This opinion will be unpublished and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
Linda Nance, et al.,
Daniel Evje, et al.,
Mike Atkins, et al.,
Nathan Richter, et al.,
Filed September 4, 2007
Clearwater County District Court
File No. C4-06-106
Richard I. Diamond, Richard I.
James W. Haskell, Haskell Law Firm, PLLC, Bemidji Professional Building, 205 Seventh Street Northwest, Suite 2, Bemidji, Minnesota 56601 (for respondents Evje, et al.)
David J. McGee, Ryan J. Wood, Thompsen & Nybeck, P.A., 3300 Edinborough Way, Suite 600, Edina, Minnesota 55435-5962 (for respondents Atkins, et al.)
Sonia M. Sturdevant, Richard J.
Leighton, Reyelts Leighton Bateman Hylden & Sturdevant, Ltd.,
Raymond J. German, Raymond J.
German, Ltd., Box 528,
Considered and decided by Hudson, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
appeal from a grant of summary judgment, this court reviews the record to
determine whether there are any genuine issues of material fact and whether the
district court erred in its application of the law. Zimmer
v. Carlton County Co-op Power Ass’n, 483 N.W.2d 511, 513 (Minn. App. 1992),
review denied (Minn. Jun. 10,
1992). “[T]he reviewing court must view
the evidence in the light most favorable to the party against whom judgment was
granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (
moving party is entitled to summary judgment “when there are no facts in the
record giving rise to a genuine issue for trial as to the existence of an
essential element of the nonmoving party’s case.” DLH,
Inc. v. Russ, 566 N.W.2d 60, 71 (
As a preliminary matter, we note that while rule 52.01 of the Minnesota Rules of Civil Procedure does not require findings of fact in summary-judgment matters, and while appellate courts review de novo the district court’s application of the law, meaningful appellate review of summary-judgment proceedings is enhanced when a district court states the basis for the summary judgment, particularly in litigation that involves multiple claims. Here, however, the district court issued a one-page order. And, as appellants’ counsel noted at oral argument, the lack of analysis made it impossible for appellants to determine the basis of the district court’s decision, thus undermining the parties’ confidence in the decision-making process and impeding appeal. For these reasons, we encourage district courts to articulate their reasoning and analysis when ruling on motions for summary judgment.
Appellants first argue that a
genuine issue of material fact exists as to whether respondents Evjes, Atkins,
and Richter provided them with a complete seller’s disclosure.
Appellants argue that the Evjes failed to provide them with the second page of the disclosure form. But the record contains the second page—albeit on different letterhead than the first—which the Evjes signed. Appellants have failed to present any evidence tending to prove that the substituted second page withheld information that the original disclosed; nor have they presented evidence that the disclosure form they received was deficient. On this record, appellants have not shown that there is a genuine issue of material fact regarding whether a complete seller’s disclosure was provided.
Appellants argue that a genuine
issue of material fact exists as to whether respondents Evje, Atkins, and
Richter made fraudulent or negligent misrepresentations. A person makes a misrepresentation when they
make an affirmative false statement or omit certain facts “that render the
facts that are disclosed misleading.” Dakota Bank v. Eiesland, 645 N.W.2d 177,
183–84 n.4 (Minn. App. 2002). To be
actionable, the misrepresentation must have been made fraudulently or
elements of fraudulent misrepresentation are (1) a representation; (2) that is
false; (3) that pertains to a past or present fact; (4) that is material; (5)
that is susceptible of knowledge; (6) which the representer knew was false or
asserted as his or her own knowledge without knowing whether it was true or
false; (7) which the representer made with the intent to induce another to act
or be justified to act upon it; (8) which did induce or justify another to act;
(9) the person acted in reliance upon the representation; (10) the person
suffered damage; and (11) the representation was the proximate cause of the
damage. Benson v. Rostad, 384 N.W.2d 190, 194 (
Appellants argue that the fact that their home experienced mold, water intrusion, and rodent infestation is sufficient evidence to prove that respondents Evjes, Atkins, and Richter made fraudulent misrepresentations. But appellants have failed to produce evidence that respondents Evje and Atkins knew that they were making false statements when they disclosed that the home had not experienced mold, water intrusion, or rodent infestation; there is nothing in the record showing that the Evjes ever experienced similar issues. Furthermore, appellants have failed to produce any evidence demonstrating that Richter made any representation pertaining to the home’s condition. And because Richter was not the sellers’ agent, he had no control over the representations made by the Evjes on their disclosure form. On this record, appellants have not shown that there are genuine issues of material fact regarding fraudulent misrepresentation.
The tort of negligent misrepresentation is defined as follows:
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 is limited to situations where one party is providing
guidance to another; there is no cause of action when the parties are engaging
in an arms-length commercial transaction.
However, appellants may assert this cause of action against Richter. As appellants’ real-estate agent, he offered guidance on the transaction—an essential element of a negligent-misrepresentation claim. But appellants have failed to produce any evidence tending to prove that Richter was untruthful or that his conduct did not comport with an objective standard of reasonable care. Indeed, it was Richter who, upon seeing the disclosure statement from the Evjes, noticed that a page was missing and arranged for the Evjes to complete and sign a second disclosure statement. Moreover, he made closing contingent upon appellants’ receipt of the statement. On this record, appellants have not shown the existence of a genuine issue of material fact regarding negligent misrepresentation.
argue that a genuine issue of material fact exists as to whether respondents
Evjes, Atkins, and Richter breached a fiduciary duty. A fiduciary is defined as “[o]ne who owes to another
the duties of good faith, trust, confidence, and candor.” Black’s
Law Dictionary 640 (7th ed. 1999).
“A fiduciary relationship exists when confidence is reposed on one side
and there is resulting superiority and influence on the other[.] Disparity of business experience and invited
confidence could be a legally sufficient basis for finding a fiduciary
relationship.” Toombs v. Daniels, 361 N.W.2d 801, 809 (
on the law, we conclude that while the Evjes and Atkins cannot be characterized
as appellants’ fiduciaries, Richter’s relationship to appellants falls within
that definition. Appellants assert that
Richter breached his fiduciary duty when he failed to warn them about the water-intrusion
risk associated with a home built on a downward slope. But the mere fact that a house is built on a
slope does not make it defective. In
addition, appellants have failed to cite any authority supporting the
proposition that an individual breaches a fiduciary duty by failing to warn
another about a patently obvious risk. Generally,
assignments of error based on mere assertion and not supported by argument or
authority are waived unless prejudice is obvious. State
v. Modern Recycling, Inc., 558 N.W.2d 770, 772 (
argue that a genuine issue of material fact exists as to whether respondents
Evje, Atkins, Richter, and
existence of a legal duty is a legal question which this court reviews de
if we were to conclude that
Appellants argue that a genuine issue of material fact exists as to whether respondents Evjes, Atkins, and Richter violated the Consumer Fraud and Deceptive Trade Practices Acts, which governs
The act, use, or employment by any person of any fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with intent that others rely thereon in connection with the sale of any merchandise, whether or not any person has in fact been misled, deceived, or damaged thereby.
Minn. Stat. § 325F.69, subd. 1 (2006). The term “merchandise” includes real estate. Minn. Stat. § 325F.68, subd. 2 (2006). An individual engages in deceptive trade practices when, “in the course of business, vocation, or occupation” the person “engages in any . . . conduct which creates a likelihood of confusion or of misunderstanding.” Minn. Stat. § 325D.44, subd. 1(13) (2006).
This argument is essentially a recasting of appellants’ fraudulent-misrepresentation argument and suffers from the same evidentiary deficiencies. Therefore, our analysis of that issue applies here.
Appellants’ final argument challenges the district court’s refusal to permit them to rescind the purchase agreement. “A contract is voidable if a party’s assent is induced by a fraudulent misrepresentation on which the party is justified in relying.” MCC Invs. v. Crystal Props., 415 N.W.2d 908, 911 (Minn. App. 1987), review denied (Minn. Feb. 12, 1988). Because appellants have failed to produce any evidence of fraudulent inducement, the district court did not err in granting summary judgment.