This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C6-96-213

Michael L. Kirkpatrick,
Appellant,

vs.

John Hancock Mutual Life Insurance
Company, et al.,
Respondents,

RNM, Inc., d/b/a Martin Financial
Services, Inc., et al.,
Respondents.

Filed September 3, 1996
Affirmed
Foley, Judge

1

Hennepin County District Court
File No. CT-93-004352

Daniel J. Boivin, Meshbesher & Spence, Ltd., 601 Lakeshore Parkway, Suite 1500, Minnetonka, MN 55305; Richard M. Young, 4000 Cumberland Parkway, Building #1700-A, Atlanta, GA 30339 (for Appellant)

Lynn G. Truesdell, Christopher R. Morris, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for Respondents John Hancock, et al.)

Gary G. Gordon, Katherine A. Killen Hall, Fetterly & Gordon, P.C., 808 Nicollet Mall, Suite 800, Minneapolis, MN 55402 (for Respondents RNM, et al.)

Considered and decided by Huspeni, Presiding Judge, Toussaint, Chief Judge, and Foley, Judge.

U N P U B L I S H E D O P I N I O N

FOLEY , Judge
Appellant Michael Kirkpatrick challenges the district court's order granting summary judgment to respondents. Kirkpatrick argues the district court erred by concluding that (1) his claims are barred by the statute of limitations, and (2) he failed to establish the essential elements of his claims for breach of contract, fraud, breach of fiduciary duty, and negligence. Kirkpatrick also claims the district court erred by denying his motion to compel discovery and his motion to amend his complaint to add punitive damages. We affirm.
FACTS

Beginning in 1975 and through the late 1980s, Kirkpatrick purchased various life insurance policies from respondent Rollie Martin. Kirkpatrick and Martin had a professional and social relationship. Martin was a full-time life insurance agent for respondent John Hancock Mutual Life Insurance Company (John Hancock) and was the president and 50 percent shareholder of respondent RNM, Inc. Kirkpatrick operated Halkirk Properties, which developed and managed real estate limited partnerships.
Kirkpatrick's assets were highly leveraged, and he was unable or unwilling to pay premiums for the amount of life insurance he desired. Thus, Kirkpatrick financed premiums through respondent Profesco Corporation, a premium finance subsidiary owned by John Hancock. Kirkpatrick knew and understood the difference among whole life, universal life, and term life insurance policies. He understood that over the short term, term life insurance was less expensive than whole life insurance. Kirkpatrick also knew that the benefit of whole life insurance policies was that the policies had cash values that could be financed through Profesco and could then be borrowed against.
The insurance policies at issue include:
1. Whole life insurance policy number 64379783, issued May 3, 1980, face value of $283,777, financed through Profesco;

2. Whole life insurance policy number 64379784, issued May 3, 1980, face value of $283,770, financed through Profesco;

3. Whole life insurance policy number 64379785, issued May 3, 1980, face value of $283,770, financed through Profesco;

4. Whole life insurance policy number 65092185, issued July 4, 1982, face value of $1,000,000, financed through Profesco;

5. Whole life insurance policy number 65092186, issued July 4, 1982, face value of $1,000,000, financed through Profesco;

6. Whole life insurance policy number 65092187, issued July 4, 1982, face value of $1,215,792, financed through Profesco;

7. Universal life policy number UL 154583, issued July 3, 1986, face value of $3,500,000;

8. Universal life policy number UL 190005, issued March 11, 1988, face value of $925,000.

On May 18, 1988, policies 64379783, 64379784, and 64379785 were surrendered, and the proceeds, after the payment of loans, were applied to policy UL 190005. In 1986, policies 65092185, 65092186, and 65092187 were surrendered, and the proceeds were eventually applied to policy UL 154583 which had been converted and issued July 3, 1986. The whole life insurance policies did not have surrender charges, while the universal life policies had surrender charges that were clearly set forth in each policy.
After discovering that his insurance policies now have minimal cash values, Kirkpatrick commenced this action, claiming that respondents misled him into believing that the constant purchase and turnover of insurance policies was in his best interest when they knew that it was not. Kirkpatrick alleged breach of contract, fraud/misrepresentation, breach of fiduciary duty, and negligence. Kirkpatrick also brought a motion to compel discovery and a motion to amend his complaint to add a claim for punitive damages. The district court granted respondents' summary judgment motion and denied Kirkpatrick's motions. Kirkpatrick appeals.
D E C I S I O N

On appeal from summary judgment, this court must determine whether the district court erred in its application of the law and whether there are any genuine issues of material fact. State by Cooper v. French , 460 N.W.2d 2, 4 (Minn. 1990).
1. Statute of Limitations
Kirkpatrick contends the district court erred by finding that his claims are time barred. Kirkpatrick argues that whether his claims are barred by the statute of limitations is a jury question because there are genuine issues of material fact.
Minnesota law provides that a party must commence a fraud action within six years from the date of "discovery by the aggrieved party of the facts constituting the fraud." Minn. Stat. § 541.05, subd. 1(6) (1994).
[T]he facts constituting the fraud are deemed to have been discovered when, with reasonable diligence they could and ought to have been discovered.

A party's failure actually to discover the fraud will not toll the statute of limitations if such failure of discovery is inconsistent with reasonable diligence. The plaintiff carries the burden of proving that he did not, and could not through the exercise of reasonable diligence, discover the fraud within six years before commencement of the action.

Klehr v. A.O. Smith Corp. , 875 F.Supp. 1342, 1349 (D. Minn. 1995) (citations omitted), aff'd 87 F.3d 231 (8th Cir. 1996). In addition, "[t]he statute of limitations begins to run when the cause of action comes into being 'even though the ultimate damage is unknown or unpredictable.'" Grimm v. O'Connor , 392 N.W.2d 40, 43 (Minn. App. 1986) (quoting Dalton v. Dow Chem. Co. , 280 Minn. 147, 154, 158 N.W.2d 580, 585 (1968)).
Generally, "fraudulent concealment and a plaintiff's due diligence are questions of fact unsuited for summary judgment." Klehr , 875 F.Supp. at 1349 (citation omitted). A district court, however, may properly resolve fact issues as a matter of law where "the evidence leaves no room for a reasonable difference of opinion." Id.
Here, the district court found:
Kirkpatrick knew, or ought to have known, through the exercise of reasonable diligence, of the facts which constitute the alleged fraud or misrepresentation no later than June 23, 1985[.]

In a letter written by Kirkpatrick to Martin dated June 23, 1985, Kirkpatrick stated:
I have just finished a review with my CPA on the projections on one of the recent policy modifications. He has questioned why you selected the type of policy I have and not take advantage of the cheaper term insurance. His question is more along the lines that we discussed in that you advised to use the whole life product vs the term so we could use the interest or cost as a write off. He says that of course this is correct, but that since I have not had a tax problem for the past ten or more years sees no benefit in the higher cost policy even though we can write off some of the cost.

We agree with the district court that the CPA's advice to Kirkpatrick put him on notice that a fraud or misrepresentation claim may exist and that, accordingly, he had an affirmative duty to investigate. See Veldhuizen v. A.O. Smith Corp. , 839 F.Supp. 669, 675-76 (D. Minn. 1993) (as matter of law, statute of limitations for fraud began to run when two doctors advised plaintiffs about source of their problems). Although the extent of any damages may not have been known, the CPA's advice alerted Kirkpatrick that a fraud claim could exist.
Kirkpatrick also argues that the statute of limitations should be tolled because Martin fraudulently concealed the cause of action. "Fraudulent concealment tolls the statute of limitations until the party discovers, or has a reasonable opportunity to discover, the concealed defect." Hydra-Mac, Inc. v. Onan Corp. , 450 N.W.2d 913, 918 (Minn. 1990). Because Kirkpatrick's CPA had raised questions regarding his life insurance policy, Kirkpatrick had a reasonable opportunity to discover any fraud. Thus, we conclude the district court did not err by holding that Kirkpatrick's claims are time barred. We note that Barry v. Barry , 78 F.3d 375 (8th Cir. 1996), relied on by Kirkpatrick, is distinguishable on its facts. In Barry , the respondents gave the appellant false financial figures, and thus a factual question existed as to whether the appellant could have discovered the fraud. Id. at 379.
2. Kirkpatrick's Failure to Establish the Elements of His Claims
Even if Kirkpatrick's claims were not time barred, we also agree with the district court that Kirkpatrick failed to establish the essential elements of his claims.
First, regarding Kirkpatrick's breach of contract claim, he stated in his deposition that
There was no verbal contract that I am going to do this if you are going to do that. There were no written contracts. I am just saying there were verbal discussions. There was not a contract per se that we had.

In addition, Kirkpatrick presented no evidence on what the terms of the alleged implied contract were or how respondents breached any such contract. Thus, we conclude the district court did not err by granting respondents summary judgment on Kirkpatrick's breach of contract claim.
Second, regarding Kirkpatrick's fraud/misrepresentation claims, the district court found that (1) Kirkpatrick failed to allege any specific fraudulent representation regarding the life insurance policies; (2) Kirkpatrick did not produce any evidence that he was charged penalties or surrender charges when he switched his whole life policies, and the undisputed evidence indicated that the whole life policies did not have surrender charges; (3) the universal life policies clearly set out their surrender charges; and (4) Kirkpatrick cannot reasonably assert that he was not aware of the surrender charges.
Kirkpatrick argues that whether respondents made misrepresentations of fact is a jury question. Generally, the jury determines "whether a defendant has misrepresented material facts and whether the misrepresentations proximately caused plaintiff's injury." Barr/Nelson, Inc. v. Tonto's, Inc. , 336 N.W.2d 46, 51 (Minn. 1983).
Respondents, relying on Midland Nat'l Bank v. Perranoski , 299 N.W.2d 404 (Minn. 1980), assert that Kirkpatrick, who is a sophisticated business person, could not have reasonably relied on Martin's representations. In Midland , the third-party plaintiffs contended that the third-party defendant misrepresented that a partner's personal liability for partnership debts was limited to the amount of his capital contribution. Id. at 411. The court held that a jury could not reasonably find that the plaintiffs were justified in relying on oral representations that were contradicted in the partnership agreement. Id. at 412. The court noted that all of the plaintiffs were educated and literate men, that one of them was a successful businessman, that the other two had previous investment experience, and that all of them had ample time to read the partnership agreement before signing it. Id.
Here, the district court found that "it is inconceivable for Kirkpatrick to assert that [respondents], in some way, misrepresented the possibility of finance charges or commission charges, and further that Kirkpatrick reasonably relied on these alleged misrepresentations." The court noted that Kirkpatrick knew that he was financing loans through Profesco to pay for the premiums and that he was incurring an 11½-13 percent interest and/or finance charge on these loans.
We agree with the district court that Kirkpatrick could not have reasonably relied on any alleged misrepresentations by Martin, and thus, the district court did not err by granting respondents summary judgment on Kirkpatrick's fraud claim.
Third, regarding Kirkpatrick's breach of fiduciary duty claim, the district court found that no fiduciary relationship existed between Kirkpatrick and Martin, stating:
With the extensive access Kirkpatrick had to professionals, with Kirkpatrick's sophistication in business matters, and with no "special circumstances" existing which would impose a higher duty on Martin, the Court finds that no fiduciary relationship existed between Kirkpatrick and Martin.

Kirkpatrick contends the district court erred by concluding, as a matter of law, that no fiduciary relationship existed between him and Martin. Kirkpatrick contends that because he and Martin were partners, a fiduciary relationship existed. Respondents, however, claim that this theory of a fiduciary relationship should not be considered on appeal because it was not raised below. See Thiele v. Stich , 425 N.W.2d 580, 582 (Minn. 1988). In addition, as respondents point out, the kind of partnership relationship existing between Kirkpatrick and Martin does not mean that Martin owed fiduciary duties to Kirkpatrick as his insurance agent . See Gabrielson v. Warnemunde , 443 N.W.2d 540, 543 (Minn. 1989) ("An insurance agent's duty is ordinarily limited to the duties *to act in good faith and follow instructions.").
We agree with the district court that no fiduciary relationship existed between Kirkpatrick and Martin. Thus, the district court did not err by granting respondents summary judgment on Kirkpatrick's breach of a fiduciary duty claim.
Fourth, regarding Kirkpatrick's negligence claim, the district court found that the decline in the cash values of Kirkpatrick's life insurance policies was a result of his utilization of the cash values to finance his premiums, rather than any possible negligence on behalf of respondents.
To prevail in a negligence action, a plaintiff must show duty, breach, cause, and damages. Doe v. Brainerd Int'l Raceway, Inc. , 533 N.W.2d 617, 620 (Minn. 1995). Kirkpatrick failed to establish that any damages existed or that any alleged damages were caused by respondents' negligence. Thus, we conclude the district court did not err by granting respondents summary judgment on Kirkpatrick's negligence claim.
3. Denial of Kirkpatrick's Motions
Kirkpatrick argues the district court erred by denying his discovery motions. Kirkpatrick made a motion to compel John Hancock to produce its suitability standards and any documents reflecting litigation or threatened litigation against it.
This court will not reverse a district court's order regarding discovery requests unless the order has no reasonable support. Carlisle v. City of Minneapolis , 437 N.W.2d 712, 716-17 (Minn. App. 1989). The Carlisle court, affirming the trial court's denial of the appellant's discovery request, stated that the appellant had produced no evidence to show that the denial was an abuse of discretion. Id. at 717. Likewise, Kirkpatrick has produced no evidence to show that the district court's denial of his discovery request was an abuse of discretion. Therefore, we conclude the district court did not err by denying Kirkpatrick's motion to compel discovery.
Finally, because the district court granted respondents summary judgment on all of Kirkpatrick's claims, the court denied Kirkpatrick's motion to amend his complaint to allege punitive damages. We agree with the district court that this issue is moot.
Affirmed.


1
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Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.