This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-98-214

Mary M. Zehrer,

Appellant,

vs.

Dawn M. Helland, f/k/a Dawn M. Lardy,

Respondent,

Burnet Realty, Inc., et al.,

Respondents.

Filed June 30, 1998

Affirmed

Kalitowski, Judge

Dakota County District Court

File No. C8977022

Robert B. Bauer, Michael G. Dougherty, Severson, Sheldon, Doughtery & Molenda, P.A., 7300 West 147th Street, Suite 600, Apple Valley, MN 55124 (for appellant)

Anne Greenwood Brown, Lawson, Marshall, McDonald & Galowitz, P.A., 3880 Laverne Avenue North, Lake Elmo, MN 55042 (for respondent Dawn M. Helland)

Richard A. Lind, Tamara J. Byram, Lind, Jensen & Sullivan, P.A., 2700 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402 (for respondent Burnet Realty)

Considered and decided by Randall, Presiding Judge, Kalitowski, Judge, and Schumacher, Judge.

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

KALITOWSKI, Judge

Appellant Mary Zehrer challenges the district court's grant of summary judgment in favor of respondents Burnet Realty, Dawn Helland, and Annamarie Lardy. Respondents cross-appeal the denial of attorney fees. We affirm.

D E C I S I O N

This court considers two things on an appeal from summary judgment: (1) whether any genuine issues of material fact exist; 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). "A material fact is one of such a nature as will affect the result or outcome of the case depending on its resolution." Zappa v. Fahey, 310 Minn. 555, 556, 245 N.W.2d 258, 259-60 (1976).

Appellant contends she presented sufficient admissible evidence for each element of her claims of fraudulent misrepresentation and negligent misrepresentation against respondents Burnet Realty (realtor), Dawn Helland (seller), and Annamarie Lardy (agent) in a real estate transaction. We disagree.

Appellant purchased a home from seller and alleges seller fraudulently misrepresented that there had been no major water problems and that any prior problems had been remedied. Seller's disclosure statement reported, "During torrential rains a small amount of seepage can occur. It doesn't always. Extended downspouts & did some minor landscaping." As required by a purchasing agreement contingency, appellant arranged for a subsequent inspection by an independent company. This inspection report stated that occasional seepage was likely but did not report any major problems regarding water damage.

Appellant argues the district court erred in concluding there was no reliance as a matter of law because appellant undertook a separate investigation of the home after the seller provided appellant with a seller's disclosure statement. See Taylor v. Sheehan, 435 N.W.2d 575, 577 (Minn. App. 1989) (holding that buyer of a business may not claim reliance on a statement made by seller regarding the quantity and quality of accounts after having an accountant conduct an independent review of the books), review denied (Minn. Apr. 4, 1989). Appellant argues the inspection was only partial and that seller's representation was at least one of "several inducements with a material influence" on, if not the sole cause of, appellant's decision to purchase the home. See Rother v. Hiniker, 208 Minn. 405, 408, 294 N.W. 644, 646 (1940) (holding that purchaser may have a cause of action for fraud if injured by partial reliance on misrepresentation even if purchaser also relied on partial inspection).

Here, the record indicates appellant conducted walk-throughs with her agents and hired an independent company to inspect the property after seller disclosed past water damage. We conclude appellant's contracted inspection was not partial, and that the district court did not err in concluding it precludes appellant from demonstrating sufficient reliance on seller's statements regarding water damage.

Appellant also argues seller's written remarks in the disclosure statement intentionally or negligently misled appellant to believe the seepage and leakage problem had been remedied and that any further leakage problems would be minimal. Seller contends she was straightforward in calling attention to the issue of water damage and had no intent to mislead, and therefore, there is no showing of fraudulent intent as a matter of law. See M.H. v. Caritas Family Serv., 488 N.W.2d 282, 289 (Minn. 1992) (holding that where adoption agency discloses that child had incest in its background, but did not disclose child was offspring of a brother and sister, the fact that agency raised issue of incest made it unlikely that agency had intent to mislead). We conclude that because seller brought appellant's attention to previous water damage, the district court did not err in finding seller did not intend to mislead appellant. Because appellant failed to show reliance and fraudulent intent as a matter of law, the district court did not err in granting summary judgment to seller.

We also conclude the evidence in the record supports the district court's determination that neither the realtor nor the agent made representations to appellant regarding the water damage to the property. The agent did not complete the seller's disclosure statement, nor did she make any other statements to appellant regarding the property prior to sale. Although appellant relies on the fact that the agent resided in the home in 1991, appellant presented no evidence that the agent was aware of any water damage and fraudulently concealed that information. In addition, appellant fails to prove necessary reliance on any such silence or representation. Thus, we conclude the district court did not err in entering summary judgment for realtor and agent.

Respondents realtor and agent claim they are entitled to attorney fees under Minn. Stat. 549.21[1] (1996) and Minn. R. Civ. P. 11. The standard of review for decisions on attorney fees is whether the district court abused its discretion. Blattner v. Forster, 322 N.W.2d 319, 321 (Minn. 1982). Here, the district court held that appellant did not proceed in bad faith "or for any other purpose that would support an award of fees." Because there is ample evidence in the pleadings, affidavits, and depositions to show that appellant did not proceed in bad faith, we conclude the district court did not abuse its discretion by denying the motion for attorney fees.

Affirmed.

[1] Because Minn. Stat. 549.21 was repealed and replaced by Minn. Stat. 549.211 (Supp. 1997) after the cause of action arose in this case, this court considers whether attorney fees are appropriate under Minn. Stat. 549.21.