This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Robert Dickson, et al.,
Les Lundquist, et al., d/b/a Riverview Sports
& Marine, and/or Riverview Sports,
Filed January 25, 2005
Sherburne County District Court
File No. C5-01-2067
Robert V. Espeset, Barry L. Blomquist, Jr., Blomquist & Espeset, 255 Broadway Place East, 3433 Broadway Street N.E., Minneapolis, MN 55413 (for appellants)
William M. Hart, Michael D. Hutchens, Damon L. Highly, Meagher & Geer, P.L.L.P., 33 South Sixth Street, Suite 4200, Minneapolis, MN 55402 (for respondents)
Considered and decided by Shumaker, Presiding Judge; Randall, Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from an order and judgment denying a motion for attorney fees, appellants Robert and Phyllis Dickson argue that they were entitled to attorney fees under the private attorney general statute, Minn. Stat. § 8.31, subd. 3a (2002), because they demonstrated public benefit from their lawsuit. We affirm.
In 1999, appellants Robert and Phyllis Dickson were in the market for a new boat. They attended the 1999 boat show held at the Minneapolis Convention Center, where they visited an exhibit by respondent Riverview Sports & Marine/Riverview Sports, a boat dealership owned by respondents Les and Caryn Lundquist (Riverview). According to Phyllis Dickson, they took Riverview’s brochure, which listed the available inventory. She asserted that the Stratos boat that the Dicksons ultimately purchased was listed in the brochure as a promotional boat, while Les Lundquist indicated he did not know whether it was so listed. At the time the Dicksons left the boat show, they had not yet decided what boat to purchase. None of the parties kept a copy of the brochure.
In February 1999, after shopping at two other boat dealers, the Dicksons went to Riverview. A salesperson showed them the Stratos boat and told them that the boat had been used for promotional purposes. The Dicksons asserted they were given the same brochure that they had received at the boat show. They also asserted they were told that another customer was interested in the boat, that they should purchase it immediately if they were interested, and that the other customer would be offered the same price. The Dicksons purchased the boat for $22,515. At the time of purchase, they were aware that the boat had been used for nine hours, but thought it had been for promotional purposes, such as photo shoots or taking a dignitary fishing.
In August 1999, when the Dicksons had not yet received their warranty cards, they contacted the manufacturers of the boat and engine. They learned for the first time that the boat, motor, and trailer had been previously registered to a North Carolina resident. That meant the boat was not a promotional boat but was simply a “used boat.” The previous owner stated that he had been “dissatisfied with [the boat’s] performance and drivability.” When Stratos was unable to correct these problems to the former owner’s satisfaction, it refunded the full purchase price to him, he returned it, and Riverview then purchased it.
The Dicksons did receive the full warranties they had expected. They have used the boat in fishing tournaments and for recreation and intend to keep it.
In March 2001, the Dicksons brought statutory claims, including consumer fraud, against Riverview. In November 2003, the Dicksons accepted Riverview’s offer of settlement for $2,500 under Minn. R. Civ. P. 68. The Dicksons then moved for nearly $48,000 in attorney fees under the private attorney general statute, Minn. Stat. § 8.31, subd. 3a (2002). The district court denied the motion, and this appeal followed.
D E C I S I O N
Issues of statutory interpretation are reviewed de novo. Ly v. Nystrom, 615 N.W.2d 302, 307 (Minn. 2000). Findings of fact will not be reversed unless clearly erroneous. Reome v. Gottlieb, 361 N.W.2d 75, 77 (Minn. App. 1985), review denied (Minn. July 11, 1985).
The attorney general is authorized to investigate and enforce violations of unfair and unlawful business and commerce practices, including violations under the Minnesota Consumer Fraud Act, Minn. Stat. §§ 325F.68, .69 (2002). Minn. Stat. §§ 8.31, subd. 1, .32, subd. 2(a) (2002). An individual injured by a violation of this law may also bring a private civil action for damages. Minn. Stat. § 8.31, subd. 3a (2002). Attorney fees are available under Minn. Stat. § 8.31, subd. 3a, to those private citizens who can demonstrate public benefit. Ly, 615 N.W.2d at 314.
The Dicksons first argue that because Riverview made an unqualified offer to settle under Minn. R. Civ. P. 68, which they accepted, they prevailed on their statutory consumer protection claims and are entitled to an award of attorney fees under Minn. Stat. § 8.31, subd. 3a. We disagree. The supreme court has held that, in these circumstances, the private citizens must show that their claims benefited the public before they can recover attorney fees under the private attorney general statute. Collins v. Minn. Sch. of Bus., Inc., 655 N.W.2d 320, 329 (Minn. 2003).
The Dicksons next assert that they demonstrated public benefit. In Ly, which involved a fraudulent misrepresentation made in a private sale (the purchase of a restaurant), the supreme court held that the claim would not have been considered to be within the duties and responsibilities of the attorney general to investigate and enjoin, no public benefit had been shown, and the plaintiff was not entitled to attorney fees under section 8.31. Ly, 615 N.W.2d at 314. In another case involving a business school that presented a new program fraudulently to the public, through television advertising and numerous sales and informational presentations, the supreme court held that successful prosecution by the defrauded students did benefit the public, and, thus, the students were entitled to attorney fees under the private attorney-general statute. Collins, 655 N.W.2d at 322, 330.
Objectively, it has to be understood that these cases are fact intensive. The term “public benefit” is subjective. Like the distinction between the terms “ministerial” versus “discretionary” in the municipal immunity area, the term can be about what you want it to be.
The Dicksons challenge the district court’s factual determinations and contend that they showed boat was fraudulently misrepresented to the public at large because the brochure that falsely listed the Stratos boat as promotional rather than used was distributed at the boat show. Phyllis Dickson has filed an affidavit that she received the brochure at the boat show that thousands of other people attended. Les Lundquist did not know whether the brochure listed the boat as promotional. None of the parties kept a copy of the brochure. There was no evidence that this brochure had been given to the one other buyer whom the sales person said was interested in the boat. The district court’s assessment of the Dicksons’ evidence as being “vague” and “questionable” is not clearly erroneous. There is no clear proof of misrepresentation toward the public at large.
The Dicksons now contend that the district court’s ruling could open a loophole because “a dealer could simply fraudulently sell one product at a time, in serial fashion, and never be required to pay attorney’s fees since there would be no ‘public benefit.’” Our practical problem with the argument is that we do not give “advisory opinions.” That hypothetical set of facts, which could possibly materialize in the future, is not our set of facts. As the district court determined, the alleged misrepresentation leading to the purchase of the boat occurred in a one-on-one negotiation between the salesman and the Dicksons, as in Ly, 615 N.W.2d at 314. Finally, the Dicksons did not prove that the brochure, by itself, misled them into buying the boat. The brochure caused them to become generally interested in the defendant boat shop. After they visited Riverview and did their shopping, they purchased the boat in question.
The Dicksons contend that their lawsuit produced public benefit because Riverview’s misrepresentations extended to the bank that financed their boat purchase, to the Department of Motor Vehicles, and to a North Carolina bank, as well as to another unnamed customer who had also been interested in the boat. We still cannot find the requisite showing of fraudulent inducement or public benefit under Ly and Collins.
The Dicksons were successful in negotiation a monetary settlement with defendant. But the district court findings denying attorney fees are not clearly erroneous and represent a proper interpretation of the law under Minn. Stat. § 8.31, subd. 3a.
 The supreme court recently discussed at length the distinction between ministerial acts and discretionary acts for purposes of common law official immunity, with further analysis by the dissent. Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678 N.W.2d 651 (Minn. 2004).