This opinion will be unpublished and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

A15-1325

Excel Manufacturing, Inc.,

Appellant,

vs.

Todd Wondrow, et al.,

Respondents.

Filed April 18, 2016

Affirmed

Randall, Judge*

Winona County District Court

File No. 85-CV-15-502

Patrick W. Michenfelder, Gries Lenhardt Michenfelder Allen, PLLP, St. Michael, 

Minnesota (for appellant)

Kay Nord Hunt, Keith J. Broady, Lommen Abdo, P.A., Minneapolis, Minnesota (for 

respondents)

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

Randall, Judge. 

 * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to 

Minn. Const. art. VI, § 10.
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U N P U B L I S H E D O P I N I O N

RANDALL, Judge

Appellant challenges the district court’s summary-judgment dismissal of its lawsuit. 

We affirm.

FACTS

Respondents Todd Wondrow and Aaron Krueger are former employees of appellant 

Excel Manufacturing Inc. (Excel). Excel is a Minnesota business that designs and 

manufactures horizontal balers for the recycling industry. Excel was founded in 1991 by 

Bryan Fisher. Fisher hired Wondrow in 2005 to serve as President of Excel. Wondrow 

hired Krueger in 2005 to serve as the company’s sales manager. Fisher died in 2010, and 

his son, Andrew Archer, became the new owner and CEO of Excel. Archer fired Wondrow 

in June 2010. Krueger resigned from Excel in March 2011. Shortly after Wondrow left 

Excel, respondent Maren Engineering Corp. (Maren) hired him to serve as its president. 

Maren is an Illinois company that also designs and manufactures horizontal balers for the 

recycling industry. Maren later hired Krueger to serve as its director of sales and 

marketing. 

In January 2012, Maren introduced a new baler called the ProPAK60. After 

learning of the ProPAK60, Excel brought a lawsuit against Maren, Wondrow, and Krueger, 

alleging that the ProPAK60 was virtually identical to Excel’s EX63 baler and that Maren 

relied on Excel’s trade secrets and other confidential information provided by Wondrow 

and Krueger to develop the ProPAK60. The district court dismissed the lawsuit without 

prejudice in September 2012.
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Excel served a second complaint on Maren, Wondrow, and Krueger on January 30, 

2015. Excel’s complaint alleged that during the course of employment at Excel, 

Wondrow and Krueger’s duties and responsibilities required 

them to be exposed to and gain knowledge of [Excel’s] 

confidential, proprietary and trade secret business information 

including, but not necessarily limited to, books, records, notes 

and other information relative to customers, their needs and the 

products used by them; customer lists, supplier lists and 

distributor lists; product sales and other performance 

information; business policies; financial information, sales 

forecasts, accounts payable and receivable; engineering prints, 

product specifications, pricing information, marketing plans, 

customer orders, models, product manuals, equipment, bills of 

materials, nesting information, and business and 

manufacturing methods and processes.

Excel alleged that Wondrow and Krueger were exposed to, and gained knowledge of “the 

EX62/63 design prints, product specifications, pricing information, marketing plans and 

potential customers, product manuals, manufacturing methods and processes, supplier lists 

and distributor lists, product performance information, bills of materials, and nesting 

information.” Excel stated that it put measures in place to protect its “confidential, 

proprietary and trade secret information,” including 

allowing access to such information only on a need-to-know 

basis, requiring employees to sign confidentiality agreements, 

requiring employees to use a unique user name and password 

to access information maintained on [Excel’s] computers and 

servers, keeping documents in locked offices and in locked 

cabinets, and keeping documents in a safe-deposit box at 

Eastwood Bank in St. Charles, Minnesota.

In its complaint, Excel further alleged that after Wondrow and Krueger departed, 

Excel discovered that employment agreements and confidentiality agreements they had 

signed were missing from their personnel files. Excel asserted that “[u]pon information 
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and belief, those documents have been removed from Wondrow’s and Krueger’s personnel 

files by Wondrow and/or Krueger or at their direction.”

Excel asserted that Maren’s ProPAK60 is “virtually identical to [Excel’s] EX63 

baler.” Excel alleged that Maren “could not have independently designed and 

manufactured a horizontal two ram closed-door baler with such uncanny similarities to the 

EX62/63 in such a short amount of time without the benefit of [Excel’s] confidential, 

proprietary and trade secret information relative to the EX62/63.” Lastly, Excel’s 

complaint alleged that, “[b]ased upon the foregoing, the ProPAK60 was engineered and 

manufactured based on confidential information and trade secrets stolen by Wondrow and 

Krueger from Excel Manufacturing.” 

Based on these facts, Excel alleged misappropriation of trade secrets under the 

Minnesota Uniform Trade Secrets Act (MUTSA), misappropriation of confidential 

information, conversion, breach of the employment agreements, breach of the 

confidentiality agreements, tortious interference with contract, unfair competition, unjust 

enrichment, and civil conspiracy. 

In their joint answer, respondents stated that Excel’s baler “has not undergone a 

substantial modification or change since the mid-1990s; that the Excel baler and how it 

operates is generally known in the marketplace, is readily ascertainable, there are no patents 

for the Excel baler and the information is not novel; that since the mid-1990s substantial 

advances have been made in the design, manufacture and operation of balers; [and] that the 

Excel baler has become out of date.” Respondents further stated that “any alleged secrets 

or confidential information of the Excel baler are generally known and readily 
5

ascertainable from a cursory inspection of the Excel baler.” Respondents attached a 

printout of Excel’s web page, which provided photographs and general specifications for 

Excel’s baler model EX62 and model EX63.

Respondents moved to dismiss on the grounds that the complaint failed to state a 

claim upon which relief could be granted. Respondents also moved, in the alternative, for 

summary judgment. Respondents submitted affidavits from Wondrow, Krueger, and 

Miranda Muller, a former Excel human resources employee. In his affidavit, Wondrow 

stated that he and Fisher were personal friends and that “[n]either Bryan Fisher nor anyone 

at Excel ever asked me to sign any employment agreement or [confidentiality] agreement 

and I do not recall ever signing such agreements.” Krueger stated that Wondrow hired him 

and that “[n]either Todd Wondrow nor anyone at Excel ever asked me to sign any 

employment agreement or [confidentiality] agreement and I never signed such 

agreements.” Muller stated that Excel’s employee personnel files were kept in her office 

and she did “not recall seeing an employment contract or confidentiality agreement signed 

by Todd Wondrow or by Aaron Krueger.” Excel submitted an affidavit from Archer in

which he repeated verbatim many of the allegations contained in Excel’s complaint. 

The district court treated respondents’ motion as a motion for summary judgment. 

The district court granted summary judgment and dismissed all of Excel’s claims with 

prejudice. Excel appeals.
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D E C I S I O N

I.

Excel argues that the district court erred by converting respondents’ motion to 

dismiss under rule 12 into a summary-judgment motion under rule 56. Under the rules of 

civil procedure,

[i]f, on a motion asserting the defense that the pleading fails to 

state a claim upon which relief can be granted, matters outside 

the pleading are presented to and not excluded by the court, the 

motion shall be treated as one for summary judgment and 

disposed of as provided in Rule 56, and all parties shall be 

given reasonable opportunity to present all material made 

pertinent to such a motion by Rule 56.

Minn. R. Civ. P. 12.02. We review a district court’s compliance with rule 12.02 de novo. 

See Shamrock Dev., Inc. v. Smith, 754 N.W.2d 377, 382 (Minn. 2008) (stating that appellate 

courts “review the construction and application of the Minnesota Rules of Civil Procedure 

de novo”). 

Excel argues that “the district court improperly applied a Rule 56 analysis and 

dismissed [its] claims before any discovery could be conducted,” and “[b]ecause Excel was 

not permitted to conduct any discovery, it was not permitted a ‘reasonable opportunity to 

present all relevant materials’ and therefore should . . . have been judged by rule 12 

standards.” But respondents put Excel on notice that they were seeking summary judgment

in the alternative, and both parties submitted affidavits.

Minn. R. Civ. P. 56.06 states:

Should it appear from the affidavits of a party opposing the 

[summary-judgment] motion that the party cannot for reasons 

stated present, by affidavit, facts essential to justify the party’s 
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opposition, the court may refuse the application for judgment 

or may order a continuance to permit affidavits to be obtained 

or depositions to be taken or discovery to be had or may make 

such other order as is just.

“An affidavit filed pursuant to rule 56.06 must be specific about the evidence expected, the 

source of discovery necessary to obtain the evidence, and the reasons for the failure to 

complete discovery to date.” Molde v. CitiMortgage, Inc., 781 N.W.2d 36, 45 (Minn. App. 

2010) (quotation omitted). When determining whether to grant a continuance to allow 

discovery prior to a determination of a summary-judgment motion, “the court considers 

first, whether the moving party has been diligent in obtaining or seeking discovery and, 

second, whether the moving party seeks further discovery with the good faith belief that 

material facts will be uncovered, or is merely engaging in a fishing expedition.” Cargill 

Inc. v. Jorgenson Farms, 719 N.W.2d 226, 231 (Minn. App. 2006) (quotation omitted). 

Even though Excel knew respondents were seeking summary judgment, and both 

parties submitted matters outside the pleadings, Excel did not seek a continuance and did 

not submit an affidavit providing reasons why it could not present facts essential to justify 

its opposition to summary judgment. See Molde, 781 N.W.2d at 45 (stating that “failure to 

submit . . . an affidavit [under rule 56.06], by itself, justifies the district court’s decision to 

rule on the motion without granting relief under rule 56.06”). Moreover, on appeal Excel 

does not identify what facts it believes it could have uncovered that would have been 

pertinent to the summary-judgment determination. In sum, Excel has not demonstrated 

that the district court erred. The district court properly treated respondents’ motion as a 

motion for summary judgment.
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II.

Excel argues that the district court should not have granted summary judgment. “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.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993). “[Appellate courts] 

review a district court’s summary judgment decision de novo. In doing so, [they]

determine whether the district court properly applied the law and whether there are genuine 

issues of material fact that preclude summary judgment.” Riverview Muir Doran, LLC v. 

JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010) (citation omitted). “On appeal, 

the reviewing court must view the evidence in the light most favorable to the party against 

whom judgment was granted.” Fabio, 504 N.W.2d at 761. There is no genuine issue of 

material fact for trial “when the nonmoving party presents evidence which 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 to permit reasonable persons 

to draw different conclusions.” DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn.1997). “[T]he 

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

MUTSA

MUTSA prohibits the improper acquisition, use or disclosure of trade secrets. 

Minn. Stat. §§ 325C.01, subd. 3, .02-.03 (2014). Respondents argue that summary 

judgment was appropriate because Excel failed to establish the existence of a trade secret. 
9

“Trade secret” means information, including a formula, 

pattern, compilation, program, device, method, technique, or 

process, that:

(i) derives independent economic value, actual or potential, 

from not being generally known to, and not being readily 

ascertainable by proper means by, other persons who can 

obtain economic value from its disclosure or use, and

(ii) is the subject of efforts that are reasonable under the 

circumstances to maintain its secrecy.

Minn. Stat. § 325C.01, subd. 5 (2014). 

Excel presented a laundry list of items related to the EX63, such as the design prints, 

product specifications, pricing information, marketing plans and potential customers. 

Excel also alleged that Maren’s ProPAK60 was “virtually identical” to the EX63. But 

Excel never specified exactly which items were trade secrets or how any such items 

constituted trade secrets under the statute. General categories of information are not 

sufficiently specific to qualify as trade secrets under the statute. See Electro-Craft Corp. 

v. Controlled Motion, Inc., 332 N.W.2d 890, 898 (Minn. 1983) (concluding that district 

court findings of “trade secrets in the general ‘design procedures’ for [a] brushless motor” 

lacked sufficient specificity and that “[t]his lack of clarity is fatal to [plaintiff’s] claim”); 

see also Luigino’s, Inc. v. Peterson, 317 F.3d 909, 912 (8th Cir. 2003) (concluding that 

“research and development information,” “financial information,” and “income statements 

and documents reflecting volume and sales margins” were “merely general categories of 

information, insufficiently specific to qualify as trade secrets”). Excel presented only 

general categories of information, which do not qualify as trade secrets.

Moreover, to constitute a trade secret, information must “not be generally known 

or readily ascertainable.” Electro-Craft Corp., 332 N.W.2d at 898. Respondents submitted 
10

evidence that the EX63 product specifications were online and generally available. Excel 

did not present any evidence to create a genuine issue of material fact on this issue. See 

DLH, Inc., 566 N.W.2d at 71 (“[T]he party resisting summary judgment must do more than 

rest on mere averments.”). Summary judgment on this claim was appropriate.1

Breach of Employment and Confidentiality Agreements

Excel stated in its complaint that, after Wondrow and Krueger left the company, 

their personnel files did not contain employment and confidentiality agreements, and that 

“[u]pon information and belief, those documents have been removed from Wondrow’s and 

Krueger’s personnel files by Wondrow and/or Krueger or at their direction.” In support of 

their motion to dismiss, respondents submitted affidavits from Wondrow and Krueger 

stating that they did not sign employment or confidentiality agreements. Excel did not 

submit any evidence to dispute Wondrow’s and Krueger’s statements to create a genuine 

issue of material fact on these claims. “To forestall summary judgment, the nonmoving 

party must do more than rely on unverified or conclusionary allegations in the pleadings 

or postulate evidence which might be produced at trial.” W.J.L. v. Bugge, 573 N.W.2d 

677, 680 (Minn. 1998) (quotation omitted). Excel failed to present more than the 

 1 Respondents also argue that summary judgment on Excel’s MUTSA claim was proper 

because it was time-barred. Minn. Stat. § 325C.06 (2014), states: “An action for 

misappropriation must be brought within three years after the misappropriation is 

discovered or by the exercise of reasonable diligence should have been discovered.” Excel 

presented an affidavit from Archer, who stated that he “did not become aware of the 

manufacture and sale of the ProPAK60 until after January 2012.” Because Archer’s 

affidavit creates a genuine issue of material fact as to whether Excel’s MUTSA claim is 

time-barred, we do not affirm summary judgment on the MUTSA claim on this basis.
11

conclusory allegations in its complaint. Summary judgment was appropriate on the breachof-contract claims.

Tortious Interference With Contract

“A cause of action for wrongful interference with a contractual relationship requires: 

(1) the existence of a contract; (2) the alleged wrongdoer’s knowledge of the contract; 

(3) intentional procurement of its breach; (4) without justification; and (5) damages.” 

Kjesbo v. Ricks, 517 N.W.2d 585, 588 (Minn. 1994) (quotation omitted). Excel alleged 

that Maren interfered with Wondrow’s and Krueger’s employment and confidentiality 

agreements. Because Excel did not present evidence sufficient to establish an issue of fact 

as to whether those contracts existed, summary judgment was appropriate on this claim.

Misappropriation of Confidential Information, Conversion, Unfair Competition, Unjust 

Enrichment, and Civil Conspiracy

Excel failed to present sufficient evidence to establish a genuine issue of material 

fact with respect to these claims. In his affidavit, Krueger stated: “During my employment 

with Excel and Maren, my responsibilities were always in sales and never included any 

work on the design or manufacture of balers.” Wondrow stated in his affidavit: “Neither 

I nor anyone else on the team [at Maren] used any confidential, proprietary or trade secret 

information from Excel or any other baler manufacturer in the design and manufacture of 

the ProPAK60.” In response, Archer’s affidavit merely restated the allegations from the 

complaint and added:

Based on my years of experience in the baler industry, 

including but not limited to the engineering and manufacturing 

of industrial balers as well as the circumstances described 

herein, I believe the ProPAK60 was engineered and 
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manufactured based on confidential information and trade 

secrets misappropriated by Wondrow, Krueger, and [Maren] 

from [Excel].

Archer’s statements amount to unverified and conclusory allegations. See W.J.L., 573 

N.W.2d at 680. Moreover, “affidavits [must] be based on personal knowledge.” City of 

Faribault v. One 1976 Buick LeSabre, 408 N.W.2d 584, 586 (Minn. App. 1987); see also

Minn. R. Civ. P. 56.05 (“Supporting and opposing affidavits shall be made on personal 

knowledge, shall set forth such facts as would be admissible in evidence, and shall show 

affirmatively that the affiant is competent to testify to the matters stated therein.”). Archer 

does not claim personal knowledge as to what information Wondrow and Krueger had 

access to when they worked at Excel, whether Wondrow or Krueger took confidential 

information with them when they left Excel, or whether they or anyone else used Excel’s 

confidential information to engineer and manufacture the ProPAK60. The allegations 

contained in Archer’s affidavit amount to speculation. “[M]ere speculation, without some 

concrete evidence, is not enough to avoid summary judgment.” Osborne v. Twin Town 

Bowl, Inc., 749 N.W.2d 367, 371 (Minn. 2008) (quotation omitted). Again, summary 

judgment on these issues was appropriate.

Affirmed.