This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
St. Louis County District Court
File No. C300602100
William D. Paul, 1217 East First Street, Duluth, MN 55805 (for appellant)
Alan L. Mitchell, St. Louis County Attorney, Shaun R. Floerke, Assistant County Attorney, Suite 501, 100 North Fifth Avenue West, Duluth, MN 55802-1298 (for respondent)
Considered and decided by Harten, Presiding Judge, Anderson, Judge, and Stoneburner, Judge.
Appellant Frank Watczak appeals from summary judgment granted to respondent Chris Jensen Nursing Home on his claims of negligent misrepresentation, negligent nondiscosure, and breach of contract claims. We affirm.
In 1997, when appellant’s wife needed nursing-home care due to acute Alzheimer’s disease, appellant admitted her to respondent Chris Jensen Nursing Home. Appellant chose the nursing home because it was only six blocks from his home. Appellant spent most of his waking hours at his wife’s side and wanted her resuscitated if necessary. Beginning approximately one week after his wife’s admission, the head nurse at the nursing home suggested several times that appellate sign a “do not resuscitate order,” but appellant consistently declined to sign such an order.
Appellant testified at his deposition that the nursing home promised that “[i]f anything happened to [his wife] no matter how long it took, that they would still try resuscitating her.” Appellant testified that he “would have never placed her in [the nursing home] if they didn’t tell me that they would resuscitate her if she needed it.” Appellant spoke about resuscitation with a nurse named “Jean” who was “in charge of the floor” where his wife was located: “I said ‘Do your nurses know how to give resuscitation if the person needs it?’ And she said, ‘Yes, they can do it.’” Appellant also testified that he asked all of the nurses on duty when he was there if they would resuscitate his wife, and they all said they would “if she needed it.”
At approximately 3:45 a.m. on June 26, 2000, the attending night-shift nurse checked appellant’s wife and found that she had no blood pressure, no pulse, and no respiration. The nurse also found that appellant’s wife had an oximeter reading of zero (meaning no oxygen circulation to tissues), that she was cool to the touch, and that her blood had begun to mottle away from her skin, indicating that the blood was settling in the body. The nurse concluded that appellant’s wife was dead and that performing cardiopulmonary resuscitation (CPR) would be pointless. The nurse who discovered appellant’s wife’s death was not one of the nurses with whom appellant had discussed CPR.
Appellant does not dispute that his wife was dead when found by the nurse. He does not claim that CPR would have revived his wife or that the nursing-home staff failed to use the appropriate standard of care for his wife. Appellant contends that the nursing home had an oral contract with him to try resuscitation under any circumstances. He also argues that the nursing-home staff had represented to him that resuscitation would be performed regardless of his wife’s condition and that he relied on these misrepresentations to his detriment. Appellant sued the nursing home for breach of contract, negligent misrepresentation, and negligent nondisclosure, seeking as damages reimbursement for all monies he paid to the nursing home. The district court granted the nursing home’s motion for summary judgment, concluding that, as a matter of law, the nursing home did not enter into a contract with appellant to perform resuscitation on his wife after her death and that representations about resuscitation were not representations of the type that can support an action for negligent misrepresentation. This appeal followed.
On appeal from summary judgment, this court asks (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). No genuine issue of material fact exists when “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) (quotation omitted). “[T]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 69-70.
Appellant asserts that the district court erred by granting respondent’s motion for summary judgment, sua sponte, on a basis not asserted or argued by the parties because the district court stated, in the memorandum attached to the order granting summary judgment, that appellant’s claims are improperly framed as breach of contract and negligent misrepresentation claims and could only be properly raised in a medical malpractice claim. Nonetheless, the district court analyzed the claims stated by appellant. Summary judgment was based on the district court’s analysis of the claims asserted and argued, rather than on the conclusion that the claims were improperly asserted. Because the issue of malpractice as the exclusive remedy was not argued by the parties, we address the claims asserted by appellant without reaching the issue of whether appellant should have asserted the claims in a malpractice action.
For appellant to establish a claim of negligent misrepresentation:
1. There must be a representation;
2. That representation must be false;
3. It must have to do with a past or present fact;
4. The fact must be material;
5. It must be susceptible of knowledge;
6. The representor must know it to be false, or in the alternative, must assert it as of his own knowledge without knowing whether it is true or false;
7. The representor must intend to have the other person induced to act, or justified in acting upon it;
8. That person must be so induced to act or so justified in acting;
9. That person’s action must be in reliance upon the representation;
10. That person must suffer damage;
11. That damage must be attributable to the misrepresentation, that is, the statement must be the proximate cause of the injury.
Davis v. Re-Trac Mfg. Corp., 276 Minn. 116, 117, 149 N.W.2d 37, 38-39 (1967).
Appellant has failed to present evidence that the nursing home promised him that CPR would be performed on his wife even after her death, and he admits that he was only told that she would receive CPR “if needed.” Although appellant testified that he believed he was being told that CPR would be administered even after death, no evidence in the record supports appellant’s conclusion. Appellant has not provided evidence that the nursing home failed to provide “needed” CPR as promised. Also, the district court correctly concluded that the representations made were about future actions and, therefore, do not constitute actionable representations. Because appellant has failed to establish a prima facie case of negligent misrepresentation the district court did not err by granting summary judgment on this claim.
Appellant also argues that the nursing home’s failure to provide him with a copy of its written policy to refrain from administering CPR in the event of an unwitnessed cardiac arrest constitutes negligent misrepresentation. A misrepresentation may be made by concealing or not disclosing facts that render disclosed facts misleading. M.H. v. Caritas Family Servs., 488 N.W.2d 282, 289 (Minn. 1992). Minnesota has long recognized that even if one has no duty to disclose a particular fact, if one chooses to speak, one must say enough to prevent the words from misleading the other party. Id. at 288 (citations omitted). In this case, however, even if the nursing home could be found to have had a duty to disclose the written policy to appellant, the policy has no causal relevance to this case. The nurse who discovered appellant’s wife’s death stated in her affidavit that her decision not to administer CPR to appellant’s wife was not based on the nursing home’s written policy but on the fact that CPR would have been futile. The district court did not err in granting summary judgment to the nursing home on this facet of appellant’s negligent misrepresentation claim.
When the facts are not in dispute, the existence of a contract is solely a question of law to be determined by the court. Estate of Peterson, 579 N.W.2d 488, 490 (Minn. App. 1998) review denied, (Minn. Aug. 18, 1998). We review a trial court’s resolution of legal issues de novo. Id. The district court did not err in concluding that, as a matter of law, appellant has failed to establish a contract pursuant to which the nursing home contracted to perform CPR on his wife after her death.
Appellant claims that the nursing home promised to perform CPR on his wife and that he accepted this offer and gave consideration by admitting her to the nursing home and paying for her care. The undisputed evidence, however, is that all of the conversations about resuscitation occurred after appellant admitted his wife to the nursing home. Also, as stated above, appellant has no evidence that anyone offered or promised to perform CPR on his wife after her death. We reject appellant’s contention that he is entitled to an inference that the statements implied such a promise. The evidence is undisputed that, even if appellant believed that futile CPR would be performed, there was not the requisite meeting of the minds to form an oral contract, therefore, summary judgment is appropriate.
 Appellant has not appealed from dismissal of his claim for negligent nondisclosure but has incorporated the basis of that claim into his negligent misrepresentation claim.
 Appellant’s wife’s care was paid for by third-party providers, but appellant paid for her private room and telephone.
 By definition, resuscitation can only be successfully performed on those who are not actually dead. See Stedman’s Medical Dictionary 1349 (25th ed. 1990) (defining “resuscitation” as “[r]evival from potential or apparent death”) (emphasis added).