This opinion will be unpublished and

may not be cited except as provided by

Minn Stat. § 480A.08, subd. 3 (1996)




Juan A. Martinez,



City of St. Paul,


Filed November 25, 1997


Schumacher, Judge

Ramsey County District Court

File No. C2-96-10765

Juan A. Martinez, 160 East Kellogg Boulevard, Suite 9200, St. Paul, MN 55101 (appellant pro se)

Peg Birk, St. Paul City Attorney, Gail Langfield, Theodore D. Leon, Assistant City Attorneys, 550 City Hall and Courthouse, 15 West Kellogg Boulevard, St. Paul, MN 55102 (for respondent)

Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Amundson, Judge.



Appellant Juan A. Martinez challenges the district court's dismissal of his complaint under Minn. R. Civ. P. 12.02(e) for failure to state a cognizable claim and on respondent's motion for summary judgment. We affirm.


On October 25, 1995, Martinez pleaded guilty to a charge of speeding. In exchange for the plea, the St. Paul City Attorney's Office amended the charge from 46 m.p.h. to 35 m.p.h. in a 30 m.p.h. zone. Subsequently, Martinez complained to respondent City of St. Paul (city) that he suffers from panic disorder and was anticipating a panic attack at the time he negotiated the plea. Martinez requested decertification of the speeding conviction and a refund of the fine. The city denied his request. On April 24, 1996, Martinez attended a city council meeting and again requested decertification of the conviction. City Attorney Timothy Marx was present at the meeting and defended the actions of his office in handling the case.

On October 23, 1996, Martinez filed a complaint against the city, Marx, and several assistant city attorneys alleging the city violated his right to equal protection under the Minnesota Constitution, Marx violated the city charter by defending his employees' conduct before the city council, and the city attorney's office misrepresented the traffic laws. The city moved to dismiss under Minn. R. Civ. P. 12.02(e) and for summary judgment. The district court granted the city's motions and dismissed the complaint.


In reviewing a dismissal under Minn. R. Civ. P. 12.02(e) for failure to state a claim, we consider "whether the complaint sets forth a legally sufficient claim for relief." Elzie v. Commissioner of Pub. Safety, 298 N.W.2d 29, 32 (Minn. 1980) (quoting Royal Realty Co. v. Levin, 244 Minn. 288, 290, 69 N.W.2d 667, 670 (1955)). A claim is legally sufficient if any theory of recovery is available on the claim. Northern States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963).

1. Martinez alleges he is entitled to relief because the City violated his rights under Article 1, section 2 of the Minnesota Constitution. He claims he was deprived of his right to defend himself because the city prosecutors did not recognize he was anticipating a panic attack when he agreed to waive a trial and plead guilty to the speeding ticket. Article 1, section 2 requires equality in the application of the laws. Rocco Altobelli, Inc. v. Department of Commerce, 524 N.W.2d 30, 37 (Minn. App. 1994) (quoting Louisville Gas & Elec. Co. v. Coleman, 277 U.S. 32, 37, 48 S. Ct. 423, 425 (1928)). Martinez cites no authority supporting the existence of the claim he alleges. See Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) ("An assignment of error based on mere assertion and not supported by any argument or authorities in appellant's brief is waived and will not be considered on appeal unless prejudicial error is obvious on mere inspection.") Martinez's claim under the Minnesota Constitution is not cognizable and the district court correctly dismissed it.

2. Martinez argues the district court erred in dismissing his claim under the city charter for failing to state a cognizable claim. Martinez alleges he is entitled to "vindication" under chapter 24 of the city charter because City Attorney Marx defended the actions of the city attorney's office at a city council meeting. Chapter 24, entitled "Code of Ethics," restricts employees from acquiring financial interest in the city, receiving gifts, and lobbying. It contains sanctions for employees who fail to comply with the restrictions. Chapter 24 does not authorize a private cause of action or provide for civil enforcement. Moreover, the conduct Martinez alleges did not violate the provisions of Chapter 24. The district court properly dismissed the claim.

3. Martinez argues the district court erred in granting the city's motion for summary judgment on his claim that the city's attorneys misrepresented the burden of proof for a speeding offense, inducing Martinez to plead guilty. Martinez claims when he appeared in court for his speeding ticket, the prosecutors falsely represented that proof of speed one-mile-per-hour over the speed limit was a violation of the law.

In reviewing an appeal from summary judgment, we consider: (1) whether there are genuine issues of material fact, and (2) whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). We 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 (Minn. 1993).

Martinez's complaint alleged that the city was liable for misrepresentation under Minn. Stat. § 481.07 (1996). Section 481.07 merely provides penalties for attorneys who have committed acts of deceit or collusion and does not create a private cause of action. Love v. Anderson, 240 Minn. 312, 316, 61 N.W.2d 419, 422 (1953). In asserting a claim of attorney fraud, a party must plead and prove an independent theory or a cause of action in tort. See id.

Fraudulent misrepresentation consists of: (1) a false assertion of a material fact; (2) the intent to induce an act in reliance on the false assertion; and (3) actual reliance on the false assertion. M. H. v. Caritas Family Servs., 488 N.W.2d 282, 289 (Minn. 1992). Misrepresentations of law do not give rise to an action for fraudulent misrepresentation. See Gatz v. Langenfeld and Sons Const., 356 N.W.2d 716, 718 (Minn. App. 1984) (citing Northernaire Prods., Inc. v. County of Crow Wing, 309 Minn. 386, 388-89, 244 N.W.2d 279, 281 (1976).

Because the alleged misrepresentation concerned the interpretation of a law, it is not actionable as fraudulent misrepresentation. Gatz, 356 N.W.2d at 718. Moreover, the alleged misrepresentation is an accurate statement of the law. See Minn Stat. § 169.14, subd. 2 (1996) (providing "any speeds" in excess of the speed limit are unlawful); see also Minn. Stat. 169.14, subd. 4 (providing the designated speed is the maximum speed, and speed in excess of the designated speed is unlawful). The city was entitled to judgment as a matter of law on Martinez's fraud claim.

4. Finally, Martinez filed a motion on appeal to amend his complaint to include claims under the Americans with Disabilities Act, the Minnesota Human Rights Act, and the city's human rights ordinance. Martinez cites no authority for asserting new causes of action on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (reviewing court generally must consider only those issues that were presented to and considered by the district court). The motion is denied.