Minnesota Bank & Trust, Respondent,

This opinion is nonprecedential except as provided by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
A21-0008

Minnesota Bank & Trust,
Respondent,

vs.

11 Water LLC, et al.,
Defendants,

David Jon Monson,
Appellant.

Filed September 7, 2021
Affirmed
Cochran, Judge

Hennepin County District Court
File No. 27-CV-20-574

John Rock, Kathryn Stephens, Rock Hutc hinson, PLLP, Minneapolis, Minnesota (for
respondent)

Erik F. Hansen, Elizabeth M. Cadem, Burns & Hansen, P.A., Minneapolis, Minnesota (for
appellant)

Considered and decided by Worke, Presiding Judge; Cochran, Judge; and
Slieter, Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
This appeal arises from re spondent-lender’s lawsuit rela ted to a loan. Appellant,
one of the guarantors of th e loan, challenges the district court’s grant of summary
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judgment. He argues that the district court erred as a matter of law by granting summary
judgment with respect to both respondent’s breach-of-contract claims and appellant’s
counterclaims. Appellant further argues that respondent’s summary-judgment motion was
premature. We affirm.
FACTS
The facts are undisputed. In December 2015, respondent Minnesota Bank & Trust
(the bank), through its predecessor Signature Bank, loaned $5 million to defendant-below
11 Water LLC (11 Water). At the time of th e loan, appellant Da vid Jon Monson and
defendant-below Jack B. Strommen each owned 50% of 11 Water. In addition to 11 Water,
Strommen owned and managed Sa natio Capital LLC (Sanatio). The loan was part of a
hotel redevelopment project. The loan initially had a maturity date of December 22, 2016.
The loan was secured by a pers onal guaranty sign ed by Strommen as well as securities
owned by Strommen. After 11 Water failed to make payments in accordance with the
promissory note for the loan, th e parties entered into additi onal agreements in 2018 and
2019 which are described below. The ag reements included a personal guaranty by
Monson, two security agreements, and two forbearance agreements.
The Additional Agreements
On February 22, 2018, M onson executed a personal guaranty and a security
agreement as part of an arrangement with the bank to extend the maturity date of the loan.
At that time, 11 Water had repaid only $300,000 of the original $5 million loan. Under the
terms of the personal guaranty, Monson “absolutely and unconditionally guarantee[d]” full
payment and “performance and discharge of a ll [11 Water’s] obligations under the Note
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and the Related Documents.” Under the terms of the security agreement, he pledged his
45% interest in a company called JJ3 Capital LLC (JJ3) as collateral for the loan. On the
same date, Strommen executed a security agreement on behalf of Sanatio, which also had
an interest in JJ3. In that agreement, Sanatio pledged its 45% interest in JJ3 as additional
collateral for the loan. Both security agreements contained identical operative language
and, by their terms, expressly extended the maturity date of the loan to December 22, 2019.
In December 2018, the bank entered into a forbearance agreement at the request of
11 Water, Monson, and Strommen as borrower and guarantor s respectively. The 2018
forbearance agreement provided that the outsta nding principal balance owed to the bank
by 11 Water was approximately $4,140,000. The parties agreed that 11 Water was “in
default.” The bank agreed to “forbear” from exercising its legal remedies under the loan
and related documents provided that the borrower and guarantors complied with the terms
of the forbearance agreement, including that 11 Water make certain payments as specified
in the agreement. In addition, the guarantors specifically reaffirmed the validity of the
personal guaranties that they had previously signed. The 2018 forbearance agreement also
provided that the borrower and guarantors agr eed to “irrevocably wa ive and release” the
bank from any and all claims, defenses, a nd counterclaims resulting from any act or
omission by the bank, other than willful acts or omissions, befo re the date of agreement.
And the 2018 forbearance ag reement shortened the matur ity date of the loan from
December 2019 to May 2019.
After 11 Water defaulted on the 2018 fo rbearance agreement, the same parties
signed a second forbearance ag reement in August 2019. Under the terms of the 2019
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forbearance agreement, the matu rity date of the loan was re set to August 28, 2019. In
addition, the bank agreed to forbear from pu rsuing any claims against 11 Water and the
guarantors until that date, provided that there was not a “forbearance default” as defined
by the agreement. Further, as part of the agreement, 11 Water promised to make a $300,000
principal payment on or before the new matu rity date and to make monthly interest
payments. In addition, Monson and Strommen reaffirmed that the guaranties they each
executed were valid, legal, an d enforceable, and they agai n waived all defenses and
counterclaims arising from the loan. The bank did not receive the $300,000 principal
payment until November 1, 2019, more than two months after the deadline.
Interest-Reserve Payment and Commencement of Litigation
According to Monson, in early November 2019, a bank officer contacted him and
requested $200,000 as an “interest-reserve” payment. The bank officer represented to him
that the payment was necessary “for the pending renewal of the [l]oan.” The parties agree
that Monson paid the requested $200,000 to the bank. But instead of renewing the loan,
the bank applied the $200,000 to the outstanding principal balance. Shortly thereafter, on
November 11, 2019, the bank sent a notice of default to 11 Water, Strommen, and Monson.
In the letter, the bank demanded immediate pa yment of all outstanding principal, accrued
interest, and late fees.
In January 2020, after the demand for immediate payment was not fulfilled, the bank
served its complaint. The complaint alleged multiple counts of breach of contract against
11 Water, Monson, Strommen, a nd Sanatio including: (1) br each of contract against
11 Water based on its failure to perform its obligations under the promissory note;
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(2) breach of contract against Monson and Strommen based on their respective guaranties
and the forbearance agreements; and (3) breach of contract against Monson and Sanatio
based on the security agreements. 11 Water, Strommen, and Sanatio admitted liability on
the bank’s breach-of-contract cl aims. Monson alone disputed liability. In his answer,
Monson raised a number of affirmative defenses, including lack of consideration and fraud.
He also brought counterclaims of fraud, intentional misrepresentation, negligent
misrepresentation, promissory estoppel, and unjust enrichment.
In February 2020, the bank filed a repl y to Monson’s counterclaims. The bank
asserted that Monson’s counterclaims were barred by the waiver language included in the
forbearance agreements.
In March 2020, the parties proposed a jo int discovery plan. The district court
entered a scheduling order that required all di scovery to be noticed and completed on or
before July 31, 2020.
The Bank’s Summary-Judgment Motion
In August 2020, after the close of disc overy, the bank moved for summary judgment
and submitted a memorandum in support of its motion. The bank argued that summary
judgment was appropriate against 11 Water be cause it was undisputed that 11 Water had
not met its obligations under the promissory note. Next, the bank argued that summary
judgment was appropriate against Stro mmen and Monson u nder the forbearance
agreements because the bank di d forbear as promised and the defendants could “offer no
evidence” that they satisfied their obligations under the forbearance agreements. The bank
made a similar argument with respect to the guaranties signed by Strommen and Monson.
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And, with respect to the secu rity agreements, the bank argued that there was no dispute
that Monson and Sanatio had not complied with their obligations under the agreements.
The bank also argued that it was entitled to summary judgment on Monson’s counterclaims
because Monson had waived all defenses and counterclaims under the terms of the
forbearance agreements. Further, the bank argued that Monson produced no competent
evidence in support of his defenses and counterclaims.
Monson submitted a memorandum in op position to the bank’s motion for summary
judgment. He argued that he had shown genuine issues of material fact regarding whether
the agreements that he had signed were unenforceable due to a lack of consideration. He
also argued that genuine issues of mate rial fact existed regarding his fraudulent
inducement, promissory estoppel, and unjust enrichment claims. And, he argued that
discovery deficiencies made summary judgm ent inappropriate. In a reply memorandum,
the bank argued that the alleged discovery deficiencies did not preclude entry of summary
judgment in its favor because Monson failed to diligently pursue discovery.
In an order dated September 21, 2020, th e district court granted the bank’s motion
for summary judgment against all defendants. The district court first concluded that
summary judgment against 11 Water, Strommen, and Sanatio was appropriate because they
admitted liability “under the No te, guaranty, and security ag reement they signed.” The
district court then concluded that summary judgment against Monson was appropriate
because the agreements that he signed were supported by considera tion, he waived his
defenses and counterclaims that predated the forbearance agreem ents, and he did not
demonstrate a genuine issue of material fact as to his counterclaims that postdated those
7
agreements. The district court did no t explicitly rule on Monson’s alleged
discovery-violation argument. Monson now appeals.
DECISION
Monson argues that the district court e rred by granting summary judgment to the
bank on both its breach-of-c ontract claims against him and his own counterclaims.
Alternatively, he argues th at the bank’s summary-judgmen t motion was premature and
reversal is warranted on that basis as well. We are not persuaded.
Summary judgment “is appropriate when there is no genuine issue of material fact
and a party is entitled to judgment as a matter of law.” Henson v. Uptown Drink, LLC ,
922 N.W.2d 185, 189-90 (Minn. 2019) (quotation omitted). “A genuine issue of material
fact exists when there is su fficient evidence regarding an essential element to permit
reasonable persons to draw different conclusions.” St. Paul Park Ref. Co. v. Domeier ,
950 N.W.2d 547, 549 (Minn. 2020). If the nonmoving party fails to identify evidence
sufficient to create a genuine issue of material fact in support of one or more essential
elements of the party’s claim, and the moving party is entitled to ju dgment as a matter of
law, the district court should grant the motion for summary judgment. See Eng’g & Constr.
Innovations, Inc. v. L.H. Bolduc Co., 825 N.W.2d 695, 704 (Minn. 2013) (explaining when
summary judgment is appropriate).
We review a district court’s decision to grant summary judgment de novo to
determine whether there are any genuine issues of material fact and whether the court erred
in its application of the law. Montemayor v. Sebright Prods., Inc. , 898 N.W.2d 623, 628
(Minn. 2017). We “view the evidence in the light most favorable to the party against whom
8
summary judgment was granted.” STAR Ctrs., Inc. v. Faegre & Benson, L.L.P. ,
644 N.W.2d 72, 76-77 (Minn. 2002). A gran t of summary judgment may be affirmed on
any grounds. Doe v. Archdiocese of St. Paul , 817 N.W.2d 150, 163 (Minn. 2012). With
this standard in mind, we address Monson’s arguments.
I. The district court correctly determined that there are no genuine issues of
material fact as to the bank’s breach -of-contract claims against Monson and
that the bank is entitled to judgment as a matter of law.
Monson argues that the district court e rred by granting summary judgment to the
bank because (1) the guaranty, security agreement, and forb earance agreements that he
signed are unenforceable due to lack of consider ation, and (2) genuine issues of material
fact exist as to his fraud defense. We consider these arguments in turn.
A. The undisputed facts show that th e various agreements Monson signed are
supported by consideration.
The bank contends that the undisputed evidence shows that Monson breached his
personal guaranty, his security agreement, and both forbearance agreements by failing to
comply with the terms of the agreements. Monson argue s that these agreements lacked
consideration and therefore are not enforceable against him. Specifically, he contends that
the guaranty and security agr eement lacked consideration. He further argues that the
forbearance agreements, which were predicated on the guarant y, lack consideration as a
result of the guaranty lacking consideration. Monson’s arguments fail as a matter of law
because the undisputed fact s show the agreements were supported by adequate
consideration.
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It is black-letter law that “[t]he forma tion of a contract requires communication of
a specific and definite offer, ac ceptance, and consideration.” Commercial Assocs.,
Inc. v. Work Connection, Inc., 712 N.W.2d 772, 782 (Minn. App. 2006). “Consideration
is something of value given in return for a performance or promise of performance.”
Powell v. MVE Holdings, Inc. , 626 N.W.2d 451, 463 (Minn. App. 2001) (quotation
omitted), review denied (Minn. July 24, 2001 ). Whether a contract is supported by
consideration is a question of law. Brooksbank v. Anderson, 586 N.W.2d 789, 794 (Minn.
App. 1998), review denied (Minn. Jan. 27, 1999).
A guaranty to pay a pre-existing debt must be supported by consideration beyond
the original obligation. Baker v. Citizens State Bank of St. Louis Park , 349 N.W.2d 552,
557 (Minn. 1984). But when the pre-existing debt is past due, an extension of time on the
debt is sufficient consideration to suppor t a guaranty of payment by a third party.
O’Neil v. Dux, 101 N.W.2d 588, 594 (Minn. 1960). And “the detriment sustained in
relying on a guaranty is sufficien t consideration to support it.” Tri-Cty. State Bank of
Ortonville v. Golf Props., Inc. , 395 N.W.2d 409, 412 (Minn. App. 1986). Further, the
consideration running from the lender to the borrower, and the lender’s detriment in relying
on the guaranty, is adequate consideration ev en where “no benefit whatever accrued to”
the guarantor. Southdale Ctr., Inc. v. Lewis, 110 N.W.2d 857, 863 (Minn. 1961).
Here, the undisputed facts show that the ba nk agreed to extend the loan beyond its
original maturity date based on Monson’s guaranty and security agreement (as well as the
security agreement of Sanatio ). The bank’s extension of the loan provides adequate
10
consideration for the agreements th at the bank seeks to enforce. O’Neil, 101 N.W.2d at
594.
Monson’s arguments to the contrary do not persuade us that the agreements lacked
consideration. Monson first argues that th e bank did not receive consideration because
there is no evidence that the bank loaned any additional funds to 11 Water or assumed any
new obligation with respect to the original loan. Monson ne xt argues that there is no
evidence that he received any personal be nefit from signing the documents. These
arguments are unpersuasive because, as discussed above, the extension of the loan by itself
is sufficient consideration. Id. No additional obligation on the part of the bank or benefit
to Monson is required to find adequate consideration. Id.
Accordingly, Monson has not shown that his guaranty and security agreement
lacked consideration. And because his argum ent that the forbearance agreements lacked
consideration depends on his argument that the guaranty was unenforceable, that argument
is unsuccessful as well. The district court did not err when it concluded, as a matter of law,
that the agreements signed by Monson are supported by adequate consideration.
B. Monson has not shown a genuine issue of material fact as to whether the
bank fraudulently induced him to sign the guaranty and security agreement.
Monson also argues that the district c ourt erred by granting summary judgment to
the bank on its breach-of-contract claims agai nst him because there is a genuine issue of
material fact regarding his defense of fraud. He contends that th e bank fraudulently
induced him to sign both the gu aranty and the security agr eement when a bank officer
falsely represented material fa cts to him. The district c ourt determined that Monson’s
11
defense was not supported by sufficient ev idence because Monson had not produced
competent evidence of fraud “as to the intent and falsity of [the bank’s] representations.”
We first review the elements of a fraud defense and then consider whether Monson showed
that there is a genuine issue of material fact concerning his fraudulent inducement defense.
To establish a defense of fraudulent in ducement, Monson must show that (1) the
bank officer made a false representation of a pa st or existing material fact susceptible of
knowledge, (2) the officer ma de the representation either knowing it was false or not
knowing whether it was true or false, (3) th e officer intended to induce Monson to act in
reliance on the representation, (4) the representation caused Monson to act in reliance upon
it, and (5) Monson suffered pecuniary damages as a result of the reliance. Valspar Refinish,
Inc. v. Gaylord’s Inc., 764 N.W.2d 359, 368 (Minn. 2009). To show that the district court
erred by granting summary judgment to the ba nk on his defense, Mo nson must present
evidence establishing all elements of fraud. Cf. McRae v. Grp. Health Plan, Inc. ,
753 N.W.2d 711, 716 (Minn. 20 08) (requiring moving party to establish each element of
affirmative defense); Glass Serv. Co. v. State Farm Mut. Auto. Ins. Co., 530 N.W.2d 867,
870 (Minn. App. 1995) (requiri ng nonmoving party to estab lish each element of claim to
survive summary-judgment motion), review denied (Minn. June 29, 1995).
Monson argues that his declaration prov ided sufficient evid ence that he was
fraudulently induced to sign the guaranty and se curity agreement. In his declaration,
Monson alleged that the bank officer repeatedly requested that he “co-guarantee the Loan
to give the bank an ‘interim’ security while they aggressively pursued the recovery” of the
original collateral. He further alleged that the bank officer told him “that this was only a
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‘good faith’ measure that would assist [the officer] greatly.” Monson then alleged that he
signed the guaranty based on a representation from the bank officer that the officer would
remain in charge of the 11 Water loan after the sale of Signature Bank to Minnesota Bank
& Trust. Monson further alleged that the bank officer knew the original collateral provided
by Strommen was no longer av ailable but represented otherw ise to him. Monson also
alleged that the bank officer knew that the ba nk “was in fact not going to pursue the
recovery of the [collateral] that otherwise secured the 11 Water Loan when inducing [his]
co-guarantee but represented the exact opposite to [him].” Monson provided no evidence
to support these allegations regarding the bank officer’s knowledge or the bank’s plans
regarding the original collateral secured by the loan.
Monson’s fraud defense fails as a matter of law for two reasons. First, Monson’s
alleged misrepresentations relate to fu ture—and not present or past—facts. A
misrepresentation about future events does not constitute fra ud unless the record shows
that “the promisor had no intention to perform at the time the promise was made.” Valspar,
764 N.W.2d at 368-69 (quotatio n omitted). The alleged misrep resentations at issue here
concern whether the bank officer would remain in charge of the loan and whether the bank
would pursue the original collateral or seek to enforce his guaranty. Monson’s opposition
to the bank’s summary-j udgment motion lacked any evidence that the bank officer knew
he would not remain in charge of the loan, or that the bank never intended to pursue the
recovery of the original securities. Monson’s unsupported assertions in his declaration are
insufficient to create a genuine issue of material fact. See Minn. R. Civ. P. 56.03(d)
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(providing affidavit opposing summary judgmen t must be based on personal knowledge,
set out admissible facts, and show affiant is competent to testify on matters stated).
Second, Monson’s fraudulent inducement argu ment is directly contradicted by the
terms of the guaranty. The guaranty provides that: “This is a guaranty of payment and
performance and not of collection, so Lender can enforce this Guaranty against Guarantor
even when Lender has not exhausted Lender’s remedies against anyone else obligated to
pay the Indebtedness or against any collateral securing the Indebtedness .” (Emphasis
added.) The guaranty further provides that the “guarantor acknowledges having read all
the provisions of this guaranty and agrees to its terms.” Here, the allegedly false
representations by the bank official regarding the guaranty directly conflict with the terms
of the guaranty. A claim of fraudulen t inducement fails where the alleged
misrepresentation either “relate[s] to matters known to be covered by the written
agreement,” or the alleged misrepresentation is a claim that a given contractual provision
would not be effective. Vint v. Nelson , 127 N.W.2d 177, 181 (Minn. 1964). Because
Monson has not produced comp etent evidence of an inten tional misrepresentation to
support his fraud defense, Mons on has not identified a genuine issue of material fact
precluding summary judgment as to the bank’s breach-of-contract claims against him. Cf.
Glass Serv., 530 N.W.2d at 870 (requiring nonmoving party to show all elements essential
to party’s case to survive summary judgment).
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II. The district court correctly determined that there are no genuine issues of
material fact as to Monson’s counterc laims and that the bank is entitled to
judgment as a matter of law.
Monson also argues that the district c ourt erred by granting summary judgment to
the bank on his counterclaims. Monson firs t contends that the district court erred by
concluding that Monson waived all count erclaims that predated the forbearance
agreements. He next argues that the district court erred by concluding that his remaining
counterclaims were not supported by competent evidence. We consider the waiver-related
arguments first, and then consider the remaining counterclaims.
A. The district court correctly determined that Monson waived all claims that
predate the forbearance agreements.
The district court concluded that M onson’s counterclaims that predate the
forbearance agreements were “all precluded by his waiver and release of claims and
counterclaims” included in the forbearance agreements . Both the 2018 and 2019
forbearance agreements expre ssly provide that Monson waiv es and releases all claims,
defenses, and counterclaims “a rising out of, connected with, resulting from or related to
any act or omission” by the ba nk with respect to the loan documents or collateral “other
than [the bank’s] willful acts or omissions,” arising on or before the date of the agreements.
Monson argues that the district court erred in its application of this language for two
reasons. First, he argues that his countercla ims all involve willful conduct by the bank,
and the waiver clause excludes claims arising out of the bank’s willful acts. As a result, he
contends that the waiver clause does not bar his counterclaims. Monson, however, did not
raise the argument before the district court. As a result, Monson has not preserved this
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willful-acts argument for appellate review. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.
1988). We will not consider arguments raised for the first time on appeal. Id.
Second, Monson argues that he did not waive his fraud counterclaims because a
fraud claim cannot be waived by a cont ractual provision under Minnesota law.1 Monson
relies on Nat’l Equip. Corp. v. Volden to support his argument. 252 N.W. 444 (Minn.
1934). In Volden, the plaintiff filed suit to enforce a purchase agreement for construction
equipment. Id. at 444. At trial, the defendants, who purchased the equipment, argued that
they were induced to buy th e equipment by false representa tions and that the equipment
did not perform as represented. Id. The trial resulted in a verdict for the defendants. Id.
On appeal, the plaintiff contended that the district court should not have admitted evidence
about the false representations because the contract contained a warranty and provided a
remedy for its breach. Id. The supreme court held that evidence of the false representations
was admissible notwithstanding the contract because the fraudulent representations were
made before the parties entere d into the contract and “[p]arol evidence is admissible to
show that the making of th e contract was procured by fraudulent representations.” Id. at
445 (quotation omitted).
In a subsequent case, Vint, the supreme court distinguished Volden and concluded
that it would not apply the holding in Volden to a case where the claimed fraudulent
statements contradicted provisions of the written agreement. 127 N.W.2d at 181. In Vint,
defendant sellers of real property claimed that the plaintiff real estate agent had represented

1 As argued, there does not appear to be a substantive differenc e between Monson’s
affirmative defense of fraud and his fraud counterclaims.
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to them that they could can cel a six-month exclusive-listi ng contract at any time. Id. at
178-79. The supreme court conclude d that the defense of fraud was not available to
defendants where the alleged fraudulent statements relied upon regarding the cancellation
period “related to matters known to be covered by the written agreement.” Id. at 181.
Here, the misrepresentation alleged by Mons on is essentially th at the bank would
not enforce his guaranty against him. This alleged misrepresentation is directly
contradicted by the terms of the guaranty, wh ich specifically provid es that “Lender can
enforce this Guaranty agains t Guarantor even when Lender has not exhausted Lender’s
remedies against anyone else.” Because the alleged misrepresentation directly conflicts
with the terms of the guaranty, Vint instructs that Monson’s fraud counterclaims are barred
by the language of the guaranty. See id. In addition, both forbearance agreements, which
postdate the guaranty, include a waiver clause that specif ically provides that Monson
irrevocably releases and waives “any and all cl aims . . . defenses, [and] counterclaims.”
Accordingly, Monson has not shown that the di strict court erred when it concluded that
Monson’s counterclaims that predate the forbearance agreements have been waived.
B. Monson did not show a genuine issue of material fact as to his remaining
counterclaims.
Monson’s only counterclaims premised on facts that postdate the forbearance
agreements are his counterclaims with respect to the inte rest-reserve payment.2 Monson
argues that there are genuine issues of material fact precluding summary judgment on those

2 At oral argument, Monson’s counsel agreed that only the counterc laims relating to the
interest-reserve payment postdated the forbearance agreements.
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remaining claims concerning whether: (1) the bank fraudulently induced him to make the
interest-reserve payment, and (2) equity requires enforcemen t of the bank’s promise to
renew the loan or disgorgeme nt of the $200,000 payment und er alternate theories of
promissory estoppel and unjust enrichment. We address these arguments in turn.
Fraudulent Inducement Counterclaim
Monson argues that the district court erre d when it concluded that no genuine issue
of material fact exists regarding whether the bank fraudulently induced Monson to provide
a $200,000 interest-reserve pa yment with no intention of renewing the loan. In his
declaration, Monson alleged that in Nove mber 2019, a few mont hs after the last
forbearance agreement was signe d, a bank officer demanded th at he pay $200,000 as an
interest-reserve payment for the “pending renewal of the [l]oan.” Monson alleged that he
made the payment, but the bank did not renew the loan and instead applied the
interest-reserve payment to the outstanding balance of the loan. He further alleged that he
would not have made the intere st-reserve payment if he had known that the loan was not
going to be renewed. He then asserted, w ithout support, that th e bank “fraudulently
induced [him] to provide the $200,000 with no intention of renewing the Loan.” The
district court concluded that the bank was entitled to summary judgment on Monson’s
claim of fraudulent inducement relating to the interest-reserve payment because the
“conclusory statement” from Monson’s declaration was “incompetent evidence of fraud as
it is unaccompanied by any foundation for Monson’s knowledge.”
An affidavit used to oppose a motion for summary judgment “must be made on
personal knowledge, set out facts that would be admissible in evidence, and show that the
18
affiant is competent to testify on the matte rs stated.” Minn. R. Civ. P. 56.03(d); see also
Mountain Peaks Fin. Servs., Inc. v. Roth-Steffen, 778 N.W.2d 380, 387 (Minn. App. 2010)
(discussing requirements for affidavits subm itted in support of or opposition to summary
judgment), review denied (Minn. Apr. 28, 2010). The dist rict court correctly concluded
that Monson’s declaration is not competent evidence of fraudulent inducement because he
merely asserts, without support, that the bank had “no inten tion of renewing the Loan.”
This assertion is not within Monson’s pers onal knowledge because he provides no basis
upon which we could conclude that the bank never intended to renew the loan. Because
Monson’s assertion relates to a future event and he has presented no evidence that the bank
officer who made the statement had no intention to follow through with the promise to
renew the loan, Monson has not produ ced competent evidence of fraud. Valspar,
764 N.W.2d at 368-69.
On appeal, Monson argues for the first time that circumstantial evidence supports
his assertion that the bank never intended to renew the loan. Because Monson did not raise
his circumstantial-evidence argument before th e district court, he has not preserved the
argument for appeal. Thiele, 425 N.W.2d at 582. Accord ingly, Monson has not shown a
genuine issue of material fact exists precluding summary judgment as to his
fraudulent-inducement counterclaim relating to the interest-reserve payment.
Promissory Estoppel and Unjust Enrichment Counterclaims
Next, Monson argues under two quasi-contract theories that the bank should not be
allowed to retain the $200,000 interest-reserve payment. Firs t, he argues that the bank’s
promise to renew the loan shou ld be enforced according to the doctrine of promissory
19
estoppel. Second, he argues that the bank should be forced to disgorge the payment
according to the doctrine of unjust enrichment. We consider these arguments in turn.
Promissory estoppel requires proof that (1) a definite promise was made, (2) the
promisor intended to induce reliance and the promisee in fact detrimentally relied on the
promise, and (3) the promise must be enforced to avoid injustice. Martens v. Minn. Mining
& Mfg. Co. , 616 N.W.2d 732, 746 (Minn. 2000). Mo nson argues that the bank officer
made him “a clear and definite promise to extend the Loan if [he] made” the
interest-reserve payment and “intend[ed] to induce his reliance thereon.” And he asserts
that he relied on this promise to his detr iment by making the payment. Viewing the
evidence in the light most favorable to Mons on, he has met the first two prongs of the
promissory-estoppel analysis. But Monson does not argue in his brief, and did not argue
at oral argument, why equity requires the bank’s promise to be enforced.
The question is “whether enforcement is required to prevent an injustice.”
Cohen v. Cowles Media Co., 479 N.W.2d 387, 391 (Minn. 1 992). Here, it is undisputed
that the loan was in default at the time of the bank officer’s alleged promise in November
2019. Monson has not demonstrated that any injustice resulted from the bank declining to
extend the multimillion-dollar loan once again. Accordingly, Monson has not shown a
genuine issue of material fact as to his pr omissory-estoppel counterclaim concerning the
interest-reserve payment.
We next consider Monson’s argument relating to his unjust-enrichment claim. To
show unjust enrichment, Mons on must show that (1) th e bank knowingly received
something of value to which it was not entitled, and (2) ci rcumstances are such that
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it would be unjust for the bank to retain the benefit. In re Estate of Neuman ,
819 N.W.2d 211, 216 (Minn. App. 2012). Viewing the evidence in the light most favorable
to Monson, his allegation that he would no t have made the $200,000 interest-reserve
payment had the bank not represented that it would renew the loan satisfies the first prong.
But again, Monson has not argued why it would be unjust to allow the bank to retain the
benefit. Because the bank applied the interest-reserve payment to the outstanding principal
owed on the loan, even if the bank disgorged the payment, the practical result would be to
increase Monson’s obligation on the loan by the same amount. Accordingly, Monson has
not presented evidence that could support a finding that it would be unjust for the bank to
retain the benefit of the $200,000 interest-reserve payment.
In sum, Monson has not shown that the district court erred by granting summary
judgment to the bank on his counterclaims.
III. The bank’s summary-judgment motion was not premature.
Lastly, Monson argues that the district court erred by granting summary judgment
to the bank because the bank’s motion was “procedurally premature.” First, he argues that
the bank moved for summary judgment too early. Second, he argues that the district court
abused its discretion by entering summary judg ment before all disc overy disputes were
resolved. Neither argument persuades us.
A. The bank moved for summary judgment at an appropriate time.
Monson argues that the bank “filed its mo tion in violation of Minn. R. Civ. P.
56.02.” We “review the application of the Minnesota Rules of Civil Procedure de novo.”
Schulz v. Town of Duluth , 936 N.W.2d 334, 338 (Minn. 201 9). Rule 56.02 provides that
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“[u]nless the court orders otherwise, a party may not file a motion for summary judgment
more than 30 days after the close of all discovery.” (Emphasis added.)
The plain language of rule 56.02 requires a party to move for summary judgment
within 30 days of the close of discovery, which the bank did here. Under the district court’s
scheduling order, discovery closed on July 31, 2020. The undisputed facts show that the
bank filed its motion on August 18, 2020, within 30 days of the close of discovery. Thus,
the bank’s motion for summary judgment was timely under rule 56.02.
B. No outstanding discovery issues prec luded the district court from granting
summary judgment.
Monson next argues that the district cour t should have denied the bank’s motion for
summary judgment because of “outstanding disc overy issues.” The district court did not
explicitly address Monson’s discovery argument but implicitly rejected it by granting the
bank’s motion for summary judgment. See Palladium Holdings, LLC v. Zuni Mortg. Loan
Tr., 775 N.W.2d 168, 177-78 (Minn. App. 2009 ) (“Appellate courts cannot assume a
district court erred by failing to address a motion, and silence on a motion is therefore
treated as an implicit denial of the motion.”), review denied (Minn. Jan. 27, 2010).
When a nonmoving party shows by affidavit that “it cannot present facts essential
to justify its opposition, the court may” allo w additional time “to take discovery.” Minn.
R. Civ. P. 56.04. This court reviews a dist rict court’s decision to rule on a motion for
summary judgment w ithout allowing time for additional discovery for an abuse of
discretion. Molde v. CitiMortgage, Inc., 781 N.W.2d 36, 45 (Minn. App. 2010). A district
court abuses its discretion if, among other things, it “misapplie s the law, or resolves the
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matter in a manner that is contrary to logic and the facts on record.” Madden v. Madden,
923 N.W.2d 688, 696 (Minn. App. 2019).
A party resisting summary judgment on th e ground that it requires additional time
to conduct discovery must subm it an affidavit. Minn. R. Ci v. P. 56.04. This affidavit
“must be specific about the evidence expected, the source of discovery necessary to obtain
the evidence, and the reasons for the fail ure to complete discovery to date.” Molde,
781 N.W.2d at 45 (quotation omitted). When consideri ng a request for additional
discovery, the district court should consid er whether (1) the nonmoving party has a
good-faith belief that material facts will be uncovered and (2) the nonmoving party has
“been diligent in obtaining or seeking disc overy before requesting” further time. Id.
(quotation omitted). But, a party’ s “failure to submit such an af fidavit, by itself, justifies
the district court’s decision to rule on the motion without granting relief under rule” 56.04.3
Id.
Here, Monson did not submit an affidavit as required by rule 56.04 and Molde. This
alone justifies the district court’s decision to rule on the bank’s summary-judgment motion
without allowing additiona l time for discovery. Id. Further, the failu re to submit an
affidavit notwithstanding, the record shows that Monson was not “diligent in obtaining or
seeking discovery.” Id. (quotation omitted). The record reflects that Monson did not serve

3 At the time Molde was decided, the relevant rule was numbered 56.06. Id. In 2018, the
supreme court promulgated amendments to th e rules of civil procedure that included
rephrasing and renumbering the former rule 56.06 into the current rule 56.04. Order
Promulgating Amendments to th e Rules of Civil Procedure , No. ADM04-8001 (Minn.
Mar. 13, 2018).
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any discovery requests until July 1, 2020, the last possible day to serve discovery in
compliance with the district court’s scheduling order and the rules of civil procedure. And
Monson never filed a motion to compel any outstanding discovery responses. Nor did he
file a motion to extend discovery. In fact, th e record reflects that Monson first raised the
issue of the alleged discovery issues with the district court in his memorandum in
opposition to summary judgment, which wa s filed on September 1, 2020—more than
30 days after discovery closed. Monson has not shown that he was diligent in obtaining
discovery before seeking to delay the entry of summary judgment. Accordingly, the district
court acted well within its discretion by ruling on the bank’s motion for summary judgment
without extending the time for discovery beyond the deadline set in the district court’s
scheduling order.
Affirmed.