This opinion will be unpublished and

may not be cited except as provided by

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






Susan L. Johnston, et al.,





Kenneth C. Hjelmen, et al.,



Mary Ellen Miller,

as Trustee of the Mary Ellen Miller

Revocable Trust Agreement dated March 1999,



Filed January 4, 2005

Affirmed in part, reversed in part, and remanded

Stoneburner, Judge


Freeborn County District Court

File No. C10420


Scott Richardson, Richardson Law Office, 132 Third Avenue Northwest, Austin, MN 55912 (for appellants)


DeAnna J. Schleusner, Ryan & Grinde, Ltd., 407 Fourteenth Street Northwest, Box 6667, Rochester, MN 55903-6667 (for respondents)


            Considered and decided by Klaphake, Presiding Judge, Harten, Judge, and Stoneburner, Judge.


U N P U B L I S H E D  O P I N I O N




Appellants Susan Johnston and Kelly Seberson, purchasers of real estate, challenge the district court’s grant of summary judgment to sellers, respondents Darla and Kenneth Hjelmen, on appellants’ claims of fraudulent misrepresentation and adverse possession.  Because respondents are not necessary parties to appellants’ adverse possession action, we affirm summary judgment dismissing the adverse-possession claim against respondents.  Because there is a genuine issue of material fact concerning the reasonableness of appellants’ reliance on respondents’ representations of the boundaries of the property, and because the remaining elements of fraud were not sufficiently addressed to permit appellate review, we reverse and remand to the district court.



            Respondents advertised “1.3 wooded acres” for sale through a real estate agent.  When appellants viewed the property, respondent Kenneth Hjelmen represented the boundaries of the property as the edges of the mowed yard.[1]  Appellants state that they relied on this representation of boundaries in signing a purchase agreement for the advertised property.  In fact, the boundaries of the parcel are inside of the mowed yard by

24 feet on the north side, 33 feet on the south side and 30 feet on the east side.[2]  The driveway servicing the property is partially outside of the legal boundaries.  Appellants were unable to locate a septic mound and a propane tank where they desired because they discovered that the boundaries were not as represented by respondent.

            Appellants sued respondents for breach of contract and sought a declaratory judgment declaring them, by reason of adverse possession, owners of all of the mowed property that lies outside of the legal boundaries.  The adverse possession claim is asserted against respondents and the record owner of the disputed property.

            Respondents moved for judgment on the pleadings, arguing that appellants failed to state a claim of breach of contract on which relief can be granted because of the statute of frauds and the fact that appellants received the 1.3 acres advertised.  Respondents also argued that they are not proper parties to the adverse possession claim because they do not claim any interest in the land that lies outside of the legal boundaries of the property they sold. 

            In opposition to the motion, appellants submitted an affidavit asserting that they were “seduced” to sign the purchase agreement by respondents’ misrepresentation of the boundaries, and stating that they would not have purchased the property if they had known the actual location of the boundaries.  Appellants also moved to amend their complaint to allege misrepresentation, stating that they signed the purchase agreement in reliance on respondents’ representations regarding the boundaries.  Respondents submitted counter-affidavits and asked the court to treat their motion as one for summary judgment if it did not grant relief on the pleadings.  The district court granted appellants’ motion to amend the complaint, denied respondents’ motion for judgment on the pleadings, but granted summary judgment to respondents.  The district court concluded that because the legal description of the property describing the actual boundaries was of public record available to appellants, appellants, as a matter of law, were not entitled to rely on respondents’ representations of the boundaries.  The district court also concluded that because respondents do not make any claim to the disputed property, they are not proper parties to appellants’ adverse possession claim.[3]  This appeal followed.



            On review of a grant of summary judgment, this court asks two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  A material fact is one that will affect the result or outcome of the case.  Zappa v. Fahey, 245 N.W.2d 258, 259-60 (Minn. 1976).  A reviewing court is not bound by and need not give deference to a district court’s decision on a purely legal issue.  Frost-Benco Elec. Ass’n v. Minnesota Pub. Utils. Comm’n, 358 N.W.2d 639, 642 (Minn. 1984).  Statutory interpretation presents a question of law that this court reviews de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).

I.          Fraudulent inducement claim

A claim for fraudulent or intentional misrepresentation requires a showing of the following elements:

(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)              That fact must be material.

(5)              It must be susceptible of knowledge.

(6)              The representer 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 representer 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.


Nave v. Dovolos, 395 N.W.2d 393, 397 (Minn. App. 1986) (citing Weise v. Red Owl Stores, Inc., 286 Minn. 199, 202-03, 175 N.W.2d 184, 187 (1970)); see also Florenzano v. Olson, 387 N.W.2d 168, 174 n.4 (Minn. 1986) (stating same elements).

The district court did not address respondents’ argument that the parol evidence rule precludes appellants’ misrepresentation claim.  On appeal, respondents recognize the exception to the parol evidence rule when a contract is attacked on grounds of fraud, but argue that the exception only applies to actions for rescission and not to actions for damages based on fraud.  Respondents cite no authority for this argument, which we find to be without merit.  As the cases recognize, “if such [parol] evidence was excluded, a claim of [fraudulent inducement] could seldom be proved.”  Nave, 395 N.W.2d at 396 (involving a suit for damages caused by seller’s fraudulent misrepresentation that subject property had hardwood floors).

            In this case, the district court based summary judgment dismissing appellants’ fraud claim exclusively on its determination that appellants, as a matter of law, were not justified in relying on the representation.  The district court did not address any of the other elements of fraud.  In Minnesota, “reasonableness of a plaintiff’s reliance is ordinarily a question of fact for the jury.”  Sutton v. Viking Oldsmobile Nissan, Inc., 611 N.W.2d 60, 65 (Minn. App. 2000) (vacated on other grounds by Sutton v. Viking Oldsmobile Nissan, Inc., 623 N.W.2d 247 (Minn. Feb 13, 2001)); see also Johnson Bldg. Co. v. River Bluff Dev. Co., 374 N.W.2d 187, 194 (Minn. App. 1985) (stating “[w]hen promise is not in plain contradiction of contract or, if contradictory, when it is accompanied by misrepresentations of other material facts in addition to the contradictory intent, question of reasonable reliance is for trier of fact.”), review denied (Minn. Nov. 18, 1985).  The district court interpreted Corazalla v. Quie, 478 N.W.2d 197 (Minn. 1991) to hold that a real estate purchaser’s claim of fraudulent misrepresentation must fail as a matter of law when “evidence of public record, readily available for inspection by a purchaser of real property . . . clearly disclos[ed] [information contrary to the false misrepresentation].  Id. at 198-99.

            Corazalla involved a claim that a seller fraudulently induced a purchase of a parcel of land by advertising it as including shoreline on a “private” lake when an adjoining shoreline-property owner also had access to the lake.  Id. at 198.  The purchaser alleged that he relied on the representation to mean that the lake was located entirely within the boundaries of the land he purchased.  Id.  The vendor moved for summary judgment asserting evidence that the lake was not entirely within the boundaries of the advertised parcel was clearly visible when Corazalla inspected the property prior to closing, and the legal description, maps, and photographs of public record also clearly showed that the lake was not within the boundaries of the parcel sold.  Id.  The supreme court held that the seller was entitled to summary judgment based on “evidence of public record, readily available for inspection by a purchaser, which clearly discloses the fact that two parcels of land abut the lake.”  The supreme court noted that Corazalla had not disputed the documentary facts or demonstrated “that he may be entitled to relief from his own obligations with regard to the purchase.” 199.

            In this case, however, there is no evidence of visual clues at the property that would have led appellants to question respondents’ description of the mowed area as marking the boundaries of the 1.3 acres advertised.  And there is no evidence that the legal description of the property contained in public records would have alerted anyone that the boundaries were not as represented by respondents.  The facts in this case are more similar to the facts of Hanson v. Stoerzinger, 299 N.W.2d 401 (Minn. 1980) (permitting an action for rescission of a purchase agreement where vendors misrepresented the area of the subject property). In Hanson the supreme court disagreed with the district court’s “suggestion that the use in the purchase agreement of the term ‘legal to govern’ imposed upon the [purchasers] a duty to make certain that the area of the property, as calculated from the legal description, coincided with the [seller’s] representations.”  Id. at 404.  We conclude that Corazalla is distinguishable, and appellants have raised a genuine issue of material fact concerning the reasonableness of their reliance on respondents’ misrepresentations, making summary judgment on the issue of the reasonableness of their reliance inappropriate. 

            Respondents also argue that appellants have not established other essential elements of a claim for fraud, in particular, damages.  “Where the case involves a fraudulent misrepresentation to a buyer of real estate, the measure of damages is the amount paid less the fair market value of the property.”  Peterson v. Johnston, 254 N.W.2d 360, 362 (Minn. 1977).  Appellants concede that there is no evidence in the record at this time establishing that the fair market value of what they received is less than the price they paid, but appellants have asserted that the land is less valuable to them as a result of the misrepresentation.  Because the issue has not been fully briefed in the district court and was not addressed by the district court, we conclude that the record is insufficient to allow us to uphold summary judgment at this stage of the proceedings based on a failure to establish damages.

II.        Adverse possession claim

Appellants argue that the district court’s dismissal of respondents from their adverse possession claim was improper because they need to “tack” respondents’ period of possession to their possession in order to meet the 15-year statute of limitations for adverse possession.  See Minn. Stat.§ 559.01 (2002) (creating cause of action to determine adverse claims to real estate and stating that such an action may be maintained against “another who claims an estate or interest therein.”).  An adverse possessor may “tack” a predecessor-in-interest’s period of adverse possession to meet the statutory minimum period to acquire title by adverse possession (15 years in Minnesota).  See Burns v. Plachecki, 301 Minn. 445, 448, 223 N.W.2d 133, 136 (1974) (all parties to be “tacked” together must have been using property adversely). 

Appellants assert that respondents adversely possessed the disputed land starting in 1973 when they purchased the homestead from the Millers.  Appellants argue that respondents must remain in the lawsuit because without them appellants have no way to acquire the title they claim respondents have to the property.  This argument misperceives the claim.  Adverse possession does not depend on establishing an ownership interest by predecessors-in-interest, rather claimants must establish that the property has been adversely possessed by them and their predecessors-in-interest for at least 15-years. 

The plain language of the statute provides that an adverse-possession action can be maintained only against defendants who claim an interest in the property.  Respondents do not claim an interest in the property.  Appellants have not cited any authority that a predecessor-in-interest is a necessary or proper party to an adverse-possession action. 

We conclude that the district court did not err by granting summary judgment to respondents on appellants’ adverse-possession claim.

Affirmed in part, reversed in part, and remanded.

[1] Respondents deny meeting appellants prior to the signing of the purchase agreement and deny representing the boundaries of the property to appellants, but for purposes of summary judgment these factual disputes are resolved in favor of appellants.

[2] The west side of the property is bounded by a township road.

[3] Appellants’ adverse possession action against the current owners has not been dismissed and respondents’ counterclaim has not been dismissed.  But the district court has directed entry of final judgment on the dismissed claims under Minn. R. Civ. P. 54.02.