This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Daniel Simon,


The Department of Transportation
of the State of Minnesota,

Filed August 24, 1999
Toussaint, Chief Judge

Ramsey County District Court
File No. C1985951

Lee R. Johnson, Johnson & Greenberg, P.L.L.P., Interchange Tower, Suite 1525, 600 South Highway 169, St. Louis Park, MN 55426 (for appellant)

Mike Hatch, Attorney General, Francis C. Ling, Assistant Attorney General, 1100 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2128 (for respondent)

Considered and decided by Anderson, Presiding Judge, Toussaint, Chief Judge and Randall, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Daniel Simon was employed as a senior highway technician in the St. Paul office of respondent Minnesota Department of Transportation (MnDOT). In late 1994, Simon sought to have his St. Paul position reallocated to engineering specialist.[1] In 1995, while on a temporary work assignment in the Brainerd area, Simon applied for and received a senior highway technician position in the Brainerd MnDOT office. Eighteen months later, Simon learned that his former St. Paul position had been reallocated to engineering specialist.

Simon brought suit against MnDOT, claiming promissory estoppel, common law fraud, and negligent misrepresentation, and alleging that his employer induced him to leave his St. Paul position so that it could award an upgraded position to another employee. Because the district court did not err in dismissing Simon's complaint, we affirm.


In dismissing Simon's complaint, the district court determined that Simon's collective bargaining agreement was his exclusive remedy for his claims against his employer. We do not address that determination but rather address Simon's claims of promissory estoppel and fraud and misrepresentation on their merits. See Watson v. United Servs. Auto. Ass'n, 566 N.W.2d 683, 687 (Minn. 1997) (appellate court may base its decision on question not decided by trial court if question is plainly decisive of controversy and there is no advantage or disadvantage to either party). These issues were presented to the district court.

In reviewing cases that were dismissed for failure to state a claim on which relief can be granted, the only question before the reviewing court is "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)).

I. Promissory Estoppel

In his amended complaint, Simon alleges that he relied, to his detriment, on certain statements made by his MnDOT supervisor, Steve Hurvitz. The statements, made to Simon while he was considering applying for the Brainerd position, were: (1) that there would be no engineering specialist position for Simon if he returned to the St. Paul office; (2) that there were no plans to upgrade the St. Paul position; (3) that if the St. Paul position was upgraded, the position would be posted (and Simon could then apply); and (4) that Simon would have a better chance of obtaining an engineering specialist position if he took the Brainerd position.

Promissory estoppel applies only where there is no existing contract. Banbury v. Omnitrition Int'l, Inc., 533 N.W.2d 876, 881 (Minn. App. 1995); see also Deli v. University of Minn., 578 N.W.2d 779, 781 (Minn. App. 1998) (promissory estoppel implies a contract in law where none exists in fact), review denied (Minn. July 16, 1998). Here there was a contract, a collective bargaining agreement between AFSCME and the state, that governed the procedures by which positions are filled and reallocated. Thus, there could be no agreement or quasi-contract between Hurvitz and Simon regarding the reallocation of Simon's position.

Simon interprets Hurvitz's statements to be a promise that, if there was going to be an engineering specialist position in the St. Paul office, it would go to him. This, however, is not a promise that Hurvitz or MnDOT can make. Under the collective bargaining agreement, any employee (including the person hired as Simon's replacement in the St. Paul office) can request a position reallocation. And it is the Department of Employee Relations, not MnDOT or Hurvitz, that decides whether a position will be reallocated. Assuming Hurvitz's statements to be true, they conflict with the collective bargaining agreement and are therefore void. See Whipple v. Independent Sch. Dist. No. 621, 424 N.W.2d 559, 564 (Minn. App. 1988) ("individual employment contracts that conflict with collective bargaining agreement are void") (citation omitted). Simon's promissory estoppel claim fails as a matter of law.

II. Fraud and Misrepresentation

In his amended complaint, Simon alleges that Hurvitz's statements about reallocation were fraudulent and intended to induce him to leave his St. Paul position. Simon further alleges that, as a result of these misrepresentations, he incurred damages in excess of $50,000. Simon describes these damages as the loss of the higher salary and retirement benefits paid to an engineering specialist.

Persons claiming misrepresentation must show that they were damaged and that their losses were proximately caused by the misrepresentations. Davis v. Re-Trac Mfg. Corp., 276 Minn. 116, 117, 149 N.W.2d 37, 39 (1967); see also Faimon v. Winona State Univ., 540 N.W.2d 879, 885 (Minn. App. 1995) (willful and negligent misrepresentation both require showing that misrepresentation caused injury), review denied (Minn. Feb. 9, 1996). Damages that are merely speculative cannot be recovered. Jackson v. Reiling, 311 Minn. 562, 563, 249 N.W.2d 896, 897 (1977).

Here, Simon's fraud and misrepresentation claims fail because he can show no damages. Simon did not lose his St. Paul position; rather he was offered and chose to accept another position in the Brainerd office. Nor was he demoted. Simon left a senior highway technician position in the St. Paul office for the same position in Brainerd. Indeed, Simon can only claim that if he had returned to St. Paul and if he had sought reallocation of the St. Paul position and if his supervisor had supported Simon's request for reallocation and if MnDOT had also supported the reallocation request and if the Department of Employee Relations had approved the reallocation, he would earn approximately $4.00 more an hour than he does now. These speculative damages do not support a claim for fraud and misrepresentation. Simon's fraud and misrepresentation claims fail as a matter of law.


[1] A position can be reallocated if the duties and responsibilities of the position have changed significantly over a period of time. Minn. Stat. § 43A.02, subd. 35 (1998). In this instance, the reallocation would mean a promotion to a higher classification.