This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






Thomas J. Nemec, et ux.,





Clarence W. Clark, et ux.,



Filed August 22, 2000


Willis, Judge


Chisago County District Court

File No. C39881


Todd D. Donegan, Mark W. Benjamin, Lynell Barthel, Parker, Satrom, O’Neil & Benjamin, P.A., 123 South Ashland, Cambridge, MN  55008 (for appellants)


Darrell A. Jensen, Malcolm P. Terry, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Boulevard, Coon Rapids, MN  55433 (for respondents)


            Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Thomas J. Nemec challenges summary judgment in favor of respondent Clarence W. Clark on Nemec’s fraudulent-misrepresentation claim.  We affirm.



In August 1996, a Coldwell Banker Acclaim (CBA) real-estate agent, on behalf of respondent Clarence W. Clark, entered into an agreement with People’s Realty World (PRW) to co-list Clark’s Rush City house for sale through the Regional Multiple Listing Service of Minnesota.  The listing characterized Clark’s house as a “year round lakehome” but noted that the “family [room] is not heated but with doors open [and] fireplace going it is usable year round.” 

Appellant Thomas J. Nemec and his wife signed an agreement to purchase the house on August 13, 1996.  In the seller’s property disclosure statement, Clark stated that he had “occupied this home continuously for the past 12 months” and that the house is “suitable for year round use.”

            In October 1997, Nemec filed suit alleging that Clark had fraudulently misrepresented that the home was suitable for year-round use.  Nemec alleged that he had discovered “numerous problems with the home” during his first winter of ownership.  Nemec had hired Real Estate Inspection Experts, Inc. (REIE), to conduct an inspection of the home in July 1997.  REIE concluded that “extensive repairs are necessary to make the house suitable for year round occupancy.”  Nemec also had the house inspected by Brian’s Insulation, Inc., which concluded that “[t]his cabin is not suitable for year round use.”

            In November 1997, Clark filed third-party complaints against both PRW and CBA.  In August 1998, PRW moved for summary judgment against Nemec and Clark, asserting that because it is “without dispute” that Clark had lived in the house for six winters, Nemec did not have a viable misrepresentation claim.  The district court granted PRW’s motion, and Nemec did not appeal.

            In November 1998, Clark and CBA separately moved the district court for summary judgment.  Clark asserted the same argument presented by PRW, that because Clark had lived at the home for six winters, “the statement that it was a ‘year round’ house cannot be a misrepresentation.”  Clark argued that the court’s reasoning in granting summary judgment to PRW should “equally apply” to Clark’s motion.  CBA made the same argument.

            The district court granted CBA’s motion in February 1999 on the ground that the September 1998 summary-judgment order for PRW was the “law of the case.”  In August 1999, Nemec filed a “motion for trial date or clarification of disposition” requesting that the court set Nemec’s suit against Clark for trial because, Nemec argued, the September 1998 judgment could not properly serve as the law of the case with respect to Clark.  In the alternative, Nemec requested that the district court clarify whether it granted summary judgment to Clark in February so that Nemec could appeal.  In December 1999, the court stated that “[a]ll issues have been resolved by summary judgment” and that the February 1999 order did not specify that summary judgment was granted to Clark because of an administrative oversight.  The court ordered that judgment be entered nunc pro tunc pursuant to the February 1999 order.  Nemec appeals the grant of summary judgment to Clark.


On appeal from summary judgment, this court determines (1) whether there are any genuine issues of material fact and (2) whether the district court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  We view the evidence in the light most favorable to the party against whom summary judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  We will affirm summary judgment “if it can be sustained on any ground.”  Winkler v. Magnuson, 539 N.W.2d 821, 828 (Minn. App. 1995), review denied (Minn. Feb. 13, 1996).

The district court granted summary judgment to Clark on the ground that the court’s decision in granting summary judgment to PRW served as the “law of the case.”  The doctrine of the law of the case “is an amorphous concept.”  Arizona v. California, 460 U.S. 605, 618, 103 S. Ct. 1382, 1391 (1983).  In general, the doctrine provides that “a decision on an issue made by a court at one stage of a case should be given effect in successive stages of the same litigation.” United States v. Todd, 920 F.2d 399, 403 (6th Cir. 1990); see In re welfare of M.D.O., 462 N.W.2d 370, 375 (Minn. 1990) (citing Arizona, 460 U.S. at 618, 103 S. Ct. at 1391).  Many jurisdictions recognize that the doctrine of the law of the case has two distinct branches.  See, e.g., Prisco v. A & D Carting Corp., 168 F.3d 593, 607 (2nd Cir. 1999); Todd, 920 F.2d at 403 n.1; Powell-Cerkoney v. TCR-Montana Ranch Joint Venture, II, 860 P.2d 1328, 1331 (Ariz. Ct. App. 1993); State v. O’Neil, 848 P.2d 694, 697 (Utah Ct. App. 1993), overruled on other grounds by State v. Doporto, 935 P.2d 484 (Utah 1997).

Under the first branch of the doctrine, an

appellate court decision on a given issue establishes “the law of the case” which must be followed on remand in the [district] court or on a later appeal in the appellate court.


McClelland v. McClelland, 393 N.W.2d 224, 226 (Minn. App. 1986), review denied (Minn. Nov. 17, 1986); see Lange v. Nelson-Ryan Flight Serv., Inc., 263 Minn. 152, 155, 116 N.W.2d 266, 269 (1962) (discussing preclusive effect of appellate decision on subsequent appellate court).  It is clear that the first branch of the doctrine of the law of the case has been adopted in Minnesota.  See, e.g., Brezinka v. Bystrom Bros., Inc., 403 N.W.2d 841, 843 (Minn. 1987); Lange, 263 Minn. at 155-56, 116 N.W.2d at 269. 

Under the second branch of the doctrine of the law of the case, a district court may, in its discretion, decline to reconsider an issue previously decided by itself or a coordinate district court in the course of the same litigation.  See Todd, 920 F.2d at 403; Little Earth of the United Tribes, Inc. v. United States Dep’t of Hous. and Urban Dev., 807 F.2d 1433, 1441 (8th Cir. 1986); People ex rel. Gallagher v. District Court, 666 P.2d 550, 553 (Colo. 1983); United Air Lines, Inc. v. Hewins Travel Consultants, Inc., 622 A.2d 1163, 1167 (Me. 1993); Hayworth v. School Dist. No. 19, 795 P.2d 470, 471 (Mont. 1990); see also United States v. United States Smelting Ref. & Mining Co., 339 U.S. 186, 198-99, 70 S. Ct. 537, 544 (1950) (holding law-of-the-case doctrine inapplicable to district court’s previously issued temporary injunction because “nothing was finally decided”).  The purposes of the second branch of the doctrine are judicial economy and comity among coordinate district courts.  E.g., Todd, 920 F.2d at 403; United Air Lines, 622 A.2d at 1167; Hayworth, 795 P.2d at 471.  But it is not clear that the second branch of the law-of-the-case doctrine is available to Minnesota district courts.  See Kornberg v. Kornberg, 542 N.W.2d 379, 386 n.2 (Minn. 1996);[1] Loo v. Loo, 520 N.W.2d 740, 744 n.1 (Minn. 1994) (stating that doctrine is rule of practice “to effectuate the finality of appellate decisions”).  We need not, however, decide that issue here.

Nemec argues that the district court erred in granting summary judgment for Clark on Nemec’s fraudulent-misrepresentation claim.  A seller is liable for fraudulent misrepresentation in the sale of property if, with the intent to induce the purchaser to rely on the misrepresentation or when the purchaser is justified in acting in reliance, the seller (1) makes a false representation of a past or existing material fact knowing it to be false or (2) represents a material fact as his own knowledge without knowing whether it is true or false, and (3) the purchaser is deceived by the misrepresentation and induced to act in reliance on it to the purchaser’s pecuniary damage.  Hafner v. Ritzinger, 256 Minn. 196, 199-200, 97 N.W.2d 839, 842 (1959).  But “[i]t is axiomatic that fraud cannot be predicated on the truth” and thus a “true representation is not actionable.”  Franklin Theatre Corp. v. City of Minneapolis, 293 Minn. 519, 522, 198 N.W.2d 558, 560 (1972).

Nemec argues that Clark fraudulently misrepresented that the home was suitable for year-round use.  But Clark testified in a deposition that he had lived in the house through six winters.  At the hearing on Clark’s motion for summary judgment, the district court asked Nemec’s counsel, “You don’t have any evidence that [Clark] didn’t live there for six winters?”  Nemec’s counsel replied that he “hoped to produce a neighbor who will indicate whether or not the Clarks lived there continuously during the course of the winter.”  But a party opposing a summary-judgment motion may not rely on “promises to produce evidence at trial” to survive summary judgment.  Nicollet Restoration, Inc. v. City of St. Paul, 533 N.W.2d 845, 848 (Minn. 1995).  Thus, as Nemec’s counsel conceded at the hearing, whether or not there exists a genuine issue of material fact is dependant on the assertions in the reports from REIE and Brian’s Insulation, Inc., attached to Nemec’s affidavit in the district court proceeding.[2]

Nemec argues that the REIE report’s conclusion that “extensive repairs are necessary to make the house suitable for year round occupancy” creates a genuine issue of material fact sufficient to withstand Clark’s motion for summary judgment.  But the REIE report does not challenge Clark’s claim that he lived in the house for six winters, and it is not probative with respect to the essential element of Nemec’s claim—that Clark falsely represented that the house is a year-round house while knowing that representation to be false.  See DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).    And because mere conclusory statements are insufficient to defeat a summary judgment motion, the one-sentence conclusion of Brian’s Insulation, Inc., which states “[t]his cabin is not suitable for year round use,” does not create a genuine issue of material fact.  See Nowicki v. Benson Properties, 402 N.W.2d 205, 208 (Minn. App. 1987). 

We conclude, therefore, that the evidence, even when viewed in the light most favorable to Nemec, does not present a genuine issue of material fact sufficient to withstand Clark’s motion for summary judgment.  Thus, we affirm the district court and need not address the court’s reliance on the doctrine of the law of the case in granting Clark’s motion.



[1]   In Kornberg v. Kornberg, 525 N.W.2d 14 (Minn. App. 1994), this court concluded that the preclusive effect of the resolution of an issue by a district court on a subsequent district court in the same litigation, or, in other words, the second branch of the doctrine of the law of the case, was applicable.  525 N.W.2d at 18-19.  But on appeal, the supreme court affirmed the result of our decision on other grounds and declined to apply the doctrine of the law of the case, stating, in dictum, that “the doctrine is not normally applied by a district court to its own decisions.”  542 N.W.2d at 386 n.2.

[2] Clark argues that the reports were not properly before the district court because the documents were not sworn or certified copies.  See generally Minn. R. Civ. P. 56.05 (stating that sworn or certified copies of papers referred to in affidavit shall be attached thereto).  But Clark did not object to these documents in the district court, and technical defects do not require that supplemental documents be precluded from consideration where the party did not object in the district court.  Lundgren v. Eustermann, 370 N.W.2d 877, 881 (Minn. 1985); see 2 David F. Herr & Roger S. Haydock, Minnesota Practice § 56.30 (1998) (advising against “[o]verly strict adherence to the demands” of Rule 56.05).  We conclude that the reports were properly before the district court.