This opinion is nonprecedential except as provided by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
                                      A23-0651

                      Homestead Acres Homeowners Association, Inc.,
                                      Respondent,

                                             vs.

                              Hiscox Insurance Company, Inc.,
                                         Appellant.

                                  Filed January 29, 2024
                                         Affirmed
                                      Worke, Judge

                                Anoka County District Court
                                 File No. 02-CV-21-4759


Justice Ericson Lindell, Mihajlo Babovic, Greenstein Sellers PLLC, Minneapolis,
Minnesota (for respondent)

Christopher L. Goodman, Thompson, Coe, Cousins & Irons, L.L.P., St. Paul, Minnesota
(for appellant)


         Considered and decided by Bjorkman, Presiding Judge; Worke, Judge; and Ede,

Judge.

                            NONPRECEDENTIAL OPINION

WORKE, Judge

         Appellant challenges the district court’s order granting summary judgment in favor

of respondent, arguing that the district court erred when it: (1) determined that a settlement

agreement was a valid and separate contract, (2) determined that respondent did not breach
the terms of the insurance policy, and (3) failed to conclude that respondent was estopped

from enforcing the settlement agreement. We affirm.

                                            FACTS

         In 2018, respondent Homestead Acres Homeowners Association, Inc. (HOA)

submitted an insurance claim to appellant Hiscox Insurance Company, Inc. (Hiscox) for

hail damage that occurred in June 2017. The insurance policy provided that any action

against Hiscox must be “brought within two years” of the date of the loss.

         In June 2019, the parties entered into a tolling agreement extending the

suit-limitations period in the policy to “[ninety 1] (90) days from receipt of written

Appraisal Award Settlement document.” The tolling agreement further stated: “Written

Appraisal Award Settlement notice . . . shall be made to the parties at the addresses: [street

addresses identified].”

         The parties disagreed on the amount of the loss; accordingly, each selected an

appraiser, and the appraisers selected an umpire. On May 12, 2021, HOA’s appraiser and

the umpire signed the appraisal award for $513,731.73. The appraisal award was emailed

to the parties.

         Settlement negotiations began between the parties. These negotiations continued

until Hiscox’s counsel emailed HOA a settlement offer on August 24, 2021. In the email,

Hiscox’s counsel stated that he was “authorized to offer $500,000 in full and final

satisfaction of the [HOA] claim.” HOA emailed its acceptance of the settlement offer two



1
    The original tolling agreement contained the word “sixty” but was later edited to “ninety.”

                                                2
days later. HOA’s counsel wrote “[HOA] has decided to accept the $500,000 payment

offered by Hiscox.” Less than an hour later, Hiscox’s counsel replied: “I am glad to hear

we were able to reach an agreement in this case.” HOA began work to repair the hail

damage.

       On September 10, 2021, Hiscox emailed HOA its intention to revoke the settlement

agreement. The email stated that the terms of the tolling agreement invalidated the

settlement agreement as “time barred.” HOA placed the repairs on hold. The parties could

not come to an agreement and HOA filed suit against Hiscox seeking enforcement of the

settlement agreement.

       Both parties moved for summary judgment. A hearing on the motions was held.

The district court granted summary judgment in part in favor of HOA, determining that

there was no genuine issue of material fact that the settlement was enforceable, HOA’s

appraiser was impartial, and estoppel was not required. The district court entered a final

judgment of $500,000 in favor of HOA. This appeal followed.

                                        DECISION

       Summary judgment is appropriate when the moving party shows that “there is no

genuine issue as to any material fact and the movant is entitled to judgment as a matter of

law.” Minn. R. Civ. P. 56.01. On appeal from summary judgment, we review questions

of law, including the interpretation of an insurance policy and its application to undisputed

facts, de novo. Com. Bank v. W. Bend Mut. Ins. Co., 

 (Minn. 2015).

“A defendant is entitled to summary judgment as a matter of law when the record reflects

a complete lack of proof on an essential element of the plaintiff’s claim.” Lubbers v.


                                             3
Anderson, 

 (Minn. 1995). We must view the evidence in the light

most favorable to the party against whom summary judgment was granted. Cargill Inc. v.

Jorgenson Farms, 

 (Minn. App. 2006).

Settlement agreement

       Hiscox argues that the settlement agreement was unenforceable because the

suit-limitation period, which was extended by the tolling agreement, expired before the

action seeking to enforce the settlement agreement was enforced. Assuming without

deciding the suit-limitation period applies to an action brought to enforce the settlement

agreement, Hiscox has not shown that the district court erred in determining that the tolling

period had not expired. The district court concluded that the tolling period expired 90 days

after the written appraisal award was received at the physical addresses specified in the

tolling agreement. Because it was undisputed that the appraisal award was only delivered

via email and not to the physical addresses, the 90 days never started to run. Hiscox makes

a number of arguments about the district court’s analysis of the tolling period, but it does

not address the district court’s specific conclusion that notice of the written appraisal award

at the physical addresses identified, e.g., by mail, was required and did not occur. We do

not assume error on appeal. See Loth v. Loth, 

 (Minn. 1949); Luthen

v. Luthen, 

 (Minn. App. 1999) (applying this aspect of Loth). The

appellant has the burden to prove that the district court erred. See Noltimier v. Noltimier,

 (Minn. 1968) (dismissing appeal for inadequate record, stating that

appellant has burden to provide adequate record on appeal).




                                              4
      Hiscox also challenges the district court’s order granting summary judgment in

favor of HOA, arguing that HOA failed to establish that Hiscox breached the settlement

agreement.

      Pretrial settlements are “greatly favored, and such agreements will not lightly be set

aside by Minnesota courts.” Beach v. Anderson, 

 (Minn. App.

1988), rev. denied (Minn. Mar. 23, 1988); see also Skalbeck v. Agristor Leasing, 

 (Minn. App. 1986) (“Settlement agreements are presumed to be valid in

Minnesota.”).

      HOA’s pleaded claim in this matter was breach of contract by Hiscox.                A

breach-of-contract claim requires that the plaintiff prove three elements: (1) contract

formation, (2) performance of any conditions precedent, and (3) the defendant’s breach of

the contract. Park Nicollet Clinic v. Hamann, 

 (Minn. 2011).

      For a contract to be formed, there must be an offer, acceptance, and consideration

between the parties. Com. Assocs., Inc. v. Work Connection, Inc., 

(Minn. App. 2006). Whether a contract has been formed is a question of fact. See

Morrisette v. Harrison Int’l Corp., 

 (Minn. 1992).

      The formation of a contract “requires mutual assent among the parties involved in

the transaction.” SCI Minn. Funeral Servs., Inc. v. Washburn-McReavy Funeral Corp.,

 (Minn. 2011). “Mutual assent entails a meeting of the minds

concerning [a contract’s] essential elements.”     

 (alteration in original) (quotation

omitted). “Whether mutual assent exists is tested under an objective standard.” 

 A

contract is formed only after the parties have agreed “with reasonable certainty about the


                                            5
same thing and on the same terms.” Peters v. Mut. Benefit Life Ins. Co., 

 (Minn. App. 1988).

       Hiscox’s counsel emailed HOA stating that he was “authorized to offer $500,000 in

full and final satisfaction of the [hail-damage] claim, subject to the same terms and

conditions outlined in [his] previous correspondence.” The previous correspondence

outlined that “[s]ettlement would also be contingent on confidentiality and

non-disparagement provisions in a Settlement Agreement and Release, and with no

admission of liability from [Hiscox].”       Two days after he received the settlement

agreement, HOA’s counsel sent Hiscox a reply email that stated: “[HOA] has decided to

accept the $500,000 payment offered by Hiscox.” Hiscox’s counsel acknowledged HOA’s

acceptance in a reply email that read: “I am glad to hear we were able to reach an agreement

in this case.” The district court determined that there was no genuine issue of material fact

that there was a valid offer from Hiscox to HOA and that HOA accepted this offer. This

is supported by the record of the parties’ settlement-negotiation emails.

       Hiscox appears to argue that the district court erred when it determined that there

was no genuine issue of material fact that there was consideration for a settlement

agreement because Hiscox agreed to pay $500,000 in exchange for dismissal of HOA’s

claims.   Hiscox detailed the “essential elements” of the settlement agreement in its

correspondence with HOA.




                                             6
       “Whether a stipulation is supported by consideration is a legal question, which we

review de novo.”      Kielley v. Kielley, 

 (Minn. App. 2004).

“Consideration may consist of either a benefit accruing to a party or a detriment suffered

by another party.” Cityscapes Dev., LLC v. Scheffler, 

 (Minn. App.

2015) (quotation omitted).

       Here, the settlement agreement was “contingent on confidentiality and

non-disparagement provisions in a Settlement Agreement and Release, and with no

admission of liability from [Hiscox].” The settlement agreement included specific details

regarding how Hiscox reached the actual cash value for the claim, including the deductible,

depreciation, length of repairs, purpose for the settlement offer, and amount of accrued

interest. The settlement agreement also “offer[ed] the foregoing points in the hopes it

w[ould] show . . . HOA that Hiscox’s offer is more than reasonable.” The district court

determined that there was no genuine issue of material fact that “the parties’

correspondence regarding settlement . . . show[ed] that there ha[d] been a meeting of the

minds on the essential terms of the agreement.” The district court did not err in its

conclusion that the settlement agreement was supported by valid consideration.

       Therefore, viewing the facts in the light most favorable to the nonmoving party, the

district court did not err in its determination that a valid contract was formed.

       The settlement agreement does not contain any conditions precedent. Interpretation

of an unambiguous contract, like a settlement agreement, is a question of law that we




                                              7
review de novo. 2 Roemhildt v. Kristall Dev., Inc., 

 (Minn. App.

2011), rev. denied (Minn. July 19, 2011). “A condition precedent is a contract term that

calls for the performance of some act or the happening of some event after the contract is

entered into, and upon the performance or happening of which [the promisor’s] obligation

is made to depend.” Capistrant v. Lifetouch Nat’l Sch. Studios, Inc., 

(Minn. 2018) (alteration in original) (quotation omitted). When a contract does not contain

any conditions precedent, as is the case here, this element of a breach-of-contract claim

does not apply. See, e.g., Hegseth v. Am. Fam. Mut. Ins. Grp., 

 (Minn.

2016).

         On September 10, 2021, Hiscox revoked the settlement agreement and alleged that

the claim was “time barred” under the tolling agreement. A breach of contract is “a failure,

without legal excuse, to perform any promise that forms the whole or part of the contract.”

Lyon Fin. Servs., Inc. v. Ill. Paper & Copier Co., 

 (Minn. 2014). In

the revocation email, Hiscox’s counsel stated, “we have been authorized to offer the sum

of $200,000.00 in full and final satisfaction of all claims [HOA] has or could have asserted

against Hiscox.” The district court determined that there was no genuine issue of material

fact that Hiscox “failed to perform its obligation to pay [HOA] $500,000.00 under the

parties’ settlement agreement.” This is supported by the record of the revocation email.




2
  We note that Hiscox does not challenge the district court’s determination that the
settlement agreement was unambiguous; therefore, it has forfeited any argument to the
contrary on appeal. See Thiele v. Stich, 

 (Minn. 1988).

                                             8
Therefore, viewing the facts in the light most favorable to the nonmoving party, the district

court’s determination was not clearly erroneous.

Impartial appraiser

       Hiscox contends that because HOA was required to select an impartial appraiser and

failed to do so, the settlement agreement is unenforceable. 3 Hiscox argues that HOA

breached the appraisal provision in the policy when it hired an appraiser with an interest

associated with HOA. Hiscox asserts that HOA’s selection of its appraiser amounts to a

material breach, removing the requirement that it perform under the policy rendering the

settlement agreement unenforceable. While we agree that the policy required HOA to

select an impartial appraiser, we need not decide this issue as Hiscox has failed to cite any

legal authority supporting its argument that breach of this duty would invalidate the

settlement agreement. 4

Equitable estoppel

       Hiscox argues that HOA should be equitably estopped from enforcing the settlement

agreement because HOA failed to select an impartial appraiser. We are not persuaded.

       “[A] district court’s conclusion on equitable estoppel after a bench trial is reviewed

for abuse of discretion.” City of North Oaks v. Sarpal, 

 (Minn. 2011).

Although a deferential standard of review is appropriate when a district court balanced the

equities and determined not to award equitable relief, we review a district court’s



3
 The term “impartial” is not defined by the policy.
4
 See State Dep’t of Labor & Indus. v. Wintz Parcel Drivers, Inc., 

(Minn. 1997) (declining to address an inadequately briefed issue).

                                             9
determination—in a summary-judgment proceeding—that equitable relief is not available

as a matter of law de novo. See SCI, 

; see e.g., Herlache v. Rucks,

, 450 n.4 (Minn. 2023) (noting that de novo review applies to district

court’s “equitable determinations . . . made as a matter of law on summary judgment”);

Melrose Gates, LLC v. Moua, 

 (Minn. 2016) (concluding that

deferential standard of review was not justified when district court “neither weighed

equities, nor made its decision based on factual findings that it was uniquely well-suited to

make,” but rather decided equitable relief was not available as a matter of law).

       The party seeking to invoke the doctrine of equitable estoppel has the burden to

prove the following three elements: “(1) that promises or inducements were made; (2) that

it reasonably relied upon the promises; and (3) that it will be harmed if estoppel is not

applied.” Eide v. State Farm Mut. Auto. Ins. Co., 

 (Minn. App.

1992). 5

       Here, during a summary-judgment proceeding, the district court reviewed the

parties’ written submissions. One of HOA’s summary-judgment arguments put forth to

the district court was that Hiscox’s estoppel claim failed as a matter of law. The district



5
  Hiscox’s brief suggests that we must consider six elements of estoppel when a claimant
intends to estop another from enforcing a contract. See SN4, LLC v. Anchor Bank, FSB,

 (Minn. App. 2014) (determining that based on these circumstances,
doctrine of equitable estoppel did not preclude application of statute of frauds to a land sale
contract), rev. denied (Minn. Sept. 16, 2014). In SN4, the six-element test pertained to
when the application of the statute of frauds would “protect, rather than prevent, a fraud,”
stating that in this context “equity require[d] that the doctrine of equitable estoppel be
applied.” 

 (quotation omitted). Because the statute of frauds does not apply to Hiscox’s
equitable estoppel claim, like in SN4, the three-element test in Eide controls.

                                              10
court, in denying Hiscox’s summary-judgment motion, noted that although it was “troubled

by the [impartiality] allegations as set forth by [Hiscox,] . . . this [c]ourt concludes it does

not rise to the level of equitably estopping [HOA] from enforcing the settlement

agreement.” The district court concluded that Hiscox “failed to demonstrate it is entitled

to judgment as a matter of law” and denied Hiscox’s summary-judgment motion. On this

record, we are unable to discern the precise reasoning the district court applied in denying

Hiscox’s equitable estoppel claim, thereby obscuring the applicable standard of review.

But we need not determine which standard of review—abuse of discretion or de novo—to

apply, because Hiscox’s equitable estoppel claim fails under both. Accordingly, we cannot

conclude that the district court erred when it determined that Hiscox was not entitled to

equitable relief, nor was the court’s equitable estoppel determination an abuse of its

discretion.

       Affirmed.




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