This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).







Lynn B. Webster,


Standard Water Control System, Inc.,



Filed January 28, 2003

Forsberg, Judge


Hennepin County District Court

File No. AC0115460



Reuben Mjaanes, Lindquist & Vennum, PLLP, 4200 IDS Center, 80 South Eighth Street, Minneapolis, MN  55402-2205 (for appellant)


Gary Stoneking, Stoneking Law Office, 3605 France Avenue North, Robbinsdale, MN  55422-2337 (for respondent)


            Considered and decided by Stoneburner, Presiding Judge, Wright, Judge, and Forsberg, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellant challenges the district court’s award of damages to respondent for losses incurred as a result of respondent’s reliance on an oral representation made prior to the parties’ contract.  Appellant argues that a party may not rely on an alleged oral representation when the plain and unambiguous language in the written contract specifically contradicts that representation.  We affirm. 


            Respondent Lynn Webster hired appellant Standard Water Control Systems, Inc. (Standard Water) to waterproof his basement.  Standard Water’s sales representative, Leonard McClanahan, conducted an evaluation in Webster’s house.  Webster testified that McClanahan told him that the basement wall adjacent to the garage did not need to be waterproofed because it was an “inside” wall.  Following this representation, Webster signed a contract for installation of a drain-tile system in his basement.   The first page of the contract contained a drawing of the perimeter of Webster’s basement, showing that the drain-tile system would be installed along all the walls of the basement except for that portion of the wall that was adjacent to the garage.  The proposal also contained the following boiler-plate language: “Standard Water Control Systems, Inc. recommends installing system on all exterior walls.”  The cost of the project was $3,000. 

            Following the installation of the drain-tile system, Webster remodeled his basement.  Approximately two months later, water flooded Webster’s basement through the area not waterproofed by Standard Water.  Webster filed a claim in conciliation court against Standard Water for damages in the amount of $7,530.  On September 27, 2001, Webster received the conciliation court judgment in the amount of $2,030.  Standard Water appealed to district court, arguing that Webster’s reliance on an alleged oral representation made by McClanahan was unjustifiable because the language in the written contract signed by Webster directly contradicted it.

The court trial was held on March 18, 2002.  Following the trial, the district court found that Webster reasonably relied on Standard Water’s representations and was entitled to damages in the amount of $2,205.83 for the costs of carpeting, wet-vac, dehumidifier, and correcting the original project.  Without bringing a post-trial motion in district court, Standard Water appealed the decision.


On appeal from a judgment where there has been no motion for new trial, the only questions [for] review are whether the evidence sustains the findings of fact and whether the findings of fact support the conclusions of law and the judgment. 


Citizens for a Safe Grant v. Lone Oak Sportsmen’s Club, Inc., 624 N.W.2d 796, 802 (Minn. App. 2001) (citation omitted).  We will not set aside findings made by the district court unless they are clearly erroneous.  We will give due regard to the opportunity of the district court to judge the credibility of the witnesses.  Minn. R. Civ. P. 52.01.  Standard Water argues that the district court erred in concluding that Webster justifiably relied on an alleged oral representation made by Standard Water’s salesperson prior to the written agreement.  We disagree.

            When an inconsistency between oral representations and the written language in an agreement exists, reliance on an oral representation is unjustifiable as a matter of law only if it is directly contradicted by the language in the written contract.  Johnson Bldg. Co. v. River Bluff Dev. Co., 374 N.W.2d 187, 194 (Minn. App. 1985) (emphasis added), review denied (Minn. Nov. 18, 1985).  Standard Water contends that the boiler-plate language recommending waterproofing all “exterior walls” directly contradicted an alleged oral representation that a portion of Webster’s basement wall did not need to be waterproofed.  This argument is not supported by the evidence. 

            Webster specifically testified that Standard Water’s sales representative advised against waterproofing the portion of the wall in question because it was an “inside” wall.  This testimony remained uncontroverted because the sales representative could not remember the specifics of his conversation with Webster.  Accordingly, the language in the contract that recommended waterproofing all “exterior” walls did not contradict a representation that no waterproofing equipment needed to be installed alongside that portion of Webster’s basement that was described by Standard Water as an “inside” wall.  Because there is no direct contradiction, Webster’s reliance on an oral representation was justifiable as a matter of law.  See Johnson, 374 N.W.2d at 194. 

            When an oral representation is plainly contradicted by the written agreement, the question of reasonable reliance is for the trier of fact.  Veit v. Anderson, 428 N.W.2d 429, 433 (Minn. App. 1988).  A party may reasonably rely on representations made by a person in a course of his or her business, profession, or employment.  See Florenzano v. Olson, 387 N.W.2d 168, 175 (Minn. 1986) (person could reasonably rely on representation made by financial advisor as opposed to same representation made by next-door neighbor).[1]   Moreover, if a party incurs an economic loss as a result of an action based on reasonable reliance on a material misrepresentation, he or she is entitled to recover damages.  Nave v. Dovolos, 395 N.W.2d 393, 397-98 (Minn. App. 1986).  A misrepresentation need not be intentionally made.  See Yost v. Millhouse, 373 N.W.2d 826, 830 (Minn. App. 1985) (knowledge of falsity not required).

            The record in this case supports the district court’s findings that Webster could reasonably rely on Standard Water’s expertise to determine the parameters of the work to be done in order to waterproof his basement.  Standard Water has been engaged in the waterproofing business for more than 24 years and holds itself out as an expert.  Its representatives made visits to customer’s homes to estimate the extent of waterproofing needed to be done in each case.  Webster’s assertion that McCalahan, Standard Water’s representative, advised him that a portion of his basement was an “inside” wall remained uncontroverted.  The only testimony offered by Standard Water on that subject was McCalahan’s statement that he usually recommended installing the waterproofing system across the entire perimeter of the basement unless a customer specifically limited the area.  However, Standard Water presented no evidence that Webster limited the installation in his basement to a specific area. Instead, Standard Water argued that because their sales representatives worked on commission and were interested in selling more drain tile, it made no sense that McClanahan would limit the installation unless Webster had asked him to do so.  This argument is speculative at best.  Moreover, Webster’s testimony that he asked Standard Water to do whatever was needed to waterproof his basement also remained uncontroverted. 

            Based on the record in this case, the district court’s findings were not clearly erroneous.  The evidence supported the district court’s award of damages for the losses Webster incurred as a result of flooding in his basement.




* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.


[1] In Florenzano v. Olson, 387 N.W.2d 168, 170-72 (Minn. 1986), Florenzano lost disability benefits as a result of her insurance agent’s advice to withdraw from participation in a social security program.  The supreme court discussed whether the tort found by a jury to have been committed by an insurance agent against Florenzano was fraudulent misrepresentation or negligent misrepresentation.  Id. at 170.