Mark Moe, 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This opinion will be unpublished and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
A20-0294

Mark Moe,
Appellant,

vs.

Perham Stockyards, Inc.,
Respondent.

Filed December 7, 2020
Affirmed
Reilly, Judge

Otter Tail County District Court
File No. 56-CV-19-1708

John E. Mack, New London Law, P.A., New London, Minnesota (for appellant)

Scott M. Strand, Cahill Law Office PA, Moorhead, Minnesota (for respondent)

Considered and decided by Jesson, Presiding Judge; Larkin, Judge; and Reilly,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant was a partner in a farming operation forced to liquidate its assets after
defaulting on a loan. Respondent held an auction for the partnership and although appellant
requested that respondent include his name on the check for the proceeds, respondent made
the check out to the partnership and its lender. Appellant sued respondent claiming breach

2
of contract and breach of quasi-contract. The district court granted summary judgment for
respondent. Appellant challenges the district court’s grant of summary judgment arguing
that genuine issues of material fact preclude summary judgment. Appellant also contends
that the district court prematurely deter mined that appellant did not suffer damages. We
affirm.
FACTS
Appellant and his brother (brother) were partners in a farm operation, Moe Farms
Partnership (Moe Farms), until a judicial decree dissolved it in August 2018. In early 2016,
Moe Farms and its partners received notice from CHS Capital LLC (CHS) of default on its
2015 loan. In January 2017, CHS required liquidation of Moe Farms’ assets to satisfy the
debt. Brother arranged for respondent Perham Stockyards to sell Moe Farms’ remaining
cattle in February 2017. Before the cattle sale, appellant contacted respondent’s owner by
text message:
Appellant: [Owner of respondent], as U know I[’]m still a
partner of Moe farms[/]Moe farms trucking i nc. I haven[’]t
agreed or been involved in [brother’s] decision to sell cattle.
Because [brother] and I have a dispute about partnership
financial matters and he has not kept me informed, I ask that
the checks for sale proceeds include my name Mark Allan Moe
on them from here on o ut until notified differently. Thanks.
Please send a message back to confirm message.

[Owner of respondent]: Yes, no problem

After respondent sold the cattle at auction, respondent made the check payable to
Moe Farms and CHS. Appellant again contacted respondent’s owner by text message:
Appellant: B -llsh-t!!! CHS has [the check] that[’]s why I
wanted my name on it. You know I could have stopped you

3
selling those Cattle and I asked just to put my name on the
check and you agreed and re-nigged! No[w] it just costs more
with attorney[’]s that[’]s all! But guess what [Owner of
respondent] I will survive just like I have in the past but now I
know who[’]s word is good and who[’]s not worth a f -ck!
Have a great day [Owner of respondent]

CHS collected Moe Farms’ share of the cattle proceeds and applied it to the 2015
loan. In the Moe Farms’ partnership -dissolution action, neither appellant nor brother
contested the amount of (1) the auction proceeds, or (2) the application of the proceeds to
the loan. Appellant sued respondent as “Mark Moe Individually and as a partner in Moe
Farms Partnership” claiming breach of contract and breach of quasi-contract. Respondent
moved for summary judgment and the district court granted respondent’s motion. This
appeal follows.
D E C I S I O N
Appellant challenges the district court ’s decision to grant summary judgment ,
arguing that there are genui ne issues of material fact and the district court prematurely
determined that appellant did not suffer damages. Summary judgment is appropriate if the
moving party shows that there is no genuine issue of material fact and that the movant is
entitled to judgment as a matter of law. Minn. R. Civ. P. 56.01. This court reviews a
district court’s summary -judgment decision de n ovo by analyzing whether any genuine
issues of material fact exist and whether the district court misapplied the law. Melrose
Gates, LLC v. Moua, 875 N.W.2d 814, 819 (Minn. 2016).
A genuine issue of material fact exists “when reasonable persons might draw
different conclusions from the evidence presented.” DLH, Inc. v. Russ, 566 N.W.2d 60, 69

4
(Minn. 1997). “[T]here is no genuine issue of material fact . . . when the nonmoving party
presents evidence which merely creates a metaphysical doubt as to a factual issue.” Id. at
71. Instead, the nonmoving party must come forward with specific facts to satisfy its
burden and may not rely on mere averments in the pleadings or unsupported a llegations.
Bebo v. Delander, 632 N.W.2d 732, 737 (Minn. App. 2001), review denied (Minn. Oct. 16,
2001). We view the evidence in the light most favorable to the nonmoving party and
resolve any doubts regarding the existence of a material fact in that party’s favor. Senogles
v. Carlson, 902 N.W.2d 38, 42 (Minn. 2017).
I. The district court did not err in granting summary judgment on appell ant’s
breach-of-contract claim.

Appellant argues that a genuine issue of material fact exists whether a contract
formed to auction the cattle. “A contract consists of a binding promise or set of promises.”
Lyon Fin. Servs., Inc. v. III. Pap er & Copier Co. , 848 N.W.2d 539, 543 (Minn. 2014)
(footnote and citation omitted). To prevail on a breach-of-contract claim, the plaintiff must
establish three elements: (1) the formation of a contract, (2) performance by plaintiff of
any conditions precedent to its right to demand performance by the defendant, and
(3) breach of contract by the defendant. Id. Here, only element one, the formation of a
contract, is at issue and requires communication of a specific definite offer, acceptance,
and consideration. Commercial Assocs., Inc. v. Work Connection, Inc. , 712 N.W.2d 772,
782 (Minn. App. 2006) (citing Pine River State Bank v. Mettille, 333 N.W.2d 622, 626-27
(Minn. 1983)). Consideration is the giving of something of value to one who is not
otherwise entitled to it. Sorenson v. Coast -to-Coast Stores, Inc. , 353 N.W.2d 666, 669

5
(Minn. App. 1984), review denied (Minn. Nov. 7, 1984). Consideration does not include
a promise to do something that one is already legally obligated to do. Deli v. Hasselmo,
542 N.W.2d 649, 656 (Minn. App. 1996), review denied (Minn. Apr. 16, 1996).
Appellant claims that he and respondent f ormed a valid contract through the text
message exchange, detailed above. The district court determined there was no genuine
issue of material fact as to offer because “there was no express offer to contract contained
in [appellant’s] text messages.” We agree. The text messages do not include any definitive
offer. Before the cattle sale, appellant texted respondent’s owner, “Because [brother] and
I have a dispute about partnership financial matters and he has not kept me informed, I ask
that the checks for sale proceeds include my name . . . from here on out.” Appellant offered
nothing in exchange. Appellant also claims that he called respondent ’s owner and stated
that he objected to the cattle sale. But appellant points to no evidence in the record to show
that a genuine issue of material fact exists as to whether appellant offered to refrain from
legally interfering with the cattle sale in exchange for his name being placed on the check.
Even if appellant made a valid offer to respondent, considerati on must support it.
Appellant claims that consideration was present because appellant could have agreed not
to block the cattle sale in a legal action in exchange for respondent’s promise to place
appellant’s name on the check. The district court determi ned there was no genuine issue
of material fact as to consideration because “the ostensible consideration offered by
[appellant] is not something he could offer in his individual capacity.” We agree. The
consideration appellant claims to have offered was not present for two reasons. First, as
the district court observed, CHS required Moe Farms to sell its cattle to satisfy an

6
outstanding debt. Consideration does not include a promise to do something—such as sell
the cattle —that one is already legally ob ligated to do. Id. Second, appellant had no
authority to block the cattle sale in his individual capacity. Instead, only the partnership,
not appellant, could offer to give consideration on behalf of the partnership.
Contract formation requires a specific definite offer, acceptance, and consideration.
Commercial Assocs., Inc., 712 N.W.2d at 782. On summary judgment, appellant cannot
rely on unsupported allegations. Bebo, 632 N.W.2d at 737. Appellant has not shown that
a genuine issue of material fact exists as to whether an offer was present in his text message
exchange with respondent ’s owner or whether consideration supported his offer. We
conclude the district court did not err in granting summary judgment for respondent on the
breach-of-contract claim.
II. The district court did not err in granting summary judgment on appellant’s
quasi-contract claim.

Appellant argues that under the theory of quasi -contract, it is inequitable for
respondent to keep the commission received from the cattle sale because respondent
breached its agreement with appellant. Appellant was prepared to testify that CHS would
have permitted him to retain some of the proceeds if the check included his name.
Minnesota courts have lon g recognized the theory of quasi -contract. Marking v.
Marking, 366 N.W.2d 386 (Minn. 1985). Quasi -contracts are not contracts at all because
“neither promise nor privity, real or imagined, is necessary” for an obligation to form. Id.
at 387 (citation omitted). Instead, the obligation “is independent of any real or expressed
intent of the parties.” Id. (citation omitted). The obligation is “defined in equity and good

7
conscience and is imposed by law to prevent unjust enrichment at the expense of another.”
Id. (citation omitted). To recover under a quasi -contract claim a plaintiff must show the
defendant was wrongfully enriched at the plaintiff’s expense. Id. To survive summary
judgment, appellant must show that a genuine issue of material fact exists. DLH, Inc., 566
N.W.2d at 70. In doing so, appellant cannot rely on unsupported allegations but must come
forward with specific facts. Bebo, 632 N.W.2d at 737.
Here, the relevant, undisputed facts are: (1) respondent sold Moe Farms’ cattle, and
(2) respondent retained the commission from the cattle sale. Appellant does not point to
anything in the record nor provide any legal citation to support his proposition that because
respondent retained the commission from the cattle sale , respo ndent was wrongf ully
enriched at appellant’s expense. Appellant similarly points to no evidence in the record to
support his assertion that CHS would have permitted him to retain a portion of the proceeds
if his name was on the check.
Appellant has not shown that a genuine issue of material fact exists as to whether
respondent was wrongfully enriched . And we conclude the district court did not err in
granting summary judgment for respondent on the quasi-contract claim.
III. The district court did not err in determining appellant failed to produce
evidence sufficient to permit a fact-finder to award damages.

Finally, a ppellant argues that summary judgment is not appropriate because
respondent failed to meet its initial burden under Minn. R. Civ. P. 56.03 of showing that
damages cannot be awarded. Appellant’s argument lacks merit. The burden on the party
moving for summary judgment “may be discharged by ‘showing’—that is, pointing out to

8
the district court—that there is an ab sence of evidence to support the nonmoving party’s
case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 2554 (1986).
Here, to support its motion for summary judgment, respondent pointed out to the
district court that there was an absence of evidence to support appellant’s claim that he was
injured. The district court agreed and found “[t]he evidence fails to establish a genuine
dispute of fact as to any of these claimed damages.” On appeal, appellant argues he should
have a right to make a claim for (1) the commission respondent retained from selling the
cattle, (2) the tax liability that appellant will incur as a result of the sale, and (3) nominal
damages.
We are not persuaded. Appellant has no right to make a claim for the commission
that respondent retained from the cattle sale. Moe Farms, not appellant, owned the cattle
and incurred the fee from the sale. Any damages from the cattle sale were, ther efore,
recoverable by Moe Farms, not appellant. And e ven if appellant had standing t o bring a
claim on behalf of the partnership, the record shows that CHS required Moe Farms to sell
the cattle to satisfy its debt to CHS.
Appellant is similarly not entitled to make a claim for tax liability from the cattle
sale. Appellant argues that if the proceeds from the cattle sale had gone directly to him
rather than the partnership, his tax liability would have been reduced. On appeal, however,
appellant states that the amount of “this [tax liability] loss has not been calculated” and
points to no evidence in the record to show that the sale of the cattle impacted appellant’s
tax liability. And Moe Farms owned the cattle and was the proper entity to receive the
proceeds from the sale and realize the capital gains. Finally, because appellant does not

9
have a claim for breach of contract or quasi-contract, he has no right to nominal damages
on those claims.
We conclude that appellant has failed to establish a genuine issue of material fact
on the damages issue. The district court did not err in gran ting summary judgment for
respondent.
Affirmed.