                         This opinion will be unpublished and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
                                    A14-1220

                                     Nicole Curtis,
                                      Appellant,

                                           vs.

                                      Jason Jenny,
                                      Respondent.

                                  Filed May 4, 2015
                                      Affirmed
                                 Cleary, Chief Judge

                            Hennepin County District Court
                               File No. 27-CV-13-139


Brett M. Larson, Molly R. Hamilton Cawley, Amie E. Penny Sayler, Messerli & Kramer
P.A., Minneapolis, Minnesota (for appellant)

Wm. Christopher Penwell, Siegel Brill, P.A., Minneapolis, Minnesota (for respondent)


      Considered and decided by Reilly, Presiding Judge; Cleary, Chief Judge; and

Ross, Judge.

                        UNPUBLISHED OPINION

CLEARY, Chief Judge

      Appellant Nicole Curtis appeals from the district court’s order granting summary

judgment on all fourteen counts of her claim against respondent Jason Jenny. Jenny

appeals from the district court’s order granting summary judgment on his slander-of-title
counterclaim against Curtis. Because we conclude that no genuine issues of material fact

preclude summary judgment, we affirm.

                                          FACTS

       Curtis is the host of Rehab Addict, a television show featuring Curtis’s renovation

of old homes. In August 2009, Curtis and her business partner purchased a property at

620 Minnehaha Parkway West in Minneapolis for $350,000. Curtis’s renovations of the

property were featured on her television show.

       On January 11, 2012, Jenny purchased the property for $610,000. Jenny and

Curtis were involved romantically at the time. Following the sale, Curtis’s name was no

longer listed on the title for the property. Curtis alleges that she and Jenny entered into a

partnership agreement, in conjunction with the sale of the property to Jenny, which

formed the basis of many of Curtis’s later claims against Jenny.

       After Jenny bought the property, Curtis and Jenny’s relationship deteriorated and

Jenny denied Curtis access to the property. On June 13, 2012, Jenny and Curtis entered

into a purchase agreement in which Curtis was to purchase the property from Jenny. The

purchase agreement included an addendum containing a release provision, which

purported to release Jenny from “any and all claims by Buyer relating to the Property and

resulting from [Seller’s] ownership thereof.”1 However, the closing never took place

because Curtis was unable to obtain financing to buy the property.


1
 Before the district court, Curtis argued that the release was invalid because her signature
on the final version of the purchase agreement was forged. The district court found that
Curtis’s signature was valid and concluded that the release was enforceable against
Curtis. Curtis does not dispute the validity of the purchase agreement before this court.

                                             2
       In January 2013, Curtis filed a complaint against Jenny that included fourteen

counts, several of which arose from the partnership agreement that Curtis and Jenny

allegedly entered into at the time Jenny purchased the house. Soon after filing the

complaint, Curtis recorded a notice of lis pendens against the property.

       Jenny filed a motion for summary judgment on Curtis’s claims and a motion for

leave to add a slander-of-title counterclaim against Curtis. Following the completion of

discovery, the district court heard Jenny’s motion for summary judgment. In December

2013, the district court granted summary judgment dismissing all of Curtis’s claims.

       After the court granted summary judgment dismissing Curtis’s claims, Curtis filed

a motion for summary judgment concerning Jenny’s slander-of-title claim. The district

court held a separate hearing regarding the slander-of-title claim and other issues in

Curtis’s motion. In May 2014, the district court granted Curtis’s summary judgment

motion dismissing Jenny’s slander-of-title claim. Curtis appealed the district court’s

decision to grant summary judgment on her claims, and Jenny filed a notice of related

appeal regarding the grant of summary judgment on his claim.

                                     DECISION

       Summary judgment is appropriate where the entire record shows 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. A fact is material if it would affect the result or

outcome of the case. Zappa v. Fahey, 310 Minn. 555, 556, 245 N.W.2d 258, 259-60

(1976). No genuine issue of material fact exists “[w]here the record taken as a whole




                                             3
could not lead a rational trier of fact to find for the nonmoving party.” DLH, Inc. v. Russ,

566 N.W.2d 60, 69 (Minn. 1997) (alteration in original) (quotation omitted).

       Summary judgment is inappropriate where the nonmoving party presents

“sufficient evidence to permit reasonable persons to draw different conclusions.”

Schroeder v. St. Louis Cnty., 708 N.W.2d 497, 507 (Minn. 2006). If the evidence

presented would require the factfinder to “assess, evaluate, or determine credibility,”

summary judgment should not be granted. Carlson v. SALA Architects, Inc., 732 N.W.2d

324, 327 (Minn. App. 2007), review denied (Minn. Aug. 21, 2007). However, there is no

genuine issue of material fact when the nonmoving party only presents evidence that

“merely creates a metaphysical doubt as to a factual issue and which is not sufficiently

probative with respect to an essential element of the nonmoving party’s case . . . [T]he

party resisting summary judgment must do more than rest on mere averments.” DLH,

Inc., 566 N.W.2d at 71.

       On appeal from summary judgment, this court reviews de novo (1) whether a

genuine issue of material fact exists and (2) whether the district court erred in its

application of the law. Riverview Muir Doran, LLC v. JADT Dev. Grp., LLC, 790

N.W.2d 167, 170 (Minn. 2010) (citation omitted). In doing so, this court views the

evidence in the light most favorable to the party against whom summary judgment was

granted. STAR Ctrs., Inc. v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn.

2002) (citations omitted).




                                             4
                                             I.

         Curtis argues that four specific errors should preclude summary judgment as to

counts I-VIII, XI, XII, and XIV of her original complaint. Each is addressed in turn

below.

         A.    There is no genuine issue of material fact as to whether Jenny made
               statements to the bank regarding Curtis’s credit

         Counts XI and XII of Curtis’s claim alleged that Jenny committed defamation and

tortious interference with a business relationship by making statements to Bridgewater

Bank regarding Curtis’s creditworthiness, which resulted in the bank denying Curtis

financing to buy the property. The district court concluded that Jenny was entitled to

summary judgment on counts XI and XII because Curtis “has not submitted any

competent evidence that Jenny made any of the alleged statements.” Curtis argues that

the district court erred because she submitted two pieces of evidence of Jenny’s alleged

statements: (1) her own affidavit stating that Mr. Johnson of Bridgewater Bank told her

that someone called the bank and commented as to her creditworthiness the day before

the closing was scheduled, and (2) Jenny’s deposition testimony that he, his attorney, and

his realtor each called Bridgewater Bank the day before the closing.

         The district court concluded that Curtis’s testimony about Johnson’s statements to

her was not probative of whether the alleged statements were made, because Curtis’s

testimony was hearsay and its “evidentiary value rests on the truth of an unsworn

statement.”     Inadmissible hearsay must be disregarded on a motion for summary

judgment. Murphy v. Country House, Inc., 307 Minn. 344, 349, 240 N.W.2d 507, 511



                                             5
(1976). Curtis does not dispute the district court’s characterization of her testimony

regarding Johnson’s statements as hearsay, but she argues that Minn. R. Evid. 803(21)

makes her hearsay testimony admissible. Minn. R. Evid. 803(21) allows admission of

hearsay statements as to “[r]eputation of a person’s character among associates or in the

community.”

       The hearsay statements at issue are Johnson’s purported statements asserting that

someone called the bank and made statements regarding Curtis’s creditworthiness. Curtis

did not offer Johnson’s statements in order to show the reputation of anyone’s character

among associates or in the community. Rather, Curtis reported her conversation with

Johnson to prove that someone made statements to the bank regarding Curtis’s

creditworthiness. Because Curtis’s testimony as to Johnson’s statements was offered for

the purpose of proving the truth of the matter that the statements asserted, not for the

purpose of showing reputation, the statements were not admissible under Minn. R. Evid.

803(21). Therefore, the district court did not err by disregarding Curtis’s testimony as to

Johnson’s hearsay statements.

       The district court’s summary judgment order did not mention Jenny’s testimony

that he, his attorney, and his realtor all called the bank the day before the closing. Given

the timing of the phone calls, one could infer that these calls could have included

information about Curtis’s financing. However, when Jenny testified about the phone

calls to the bank, he stated that they were merely to inquire about the status of Curtis’s

loan and whether there was an appraisal scheduled for the property before the closing

date. Curtis did not offer any evidence showing that the phone calls also included


                                             6
statements as to her creditworthiness. Curtis asked the court to treat her mere inference

that the phone calls could have included such statements as probative of whether such

statements took place.

        At the time of the summary judgment hearing, Curtis had been unable to schedule

a deposition with Johnson to determine the content of the phone calls. The court stated

that it would wait for Johnson’s deposition to occur before it decided whether the three

phone calls had any probative value on the question of Jenny’s alleged statements to the

bank.

        Johnson’s eventual deposition did not substantiate Curtis’s speculation that the

phone calls included statements regarding her creditworthiness. Johnson stated that he

had never talked to or met Jenny. Johnson did not know whether anyone from the bank

had ever talked with Jenny, either before or after the scheduled closing date. Johnson did

not recall telling Curtis that someone had called the bank and made statements regarding

her creditworthiness. Johnson stated that sometimes realtors call the bank for a status

update on loan applications. In short, Johnson’s deposition did not provide any evidence

that the content of the calls included statements about Curtis’s creditworthiness.

Therefore, the district court was justified in concluding that the mere existence of the

phone calls was not probative as to whether Jenny made the alleged statements. Because

Curtis did not present any other evidence that Jenny made statements regarding her

creditworthiness, there is no genuine issue of material fact as to whether Jenny made the

alleged statements.




                                            7
       B.     There is no genuine issue of material fact as to whether the release was
              enforceable against Curtis

       The district court held that the release in the purchase agreement was enforceable

against Curtis and applied the release to dismiss counts I-VIII and XIV of Curtis’s

complaint. Curtis argues that the release was unenforceable because Jenny breached the

agreement and/or frustrated the purpose of the agreement by allegedly making the

representations discussed above regarding her creditworthiness, and that these

representations caused the bank to deny Curtis financing for the property. Curtis asserts

that genuine issues of material fact remain as to (1) whether Jenny made the alleged

statements to the bank, and if so (2) whether those statements caused the bank to

withdraw financing.

       As discussed above, the district court did not err by concluding that there was no

genuine issue of material fact as to whether Jenny made the alleged statements.

Furthermore, even if Curtis could show that Jenny made the statements, the record

included a letter that showed there was no genuine issue of material fact as to whether the

alleged statements caused the bank to withdraw financing. The letter pre-dated Jenny’s

alleged statements to the bank, and it stated reasons for denying Curtis credit that had

nothing to do with statements allegedly made by Jenny. Curtis does not challenge the

validity of the letter. Because the decision to deny Curtis credit was apparently made

before the statements Jenny allegedly made to the bank, the alleged statements cannot

have caused the bank to decide to withdraw financing. Therefore, there are no genuine




                                            8
issues of material fact that would undermine the enforceability of the release of claims in

the purchase agreement.

       C.     The release precluded several of Curtis’s claims

       Curtis additionally asserts that the district court erred as a matter of law in its

interpretation of the release in the June 2012 purchase agreement. “The construction and

effect of an unambiguous contract are questions of law and reviewable de novo.”

Banbury v. Omnitrition Int’l, 533 N.W.2d 876, 880 (Minn. App. 1995). In its entirety,

the release provision read as follows:

              Upon the execution of this agreement Seller shall be released
              from any and all claims by Buyer relating to the Property and
              resulting from his ownership thereof, except for Seller’s
              obligation to convey the property in the manner described in
              the Purchase Agreement upon the completed performance by
              Buyer.

       In the district court’s order granting summary judgment, the court grouped

together all of Curtis’s claims that related to the property, counts I-VIII and XIV. Curtis

does not challenge the court’s characterization of these counts as relating to the property.

Instead, Curtis asserts that the use of the conjunctive “and” in the release means that the

release only precludes claims that both relate to the property and result from Jenny’s

ownership of the property. See TCM Props., LLC v. Gunderson, 720 N.W.2d 344, 349

(Minn. App. 2006) (recognizing that when “and” is used, both elements must be present

for application of provision).

       Jenny argues that this contract-interpretation argument is not properly before this

court because Curtis did not raise it before the district court. On appeal, litigants are



                                             9
generally bound by the theories upon which the action was actually tried in the district

court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). Before the district court, the

only issues Curtis raised regarding the release were whether Curtis’s signature was valid

and whether the release was enforceable against her claims. Curtis should have raised all

arguments that would have prevented the court from enforcing the release against her

claims. Curtis never argued that, even if the release were enforceable, it should not apply

to any of the counts of her claim because of its conjunctive wording. Therefore, Curtis

appears to have waived this argument.

       Even if the contract-interpretation argument were properly before this court, it

would be unconvincing. The words “resulting from [Mr. Jenny’s] ownership” are very

broad. Therefore, they do little to restrict the types of claims to which the release applies.

All of the claims to which the district court applied the release could arguably be

“resulting from [Mr. Jenny’s] ownership,” because those specific claims would not have

arisen if Jenny had not owned the property. Given the broad language of the release, the

district court did not err by concluding that counts I-VIII and XIV were barred by the

release.

       Curtis argues here that, even if the release is valid and enforceable to preclude

some of her claims, she “may still recover under the issues related to breach of the

partnership.” Curtis asserts that there is a genuine issue of material fact as to whether the

partnership agreement existed. However, Curtis does not identify which specific claims

relate to breach of the partnership that would not be precluded by the release.




                                             10
       The district court concluded that all of the claims arising from the alleged

partnership were precluded by the release because they also related to the property. We

agree. Therefore, even if there was a genuine issue of material fact as to the existence of

the partnership agreement, it would not preclude summary judgment on any of Curtis’s

claims.

                                             II.

       Jenny asserts that the district court erred by granting summary judgment on his

slander-of-title claim against Curtis. A slander-of-title claim requires the claimant to

prove four elements, including the existence of a “false statement concerning the real

property” owned by the claimant. Paidar v. Hughes, 615 N.W.2d 276, 279-80 (Minn.

2000). A false statement exists where a party files a notice of lis pendens that the party

knows to be inoperative. See id. at 280. A slander-of-title claim fails if the party acts in

good faith and records an instrument that the party has a right to file. Kelly v. First State

Bank of Rothsay, 145 Minn. 331, 333, 177 N.W. 347, 347-48 (1920).                 The court

concluded that there were no genuine issues of material fact as to whether the notice of lis

pendens included a false statement, because Jenny did not present probative evidence that

Curtis filed the notice of lis pendens with knowledge that it was inoperative.

       Jenny argues that there is a genuine issue as to whether Curtis knew the notice of

lis pendens was inoperative at the time she filed it. Jenny’s argument relies on the

premise that Curtis knew, at the time that she filed the notice of lis pendens, that none of

the counts in her complaint had any merit. In support of this premise, Jenny argues that




                                             11
the release in the purchase agreement should have put Curtis on notice that her claims

were barred.

       We agree with the district court that the existence of a release would not

necessarily bar all of Curtis’s claims, because the parties clearly dispute the proper

application of the release. Nor does the failure of Curtis’s lawsuit provide any evidence

that Curtis filed the notice of lis pendens with knowledge that it was inoperative. As the

district court emphasized, to hold otherwise would mean that “every unsuccessful litigant

who filed a notice of lis pendens would be potentially liable for slander of title.”

       Jenny argues that he presented additional evidence that Curtis filed the notice of

lis pendens in bad faith and with knowledge that the notice was inoperative. Jenny

presented affidavits and deposition testimony from Curtis’s previous boyfriends and

business partners attesting to their relationships with Curtis, and evidence that Curtis filed

the notice of lis pendens near the same time that she wrote about her dispute with Jenny

on social media. Jenny introduced this evidence in an attempt to establish that Curtis had

a pattern of “maliciously and ruthlessly manipulating and coercing four men in an

attempt to enrich herself beyond any possible legal entitlement.” Jenny asserts that this

pattern-of-conduct evidence shows that Curtis acted in bad faith here, too.

       Although the court did not specifically invoke any evidentiary rules to exclude this

evidence, the district court could reasonably have concluded that this evidence was

inadmissible for the purposes for which Jenny offered it. On a motion for summary

judgment, affidavits are limited to “such facts as would be admissible in evidence.”

Minn. R. Civ. P. 56.05. “Evidence of another crime, wrong, or act is not admissible to


                                             12
prove the character of a person in order to show action in conformity therewith.” Minn.

R. Evid. 404(b).     However, such evidence may be admissible for other purposes,

including proof of intent, knowledge, or absence of mistake. Id. We review a district

court’s evidentiary rulings for an abuse of discretion. Doe 76C v. Archdiocese of St.

Paul, 817 N.W.2d 150, 164 (Minn. 2012).

       The pattern-of-conduct evidence Jenny submitted was apparently intended to

prove Curtis’s character in order to show that she acted in conformity with her prior

actions. In theory, this evidence could be admissible to show Curtis’s knowledge or

intent. However, this situation is sufficiently distinguishable from the other situations, so

the court could reasonably have concluded that the evidence of Curtis’s behavior in other

romantic and business relationships was not probative of Curtis’s knowledge or intent in

this situation. Therefore, Jenny has not shown that the district court abused its discretion

by treating the pattern-of-conduct evidence as inadmissible.

       Aside from the existence of the release and the pattern-of-conduct evidence, there

is no evidence in the record showing that Curtis filed the notice of lis pendens in bad faith

or with knowledge that it was inoperative. Therefore, the district court did not err by

concluding that there were no genuine issues of material fact as to whether Curtis’s notice

of lis pendens included a false statement. Curtis was entitled to summary judgment as a

matter of law on Jenny’s slander-of-title claim.




                                             13
      Because we agree with the district court that no genuine issues of material fact

exist that would preclude summary judgment on either of the parties’ claims, we affirm.

      Affirmed.




                                           14
