Mid Country Tower Services, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1544

Mid Country Tower Services,
Appellant,

vs.

Cemstone Products Company,
Respondent.

Filed July 6, 2021
Affirmed
Reyes, Judge

Dakota County District Court
File No. 19HA-CV-20-412

Daniel M. Gallatin, Gallatin Law, PLLC, Hugo, Minnesota (for appellant)

Lars C. Erickson, Benjamin J. Kirk, The Coleman Law Firm, LLC, Minneapolis,
Minnesota (for respondent)

Considered and decided by Larkin, Presiding Judge; Bjorkman, Judge; and Reyes,
Judge.
NONPRECEDENTIAL OPINION
REYES, Judge
In this appeal from the district court’s grant of summary judgment for respondent-
concrete manufacturer , appellant -wireless-transmission-tower builder argues that the
district court erred by determining that (1) appellant asked respondent to modify the final
load of concrete, barring appellant’s claim that respondent breached the contract and (2) a
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limitation-of-remedies clause in respondent’s load tickets precluded appellant’s requested
relief. We affirm.
FACTS
Appellant Mid Country Tower Services constructs wireless-transmission towers. Its
owner, Jon Adams, asked respondent Cemstone Products Company for pricing information
for the concrete necessary for a project in Wisconsin (the project). The project
specifications required concrete with a 28-day compressive strength of 4,500 pounds per
square inch (psi). A sales represen tative for Cemstone responded to Adams with a
proposal.
About a month and a half later, Mid Country ordered 158 cubic yards of two types
of concrete: W4666 with a compressive strength of 4,500 psi and Xfoot5 with a
compressive strength of 5,000 psi. Cemstone confirmed the order in a letter. Cemstone
also provided Mid Country with specifi cation sheets for each product. These sheets
identify product properties and ingredients, including the amount of air in each product
expressed as a percentage range : 6% plus or minus 1.5% , which is 4.5% to 7.5% , for
W4666; and 4% plus or minus 1.5%, which is 2.5% to 5.5%, for Xfoot5. The specification
sheets also state that “ [t]he addition of other constituents and/or admixtures to this mix
could cause the plastic and/or hardened properties to vary significantly from the [] mixture
design” and “disclaim and negate any warranty of [the] concrete mix design if it is modified
in any way.” Mid Country acknowledges receiving specifications for the products.
Cemstone delivered the concrete in 16 loads, each of which came with a load ticket
and certificate of compliance showing the composition of each load. The load tickets state
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that “[t]he sole and exclusive liability of Cemstone for any defect in the accepted goods
shall be limited to repairing or replacing the goods as Cemstone shall elect” (limitation-of-
remedies clause). Cemstone delivered primarily Xfoot5 concrete , and t he certificates of
compliance show that each load had between ten and 15 ounces of ai r added . Before
delivery of the final load, Adams called Cemstone, and the following exchange took place:
ADAMS: And then uhh, that last truck, can we get air in
there between 5 and 8, 8 percent?
CEMSTONE REPRESENTATIVE: On the last one, OK?
ADAMS: Yep, on, on the very last, last one. And then I
think that’ll do it, but I’ll call you for a balance but that should
be plenty of con . . . uh . . . con, concrete, but . . .
CEMSTONE REPRESENTATIVE: OK we’ll get you
three more full ones and the last one we’ll make sure to put
extra air in it.
ADAMS: Alright, thanks.

Cemstone added air to the final load , which also consisted of Xfoot5 concrete . The
accompanying certificate of compliance showed additional air was added.
Later, a quality-control check revealed that the final load of concrete did not have
the requisite compressive strength . Mid Country had to conduct additional investigation
to determine whether other loads failed to meet the project specifications. Only the final
load did not meet the project specifi cations. Nevertheless, the project remains in place,
and Mid Country did not seek repair or replacement of the concrete. However, it sued
Cemstone in conciliation court, alleging Cemstone breached the contract with Mid Country
and seeking $12,811.60 in damages for the costs of the investigation.
The conciliation court entered judgment in favor of Mid Count ry in the amount of
$14,000. Cemstone removed the case to district court in January 2020. It filed a motion
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for summary judgme nt in August 2020 , which Mid Country opposed. The district court
stated in its order that the only disputed issue is which party is responsible for th e
composition of the final load. It determined that there were no genuine issues of material
fact because “Adams clearly and unequivocally requested” that Cemstone add air to the
final load. It therefore determined that Cemstone did not breach the contract and is entitled
to summary judgment . The district court also stated in the alternative that, even if
Cemstone breached the contract, the limitation -of-remedies clause in Cemstone’s load
tickets precluded Mid Country’s claim for relief. This appeal follows.
DECISION
I. The district court did not err by determining that Mid Country requested the
modified concrete and granting summary judgment in favor of Cemstone.

Mid Country argues that the district court erred by ruling that it requested more air
in the concrete. It asserts that the mean ing of Adams’s phone call is a question of fact
subject to mult iple reasonable interpretations and that the district court inappropriately
inferred facts against Mid Country. We disagree.
In reviewing a district court’s grant of summary judgment, we review de novo
“whether there are genuine issues of material fact and whether the district court erred in its
application of the law.” Montemayor v. Sebright Prods., Inc., 989 N.W.2d 623, 628 (Minn.
2017) (quotation omitted). We view the evidence in the light most favorable to the
nonmovant, resolving all doubts and factual inferences in its favor. Id. (quotations
omitted).
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On a motion for summary judgment, the movant must first show the abse nce of a
factual dispute. Id. Then, the nonmovant has the burden of asserting specific facts, based
on the record as a whole, that show a genuine dispute of material fact. See DLH, Inc. v.
Russ, 566 N.W.2d 60, 71 -72 (Minn. 1997). T he nonmov ant must present more than a
metaphysical doubt as to facts, “mere averments,” id. at 71, or conclusions without specific
factual support, Grandnorthern, Inc. v. W. Mall P’ship, 359 N.W.2d 41, 44 (Minn. App.
1984). And when reasonable minds do not differ on a question of fact, the district court
may decide the question as one of law. Jane Doe 43C v. Diocese of New Ulm, 787 N.W.2d
680, 684-85 (Minn. App. 2010).
Mid Country relies on the phone call , specifically Adams’s use of the word “can ,”
to argue that he only inquired into Cemstone’s ability to add air rather than request ed to
add air. We are not persuaded. The parties do not dispute what Adams and the Cemstone
representative said in their dia logue. The only issue is whether reasonable minds could
differ as to the interpretation of that dialogue. Adams asked Cemstone with respect to the
last truck, “[C]an we get air in there between 5 and 8, 8 percent? ” In response, Cemstone
asked, “[O]n the last one, OK?” Adams responded, “Yep, on, on the very last, last one .
And then I think that’ll do it . . . .” When Cemstone stated that it would “put extra air in”
the final load, Adams stated, “Alright, thanks.” When viewed in the light most favorable
to Mid Country , the dialogue taken as a whole leads only to one reasonable conclusion:
Adams asked Cemstone to add extra air to the last load and twice confirmed that request .
We conclude that, because there are no issues of material fact on Mid Country’s breach-
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of-contract claim, the district court did not err by granting summary judgment in favor of
Cemstone.
II. We need not address Mid Country’s limitation-of-remedies argument because
our resolution of the first issue is dispositive , and Mid Country forfeited this
argument.

Mid Cou ntry argues that the limitation -of-remedies clause on Cemstone’s load
tickets is not part of the contract because (1) a contract modification is not effective without
consideration and (2) Mid Country never assented to the modification. However, our
conclusion in part I is dispositive: because Cemstone did not breach the contract, Mid
Country is not entitled to its requested relief.
Moreover, appellate courts generally do not consider arguments not raised before
the district court, and a party cannot shift theories on appeal . Thiele v. Stich, 425 N.W.2d
580, 582 -83 (Minn. 1988). The record shows that Mid Country did not challenge the
validity of Cemstone’s limitation -of-remedies clause at the district court. Instead, Mid
Country’s arguments focused on whether it requested added air or merely inquired as to
Cemstone’s ability to add air. We therefore conclude that Mid Country forfeited this
argument.
Affirmed.