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Production Resource Group6/29/2004
Appellant Thomas J. Van Hercke challenges the district court's decision (1) granting respondents' motion for summary judgment; (2) dismissing appellant's counterclaims; and (3) awarding damages to respondents. Respondents Production Resource Group L.L.C., et al. claim the district court abused its discretion in denying their motion to amend their complaint to seek punitive damages and in failing to award the full amount of their claimed damages. We affirm as modified.
DECISION
I.
Initially, we note that in his brief to this court appellant asks this court to remand this matter for arbitration. But this issue is not properly before us. In an order dated December 23, 2003, this court dismissed the part of appellant's appeal that was from the order denying appellant's motion to compel arbitration on the ground that state and federal law preclude review of a motion to compel arbitration after conclusion of the litigation.
II.
Appellant argues that the district court erred in granting respondents summary judgment on liability and dismissing his counterclaims. "On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law." State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). When reviewing the district court, we must view the evidence in the light most favorable to the party against whom judgment was granted. Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).
A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law. Minn. R. Civ. P. 56.03. No genuine issue of material fact exists where the record taken as a whole 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). " he party resisting summary judgment must do more than rest on mere averments." Id. at 71. A genuine issue for trial must be established by substantial evidence. Id. at 70.
Respondents' Summary Judgment Motion
Appellant contends that the district court erred in finding that there were no genuine issues of material fact as to whether he breached his employment agreement. But appellant cites no legal authority and makes no argument in support of this claim. And mere assertion not supported by argument or authority is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection. State v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997).
Moreover, if we consider the merits of appellant's claim, we conclude that the record supports the district court's decision. Admissions by appellant in his deposition testimony indicate that he violated the terms of the June 21, 2000, amendment to his employment contract. The amended employment agreement stated that while appellant is to assist respondents in effectuating the sale of Haas: (1) appellant was to have no independent negotiating authority; (2) respondents, not appellant, were to determine the fair value of Haas; and (3) management participation in any sale was to be discussed only after economic terms have been agreed upon by buyer and respondents. Here, the record supports the district court's determination that appellant breached his employment agreement by negotiating the specific sales price and by engaging in discussions regarding his involvement in Haas's management after the sale.
Appellan
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