                         This opinion will be unpublished and
                         may not be cited except as provided by
                         Minn. Stat. § 480A.08, subd. 3 (2014).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A16-0119

                         Randolph Brooks Federal Credit Union,
                                     Respondent,

                                          vs.

                                    Daniel N. Gess,
                                      Appellant.

                                 Filed August 8, 2016
                                       Affirmed
                                  Halbrooks, Judge


                              Isanti County District Court
                                File No. 30-CV-15-466

Randolph Brooks Federal Credit Union, Universal City, Texas (respondent)

Daniel N. Gess, Princeton, Minnesota (pro se appellant)

      Considered and decided by Hooten, Presiding Judge; Halbrooks, Judge; and

Jesson, Judge.

                         UNPUBLISHED OPINION

HALBROOKS, Judge

      Appellant argues that the district court erred by granting summary judgment for

respondent. We affirm.
                                           FACTS

       On August 28, 2012, appellant Daniel Gess and his father Neale Gess signed a

loan agreement with respondent Randolph Brooks Federal Credit Union. Neale served as

the primary signatory, while Daniel signed as a guarantor. By signing the agreement as a

guarantor, Daniel agreed that all of the terms of the agreement applied equally to him.

According to the terms of the agreement, the credit union loaned Neale and Daniel

$13,070.40 in exchange for a security interest in a 2008 Chrysler van. Neale and Daniel

were responsible for 42 monthly payments of $311.20 to pay off the loan. If they

defaulted, the credit union had the option to “require that [they] deliver the collateral to it

at a time and place of its choosing.” As an alternative to delivery of the van, the

agreement states that Neale and Daniel “agree that the Credit Union can take possession

of the collateral without judicial process and [they] authorize a right of entry for that

purpose.” The terms dictate that the credit union could also file a lawsuit to recover the

van.

       Neale died on December 13, 2012.           After Neale’s death, Daniel came into

possession of the van. Daniel defaulted on the loan three months later. The credit union

attempted to recover the van without filing a lawsuit, but Daniel refused to relinquish

possession. As a result, the credit union filed a complaint in district court to recover the

van. The credit union asked the district court to compel Daniel to appear and disclose the

location of the van. It also asked the district court to authorize the sheriff to seize it. The

credit union moved the district court for summary judgment. Daniel moved the district




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court to dismiss the case or, in the alternative, to continue it. He also requested a jury

trial.

         The district court granted the credit union’s motion for summary judgment and

denied Daniel’s motions. It found that Daniel “provided no evidence creating a dispute

of material fact regarding any of the substantive elements of [the credit union’s]

[c]omplaint. Specifically, there is no evidence of a dispute regarding the failure to make

payments when they became due pursuant to the security agreement.” The district court

ordered Daniel to deliver the van to the credit union or disclose the van’s location and

authorized the sheriff to seize it and turn it over to the credit union.

         Daniel moved the district court for relief from the judgment under Minn. R. Civ.

P. 60.02. In response, the credit union moved for an order to show cause for why Daniel

should not be held in constructive contempt for refusing to deliver the van to the credit

union or disclose its location. The district court denied Daniel’s motion and granted the

credit union’s motion. It also permanently enjoined Daniel from initiating any successive

suits or proceedings to attempt to relitigate the case. This appeal follows.

                                       DECISION

         Daniel argues that the district court erred when it granted summary judgment to

the credit union because “testimony and evidence was produced and submitted that

clearly indicated that there were many valid and ongoing issues.” “On appeal from

summary judgment, this court reviews de novo whether there are any genuine issues of

material fact and whether the district court erred in its application of the law to the facts.”

Commerce Bank v. W. Bend Mut. Ins. Co., 870 N.W.2d 770, 773 (Minn. 2015). Evidence


                                               3
is viewed in the light most favorable to the party that summary judgment was granted

against. Id.

       Summary judgment “shall be rendered forthwith if the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact and that either party is entitled

to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. Summary judgment is

inappropriate if reasonable persons might draw different conclusions from the evidence

presented. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997). But a genuine issue of

material fact “must be established by substantial evidence.” Id. at 70 (quoting Murphy v.

Country House, Inc., 307 Minn. 344, 351, 240 N.W.2d 507, 512 (1976)).                    The

nonmoving party cannot “rest on mere averments,” and the evidence must be sufficiently

probative to an essential element of the nonmoving party’s case. Id. at 71.

       On appeal, Daniel asserts that there was a genuine issue of material fact because

the credit union was “unregistered, unlicensed and NOT bonded for actively engaging in

a replevin action in Minnesota.” Daniel also claims that he produced evidence to show

that the van’s title certificate is under review by the Texas Department of Motor

Vehicles. Daniel failed to provide substantial evidence to support either assertion. His

assertion that the credit union cannot legally engage in a replevin action was

unaccompanied by any proof. To support the assertion that the van’s title certificate is

under review, Daniel attached court documents he filed in district court in Texas. The

documents reveal that Daniel attempted to have the title certificate reviewed. But Daniel

did not provide anything authored by the Texas district court indicating that it questioned


                                             4
the validity of the title. His unsupported assertions are insufficient to preclude summary

judgment.

       Daniel also claims that he produced evidence to establish that he has a security

interest in the van that has priority over the credit union’s security interest. To support

this claim, Daniel attached an affidavit for collection of personal property that he filed

with the secretary of state, claiming that he is entitled to payment or delivery of the van

and the van’s title as the principal heir named in his father’s will. But under the terms of

the agreement with the credit union, Daniel agreed “not to sell, lease it, or give it as

collateral” until he “repaid what [he] owe[d] the Credit Union or the Credit Union [gave

him] written permission.” Daniel does not claim that he repaid the loan or that he had

permission from the credit union to create a security interest in the van for himself. The

affidavit does not create a genuine issue of material fact.

       In support of its motion for summary judgment, the credit union attached the loan

agreement and the van’s certificate of title indicating its security interest. And Daniel

does not deny that he defaulted on the agreement.             According to the terms of the

agreement, the credit union was allowed to recover the van by filing a lawsuit if Daniel

defaulted, and it did so. The district court properly granted summary judgment to the

credit union.

       Daniel argues in the alternative that the district court denied his constitutional right

to a jury trial by granting the credit union’s motion for summary judgment. “The right of

trial by jury shall remain inviolate, and shall extend to all cases at law without regard to

the amount in controversy.” Minn. Const. art. I, § 4. The jury’s role at trial is to decide


                                              5
issues of fact. Rheinberger v. First Nat’l Bank of St. Paul, 276 Minn. 194, 201-02, 150

N.W.2d 37, 42 (1967). When, as here, there is no genuine issue of material fact, the

district court does not violate a party’s constitutional right to a jury trial by not submitting

the case to a jury and instead granting summary judgment. Id.

       Finally, Daniel argues that the credit union owes him money for transferring and

storing the van. He failed to raise this issue to the district court. We therefore do not

address it. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Even if we were to

consider the argument, Daniel has provided no legal basis for his argument that he is

entitled to money from the credit union for transferring or storing the van.

       Affirmed.




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