Timp and
Anderly, denying summary judgment to th e Gibbses and vacating the confession of
judgment.
II. The district court did not abuse its discretion in awarding attorney fees.
Finally, the Gibbses argue that the district court abused its discretion in its award of
attorney fees to Timp and Anderly in the amount of $29,806.25. “We will not reverse the
district court’s decision on attorney fees absent an abuse of discretion.” Carlson v. SALA
Architects, Inc., 732 N.W.2d 324, 331 (Minn. App. 2007), review denied (Minn. Aug. 21,

5 Because we affirm the district court’s ruli ng that there was no material breach of the
Agreement by Timp and Anderly, we need not address the Gibbses’ argument that the
district court erred in also finding subs tantial compliance with the Agreement as a
secondary ground for granting summary judgment in favor of Timp and Anderly.

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2007). A district court abuses its discretion when it misapplies the law. City of N. Oaks v.
Sarpal, 797 N.W.2d 18, 24 (Minn. 2011).
Here, the Agreement expressl y provided that if either party commenced an action
to enforce the Agreemen t, the substantially prevailing pa rty was entitled to attorney fees
and costs. The district court determined th at Timp and Anderly were entitled to attorney
fees and costs, and directed them to file documentation to support their claimed attorney
fees. On May 22, 2019, Timp and Anderly’s attorney filed an affidavit in support of
attorney fees that outlined the hours spent on the case, his hourly rate, his legal assistant’s
hourly rate, and his qualifications. The Gibbses did not file any resp onse to the affidavit
or claim for attorney fees.
The Gibbses assign two errors to the district court’s de termination. The Gibbses
first assert that the district court “failed to apply the lodestar method and perform its
responsibility to determine the number of hours reasonably expended multiplied by a
reasonable rate.” This is the entirety of the Gibbses’ argument on this point, and does not
contain any citation to legal authority or furthe r explanation of the alleged deficiencies in
the district court’s analysis. In its order awarding attorney fees, the district court stated
that it was applying the “lodestar method” to evaluate the claim, explained the relevant
factors, and determined that the claimed am ount of $29,806.25 was reasonable based on
the relevant factors and the “accurate, reliab le, and reasonable” e xhibits provided in
support of the award. 6 See Specialized Tours, Inc. v. Hagen , 392 N.W.2d 520, 542-43

6 Timp and Anderly note that the Gibbses sought an attorney fees award in the amount of
$81,220 in their motion for summary judgment.

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(Minn. 1986) (describing the lodestar method). On this record, we discern no abuse of
discretion by the district court.
The Gibbses next argue that they were entitle d to a jury trial on the issue of attorney
fees because the claim for fees wa s contract-based. They rely on United Prairie Bank-
Mountain Lake v. Haugen Nutrition & Equip., LLC for this proposition. 813 N.W.2d 49,
58 (Minn. 2012). In that case, one party demanded a jury trial on the issue of attorney fees,
which was denied. Id. at 53. The party appealed, and the supreme court determined that
“a claim for a monetary payment under a contra ctual indemnity provision is a legal claim
with” the right to a jury trial. Id. at 57. But in this case, the Gibbses expressly waived a
jury trial on the merits and never demanded a ju ry trial on the issue of attorney fees. The
Gibbses thus forfeited any right they may otherwise have had to have a jury determine the
attorney fees issue. See State v. Beaulieu, 859 N.W.2d 275, 278 n.3 (Minn. 2015) (noting
that a party forfeits a right by failing to make a timely assertion of that right).
Affirmed.