This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Marilyn M. Michel, petitioner,
Filed April 25, 2006
Dakota County District Court
File No. C9-05-6430
Alex W. Russell,
R. Daniel Rasmus, Michael W. Plambeck, Christensen, Laue & Rasmus, P.A., 5101 Vernon Avenue South, Suite 400, Minneapolis, MN 55436 (for respondent)
Considered and decided by Lansing, Presiding Judge; Shumaker, Judge; and Halbrooks, Judge.
Appellant challenges the Minn. R. Civ. P. 12.02(e) dismissal of her complaint, which presents a series of claims based on alleged promises made by respondent. Because appellant has failed to state a claim on which relief may be granted, we affirm.
Respondent Patricia Vogelpohl and her husband owned an apartment building, of which respondent became the sole owner when her husband died in 1999. Appellant Marilyn Michel lived in the building and worked as the rental manager for 13 years. As a result, she had reduced rent and received $400 per month. In February 2004, respondent sold the building. Appellant sued respondent, claiming that respondent at various times orally promised appellant that she would be taken care of financially, that respondent would never sell the apartment building, that appellant would receive a one-third interest in the building and have an apartment to live in forever, and that respondent would buy appellant a townhouse. Appellant’s action was brought on a variety of theories, including contract, the consumer-fraud act, equitable estoppel, promissory estoppel, unjust enrichment, constructive trust, misrepresentation, and negligence or negligent misrepresentation. The district court determined that appellant failed to state a claim on which relief could be granted and dismissed all of her claims. This appeal follows.
In reviewing cases involving
dismissal for failure to state a claim under Minn. R. Civ. P. 12.02(e), appellate
courts consider “whether the complaint sets forth a legally sufficient claim
A. Contract claims
district court dismissed appellant’s contract claims on the ground that they
are barred by the statute of frauds.
alleges that respondent promised to “take care of her” financially. That purported promise is vague and does not
constitute an employment contract, and the district court did not err in its
determination that this claim falls within the statute of frauds because it
cannot be performed within one year. See,
e.g., Bussard v. College of St. Thomas, Inc., 294
Appellant also contends that respondent promised to never sell the apartment building, to give appellant a one-third interest in the building, and to provide her with an apartment to live in forever. Because each of these purported promises involves an interest in real property and because appellant fails to allege the existence of a writing documenting the promises, the district court properly dismissed the claims as unenforceable under the statute of frauds.
complaint also alleges that respondent promised to buy a townhouse for her. The district court dismissed this claim on
the basis that it involves an interest in land and is therefore unenforceable
under the statute of frauds without a writing.
Appellant argues that the promise does not involve an interest in land,
but rather constitutes a promise to transfer “money in an amount to afford a
townhome in exchange for services” and that the statute of frauds does not
apply to such a transfer of money. We are
not persuaded by this creative rephrasing.
The Minnesota Supreme Court has specifically held that “a contract to
purchase land or an interest therein which is not evidenced by a writing is
within the evil which the statute opposes and subject to its operation,
although not strictly within the letter of the act.” Alamoe Realty Co. v. Mut. Trust Life Ins.
Appellant contends that dismissal was premature because of the possibility that exceptions to the statute of frauds may apply and because of part performance of the contract. Appellant first argues that it is unnecessary for a complaint to anticipate and address defenses that might be raised. Appellant cites no authority for this proposition, and we conclude that appellant should have anticipated and addressed the statute-of-frauds defense in her complaint.
general rule is that a complaint is sufficient if it “shows a prima facie right
in the plaintiff to recover, and it is not necessary that it should negative a
possible defense, or state matter which would come more properly from the other
side.” Jones v. Ewing, 22
Because it is clear and unequivocal from appellant’s complaint that the statute of frauds bars enforcement of the alleged contracts and because appellant does not allege facts sufficient to take her claims out of the statute of frauds, the district court properly dismissed appellant’s contract claims.
But appellant further contends there are equitable considerations present in this case that amount to part performance and thereby remove the contract from the requirements of the statute. Appellant contends that her complaint alleged part performance because it included allegations that appellant paid for items for and made improvements to the apartment building.
cites Ehmke v. Hill, 236
appellant has not made any allegations involving the unequivocal-reference
theory. Second, because appellant seeks
“damages for breach of contract, the doctrine of part performance, which may
aid a suit for specific performance, is of no help” here. Hatlestad v. Mut. Trust Life Ins. Co.,
[t]aking possession of land (of itself usually not enough) pursuant to an oral agreement for its conveyance ordinarily is an important element of the part performance which takes a case out of the statute. But such possession must of itself indicate the beginning of a new interest, and be shown to be pursuant to the oral contract. There must be no equivocation or uncertainty in the case. If the possession can naturally and reasonably be accounted for otherwise than by a contract for the purchase of the land, it will not avail.
B. Consumer Fraud Act claim
Appellant alleges that respondent violated the Minnesota Consumer Fraud Act, which provides for the enjoinment of “[t]he act, use, or employment by any person of any fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with the intent that others rely thereon in connection with the sale of any merchandise.” Minn. Stat. § 325F.69, subd. 1 (2004). The district court dismissed the claim because a sale is a requisite element of a claim under the act and because appellant failed to allege that a sale took place.
Appellant concedes that she was totally uninvolved in the transaction by which the apartment building was sold. Her argument that the sale at issue here somehow involved respondent’s promises and appellant’s labor in consideration therefore is unpersuasive. Because appellant has failed to state a claim under the Minnesota Consumer Fraud Act, the district court did not err in dismissing this claim.
C. Estoppel claims
“Promissory estoppel implies a contract in law where no
contract exists in fact.” Deli v.
Univ. of Minn., 578 N.W.2d 779, 781 (Minn. App. 1998), review denied
(Minn. July 16, 1998). The elements of a
promissory estoppel claim are (1) a clear and definite promise, (2) intended to
induce reliance and the promisee relied to his or her detriment, and (3) the
promise must be enforced to prevent injustice. Cohen v. Cowles Media Co., 479 N.W.2d
387, 391 (
Because the alleged promises here were not definitive and because they do not support the existence of an employment contract, we conclude that appellant has failed to state a claim for promissory estoppel.
estoppel prevents a party from “taking unconscionable advantage of [its] own
wrong by asserting [its] strict legal rights.” Brekke v. THM Biomedical, Inc., 683
N.W.2d 771, 777 (
The district court dismissed appellant’s equitable-estoppel claim partly because appellant failed to allege facts indicating a misrepresentation of material fact. Additionally, the court noted that the complaint contained “no allegations of any ‘unconscionable’ conduct by [respondent].” We conclude that the dismissal of appellant’s equitable-estoppel claim is appropriate because there is no allegation that respondent made a misrepresentation regarding a material fact.
D. Constructive trust and unjust enrichment claims
A constructive trust is an
equitable remedy that “may be imposed when there is clear and convincing
evidence that the trust is necessary to avoid unjust enrichment.” Spiess v. Schumm, 448 N.W.2d 106, 108
While appellant asserts claims for constructive trust and unjust enrichment, she fails to allege that respondent received something to which she was not already entitled. Accordingly, dismissal of the claims for constructive trust and unjust enrichment is appropriate.
E. Fraudulent-misrepresentation claim
Fraud must be pleaded with particularity.
(1) there was a false representation by a party of a past or existing material fact susceptible of knowledge; (2) made with knowledge of the falsity of the representation or made as of the party’s own knowledge without knowing whether it was true or false; (3) with the intention to induce another to act in reliance thereon; (4) that the representation caused the other party to act in reliance thereon; and (5) that the party suffer pecuniary damage as a result of the reliance.
Flynn v. Am. Home Prods.
N.W.2d 342, 349 (
Here, the district court characterized appellant’s misrepresentation claim as a claim for fraudulent misrepresentation and dismissed it because appellant failed to “specify with particularity which statements were false and fraudulent at the time they were made.” Appellant has not objected to the court’s characterization of the misrepresentation claim as a fraudulent-misrepresentation claim, and we note that such a characterization seems appropriate, given appellant’s separate negligent-misrepresentation claim. Because appellant has not alleged fraudulent misrepresentation with the particularity required under rule 9.02, appellant has not stated a claim on which relief may be granted. Dismissal on that basis is therefore appropriate.
F. Negligence and negligent-misrepresentation claims
One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
Hebrink v. Farm Bureau Life
Ins. Co., 664
N.W.2d 414, 420 (
misrepresentation, “whether negligent or fraudulent, constitutes fraud under
Here, appellant’s complaint baldly alleges that respondent’s actions and representations constitute negligent misrepresentation, without specifying which acts and representations constitute such misrepresentation. Because appellant has not alleged negligent misrepresentation with sufficient particularity, she has not stated a claim on which relief may be granted. Dismissal is therefore appropriate.
district court dismissed appellant’s negligence claim, in part because a
contract claim cannot be converted to a tort claim absent an independent
tort. To prove negligence, a plaintiff
must show (1) a duty of care existed; (2) that duty was breached; (3) an injury
was sustained; and (4) breach of the duty proximately caused the injury. Lubbers
court has previously held that a contract claim cannot be converted to a tort
claim in the absence of an independent tort.
Hanks v. Hubbard Broadcasting,
Inc., 493 N.W.2d 302, 307 (