This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Affirmed in part, reversed in part, and remanded
Mille Lacs County District Court
File No. 48-CV-05-2031
John M. Huberty, Curott & Associates, 116 Second Avenue Southwest, P.O. Box 206, Milaca, MN 56353 (for appellant)
Mark L. Lumley, 17805 57th Street Southeast, Becker, MN 55308 (pro se respondent)
John H. Wenker, Dyan J. Ebert, Quinlivan & Hughes, 400 South First Street, Suite 600, P.O. Box 1008, St. Cloud, MN 56302 (for respondents Michael Droubie, Suzanne Droubie)
Nicole R. Weinand, Reyelts, Leighton, Bateman, Hylden & Sturdevant, 700 Providence Building, 332 West Superior Street #700, Duluth, MN 55802 (for respondents Bogart, Pederson & Associates, Dennis Pederson)
Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Wright, Judge.
In this boundary dispute, appellant challenges the district court’s grant of summary judgment in favor of respondents, arguing that the district court granted relief beyond that sought by appellants and failed to give appellant a meaningful opportunity to oppose summary judgment before resolving certain issues sua sponte. Appellant also argues that the denial of his motion to amend the complaint to add a claim of professional negligence against respondent surveyor was an abuse of discretion. By notice of review, respondent surveyor maintains that the district court lacked subject-matter jurisdiction over appellant’s claims. We affirm in part, reverse in part, and remand.
The boundary dispute at issue here involves two parcels of land. Steven Seeger of Rum River Land Surveyors, Inc. completed a survey of the southern parcel’s northern boundary in 2003. Shortly thereafter, appellant Donald Granlund obtained title to that parcel. Respondent Mark Lumley, who owned the northern parcel at that time, hired respondent Dennis Pederson of respondent Bogart, Pederson & Associates, Inc. (BPA), who also served as the Mille Lacs County surveyor, to survey the southern boundary of the northern parcel. Pederson’s survey placed the boundary between the two parcels farther south from where Seeger’s survey placed it. To determine the boundary, Pederson relied on his determination of the proper location of the east quarter corner of the section, which he established based in part on tree stumps that he identified as the monument tamarack stumps on which a 1910 survey was based. In his capacity as the county surveyor, Pederson certified this location of the east quarter corner as the official government location. At Granlund’s urging, the county hired another surveyor to review the certified location. That surveyor ultimately concluded that Pederson had correctly determined the location of the east quarter corner.
Respondents Michael and Suzanne Droubie purchased Lumley’s property in March 2005. Granlund served a complaint in July on Pederson, BPA, the Droubies, and Lumley, alleging claims of negligent misrepresentation against Pederson and BPA (hereinafter “Pederson respondents”), common-law trespass and an action to determine boundaries under Minn. Stat. § 559.23 (2004) against the Droubies, and statutory and common-law trespass and conversion against Lumley. Granlund later moved to amend the complaint to add Seeger and Rum River Land Surveyors as defendants and to add a claim of professional negligence against the Pederson respondents. While the motion was pending, the Pederson respondents moved for summary judgment on the negligent‑misrepresentation claim and the Droubies moved for summary judgment on the trespass claim and action to determine the boundary.
In an order dated March 24, 2006, the district court denied Granlund leave to amend the complaint and granted the summary‑judgment motions. The district court also entered summary judgment sua sponte in favor of Lumley. The district court determined that there was not a genuine issue of material fact as to the elements of the negligent-misrepresentation claim or the location of the east quarter corner on which the boundary relied. Concluding that Granlund’s allegations did not establish the elements of a negligent-misrepresentation claim or genuine material fact issues for a professional-negligence claim to withstand summary judgment, the district court denied the motion to amend.
Granlund moved for relief under Minn. R. Civ. P. 60.02, which the district court denied. This appeal followed.
D E C I S I O N
Because subject-matter jurisdiction is a threshold requirement for this controversy, we begin by addressing the Pederson respondents’ argument that the district court was without such jurisdiction to hear Granlund’s claims. The Pederson respondents argue that subject-matter jurisdiction is lacking because Granlund is collaterally challenging the county’s decision to record a certificate of location of the east quarter corner, which is a decision subject only to certiorari review by this court. The district court rejected this argument, reasoning that the county’s decision was not a quasi-judicial decision because it was not binding.
Whether subject-matter jurisdiction exists is a question of law, which we review de novo. Shaw v. Bd. of Regents of Univ. of Minn., 594 N.W.2d 187, 190 (Minn. App. 1999), review denied (Minn. July 28, 1999). The Pederson respondents correctly observe that, unless otherwise provided by statute, this court has exclusive jurisdiction over challenges to an administrative agency’s quasi-judicial decisions. See Willis v. County of Sherburne, 555 N.W.2d 277, 281-82 (Minn. 1996) (holding that petition for writ of certiorari to court of appeals is exclusive procedure for challenging administrative agency’s quasi-judicial decisions). But contrary to the Pederson respondents’ argument, Granlund is not challenging the county’s decision to certify the quarter-corner location. Rather, he is challenging the actions of the Pederson respondents that caused the county to reach that decision and the actions of the Droubies and Lumley in response to the county’s certification decision. The district court has subject-matter jurisdiction to adjudicate the claims alleged. See, e.g., Greuling v. Wells Fargo Home Mortgage, Inc., 690 N.W.2d 757, 760 (Minn. App. 2005) (reviewing district court’s grant of summary judgment on negligent-misrepresentation claim); Williamson v. Prasciunas, 661 N.W.2d 645, 649 (Minn. App. 2003) (reviewing district court’s grant of summary judgment on conversion claim); Copeland v. Hubbard Broad., Inc., 526 N.W.2d 402, 404-05 (Minn. App. 1995) (reviewing district court’s grant of summary judgment on trespass claim), review denied (Minn. Mar. 29, 1995). Therefore, the challenge based on lack of subject-matter jurisdiction is without merit.
Granlund contends that the district
court erred by granting summary judgment in favor of respondents. On review of a
district court’s decision to grant summary judgment, we consider whether there
are any genuine issues of material fact and whether the district court erred in
its application of the law. State by Cooper v. French, 460 N.W.2d 2,
On Granlund’s negligent-misrepresentation claim against
the Pederson respondents, the district court held that there was no genuine
issue of material fact regarding the essential elements of the claim. The elements of negligent misrepresentation include
(1) a duty of reasonable care in conveying information; (2) breach
of that duty by negligently giving false
information; (3) reasonable reliance on the misrepresentations, which
proximately caused the injury; and (4) damages. Smith v. Brutger
Cos., 569 N.W.2d 408, 413 (
Although Granlund does not seek reversal of summary
judgment on the negligent-misrepresentation claim, he argues that the district
court improperly considered the breach element because the Pederson respondents
had not challenged that element in their summary-judgment motion. The district court’s thorough analysis of the
elements was correct. Absent a duty, a
breach of that duty cannot be established.
Any procedural error that may exist based on Granlund’s notice argument
was harmless because summary judgment is appropriate when the district court
determines that a genuine issue of material fact is lacking as to any essential element of a claim. Lubbers
We next address Granlund’s challenge to summary judgment in favor of the Droubies in the action to determine the boundary between the parcels under Minn. Stat. § 559.23.
An action may be brought by any person owning land or any interest therein against the owner, or persons interested in adjoining land, to have the boundary lines established; and when the boundary lines of two or more tracts depend upon any common point, line, or landmark, an action may be brought by the owner or any person interested in any of such tracts, against the owners or persons interested in the other tracts, to have all the boundary lines established. The court shall determine any adverse claims in respect to any portion of the land involved which it may be necessary to determine for a complete settlement of the boundary lines . . . .
Granlund maintains that summary judgment on the section
559.23 claim was improperly granted because, without a motion from the Droubies
on that claim, he did not have a meaningful opportunity to oppose summary
judgment by identifying evidence supporting a material fact issue as to the proper
location of the boundary line. But
Granlund misstates the procedural posture of the section 559.23 claim. The Droubies moved for summary judgment based
on lack of subject-matter jurisdiction over the claim. When the district court granted the Droubies’
summary-judgment motion, it did so on a different ground, namely, the absence
of a material fact issue regarding the proper location of the east quarter
corner. Unless an appellant can show
prejudice from procedural irregularities, a lack of notice, or a lack of meaningful
opportunity to oppose summary judgment, the district court’s sua sponte grant
of summary judgment on a different ground from that advanced by the movant will
not be disturbed on appeal. Estate of
Riedel v. Life Care Retirement Cmtys., Inc., 505 N.W.2d 78, 81 (
Granlund had a meaningful opportunity to oppose summary judgment on the section 559.23 claim based on the proper location of the east quarter corner because the Droubies’ summary-judgment motion on Granlund’s common-law trespass claim was founded on this very issue. But rather than identifying evidence that creates a fact issue regarding the boundary line’s proper location, Granlund merely argued that, because the Droubies had failed to produce any evidence in negation of Granlund’s claims, the burden to produce evidence that creates a genuine issue of material fact did not shift to him. We, therefore, reject Granlund’s argument that he did not have a meaningful opportunity to oppose summary judgment on this ground.
Granlund argues, in
the alternative, that there is sufficient evidence to establish a genuine issue
of material fact regarding the proper location of the boundary line, as
determined by the proper location of the east quarter corner. In support of this argument, Granlund relies
on the Seeger survey, which contradicts
the recorded location of the east quarter corner and, consequently, the
boundary line. See,
e.g., Wojahn v. Johnson, 297
N.W.2d 298, 303 (
Granlund’s common-law trespass claims against the Droubies and Lumley and his statutory-trespass and conversion claims against Lumley all turn on the proper location of the boundary line. In light of the controverted factual issue created by the competing surveys’ locations of the east quarter corner, the district court erred by granting summary judgment on these claims.
Granlund also challenges the district court’s denial of his motion to amend the complaint to add a claim of professional negligence against the Pederson respondents. The district court denied the motion because Granlund had not alleged sufficient facts to survive summary judgment on that proposed claim.
A district court has broad discretion
when deciding whether to grant leave to amend a complaint, and its ruling will
not be reversed absent a clear abuse of discretion. Fabio
v. Bellomo, 504 N.W.2d 758, 761 (
Although Minnesota courts have not
succinctly defined the elements of a professional-negligence claim, they
generally have required a showing of a direct or indirect professional
relationship or foreseeable reliance on the professional’s services. Francis v.
N.W.2d 922, 924-25 (Minn. App. 1999) (holding that attorney is liable only to
clients and nonclient third parties when client’s sole purpose in retaining
attorney is to benefit directly nonclient third party), review denied (Minn. Oct. 26, 1999); Waldor Pump & Equip. Co. v. Orr-Schelen-Mayeron & Assocs., Inc.,
386 N.W.2d 375, 377 (
Granlund did not allege in the complaint or in his motion to amend that he had a professional relationship with the Pederson respondents either because he hired them or because Lumley hired them for Granlund’s exclusive benefit. He also did not allege that he relied on the services provided by the Pederson respondents. Granlund also failed to present any evidence of a professional relationship or foreseeable reliance. The district court, therefore, properly denied the motion to amend the complaint because the proposed professional-negligence claim could not survive summary judgment. See Bebo,632 N.W.2d at 740 (holding that district court may deny motion to add new claim if new claim could not survive summary judgment).
For the foregoing reasons, we affirm the district court’s determination that it possessed subject-matter jurisdiction to hear Granlund’s claims. We also affirm the entry of summary judgment on the negligent-misrepresentation claim and the denial of Granlund’s motion to amend the complaint. But we reverse the summary judgment on the action to determine the boundary line and the claims of statutory trespass, common‑law trespass, and conversion; and we remand for further proceedings.
Affirmed in part, reversed in part, and remanded.
 Granlund concedes that a determination that Pederson’s placement of the east quarter corner is correct would defeat Granlund’s negligent-misrepresentation, statutory and common-law trespass, and conversion claims.
There has not been a ruling as to the admissibility of this survey, which may
have a direct bearing on the existence of a genuine issue of material
fact. Kletschka, 417 N.W.2d at 754.
But this is a question
properly left to the district court. Kroning
v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (
 Granlund also relies on his deposition testimony that the stumps on which the recorded location of the east quarter corner is based were not the monumental tamarack stumps. But as an unsupported allegation, this testimony provides an insufficient basis to defeat the Droubies’ summary-judgment motion. See Metge v. Cent. Neighborhood Improvement Ass’n, 649 N.W.2d 488, 495 (Minn. App. 2002) (observing that “[t]he nonmoving party may not rely on . . . unsupported allegations”).
 Because we reverse the district court on this ground, we need not address Granlund’s other arguments for reversal of summary judgment on Granlund’s statutory trespass, common-law trespass, and conversion claims.
 Because we affirm the district court’s denial of Granlund’s motion to amend on this basis, we decline to consider Granlund’s argument regarding the district court’s ruling on the issues of duty, breach of duty, and the absence of expert-opinion evidence to grant summary judgment as it relates to the proposed claim.