This opinion will be unpublished and

may not be cited except as provided by

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




Hamline Park Plaza Partnership, et al.,



Northern States Power Company,


Filed November 24, 1998


Holtan, Judge[*]

Hennepin County District Court

File No. 954816

Harvey H. Eckart, Reinhart and Anderson, E-1000 First National Bank Building, 332 Minnesota Street, St. Paul, MN 55101 (for appellants)

Robert R. Reinhart, Jean F. Holloway, Julie Meany, Dorsey & Whitney LLP, Pillsbury Center South, 220 South Sixth Street, Minneapolis, MN 55402-1498; and

James L. Altman, Northern States Power Company, 414 Nicollet Mall, Minneapolis, MN 55401 (for respondent)

Considered and decided by Toussaint, Chief Judge, Anderson, Judge, and Holtan, Judge.



Appellants, commercial consumers of power sold by respondent power company, challenge the summary judgment granted on their claims of consumer fraud, fraud, and negligent misrepresentation. Because we see no genuine issue of material fact and no error of law, we affirm.


As part of a state-mandated energy conservation Lighting Efficiency Program (LEP), respondent Northern States Power Company (NSP) encouraged its commercial customers, among them appellants Hamline Park Plaza Partnership and The Family Tree, to install energy-efficient lighting. NSP offered a rebate and optional financing on the installation of energy-efficient equipment and gave customers an estimate of the amount of electricity they would save. Customers selected their own equipment, vendors, and installation services.

Appellants accepted NSP's offer and installed new equipment. Their LEP application form stated, "[e]nergy savings calculations are estimates and may vary from actual results." Appellants have saved on their electricity costs: their savings, together with the rebates, have more than covered the cost of their new equipment.

However, their savings have been less than NSP estimated. NSP based its calculations on nationally recognized wattage values provided by the American National Standards Institute (ANSI), at that time the only standardized, uniformly acceptable way of measuring wattage. ANSI tests are conducted in open-air, benchtop situations at room temperature. NSP later replaced the ANSI standards with new, thermally adjusted values, but these values had not been standardized at the time appellants' energy savings were estimated.

Appellants sued NSP, alleging consumer fraud, fraud, and negligent misrepresentation.[1] Following discovery, NSP moved for summary judgment, which was granted on all three claims. The district court found no genuine issue of material fact as to whether ANSI wattages provided a basis for estimating energy savings and concluded that appellants showed no damages and that NSP did not violate a duty to disclose.


Standard of Review

On appeal from summary judgment, this court must determine whether there are genuine issues of material fact and whether the district court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). Appellants argue that the district court failed to recognize one genuine issue of material fact and made two errors in its application of the law.

1. NSP's Use of ANSI Standards

The district court found that:

NSP sales representatives calculated rebates by estimating energy savings based upon information provided by the vendor or customer and standards developed by the American National Standards Institute (ANSI). The ANSI standards estimate energy efficiencies associated with various lamps and ballasts and allow for wattage comparisons between old and new lamps and ballasts * * *.

Appellants argue that whether the ANSI standards can be used to calculate energy savings is a genuine issue of material fact. However, it is undisputed that NSP did use them to estimate customers' savings until 1994; therefore, the court's finding is supported by the record. If appellants are actually arguing that there is a genuine issue of material fact as to whether the ANSI standards should have been used, that issue is resolved by evidence in the record showing that, at the time appellants' potential savings were estimated, there were no accepted standards other than the ANSI standards. No genuine issue of material fact precludes this summary judgment.

2. Failure to Show Damages

The district court concluded that appellants failed to prove damages, an essential element of their common-law fraud and negligent misrepresentation claims. See Davis v. Re-Trac Mfg. Corp., 276 Minn. 116, 117, 149 N.W.2d 37, 39 (1967) (listing reliance on a misrepresentation, suffering of damages, and having damages attributable to the misrepresentation as last three elements of fraudulent misrepresentation); Bonhiver v. Graff, 311 Minn. 111, 122, 248 N.W.2d 291, 298 (1976) (stating that one who supplies false information for guidance of others in business transactions is liable for any pecuniary loss caused by their justifiable reliance on the information); Florenzano v. Olson, 387 N.W.2d 168, 174 (Minn. 1986) (same).

Appellants did not show any out-of-pocket loss.[2] They argue that their "loss" was the "benefit of the bargain," i.e. the amount they expected to save less the amount they did save. To support this use of contract damages for tort claims, they rely on B.F. Goodrich Co. v. Mesabi Tire Co., 430 N.W.2d 180, 183 (Minn. 1988) (awarding consequential economic loss damages to a manufacturer who, in reliance on a supplier's misrepresentation that it would continue to supply, did not seek an alternative source of supply and lost its business as a result). B.F. Goodrich is distinguishable on the facts: NSP did not misrepresent any intention to appellants and there was no misrepresentation for appellants to rely on. Moreover, B.F. Goodrich limits the application of the consequential economic loss exception:

[T]he rule [limiting damages for fraudulent misrepresentation to out-of-pocket loss] works well where the plaintiff has received property in reliance on the misrepresentation, as in sales of goods or real estate, and the property received serves as the reference point for measuring the damages. The rule works less well where, as in this case, defendant's misrepresentation prevents plaintiff from taking measures to protect the value of property it already has.

Id. Appellants received property on NSP's alleged misrepresentation; they were not prevented by NSP from taking measures to protect the value of their property. Because B.F. Goodrich does not support using the "benefit of the bargain" rather than the "out-of-pocket loss" measure of damages, appellants' reliance is misplaced.

Appellants argue that their claim under the Consumer Fraud Act survives because the act does not require a showing of economic loss.

Unable to establish an "injury," plaintiff has no basis for recovery under the Consumer Fraud Act, Minn. Stat. § 325F.69, subd. 1 (1994). In so holding we find it unnecessary to reach the question of whether an allegation of pecuniary loss is required under the Consumer Fraud Act. * * *

K.A.C. v. Benson, 527 N.W.2d 553, 562 (Minn. 1995). In K.A.C., the plaintiff argued that her damage was psychological, not pecuniary; here, if appellants have no pecuniary damage, they have no damage at all.

None of appellants' claims can survive absent a showing of out-of-pocket damages. There was no error of law in granting summary judgment.

3. NSP's Alleged Duty to Disclose

Appellants argue that NSP violated a duty to disclose by telling customers they should rely on NSP's savings estimates and failing to tell them that the estimates were not completely accurate. For this argument, appellants rely on Klein v. First Edina Nat'l Bank, 293 Minn. 418, 421, 196 N.W.2d 619, 622 (1972) (holding that a party has a duty to disclose either when the party has special knowledge to which the other party did not have access or when failing to provide complete information would mislead the other party).

The district court found that NSP had no duty to disclose because it did not have more reliable information, i.e. special information to which appellants did not have access. This finding is supported by the fact that appellants did have access to information on the limitations of the ANSI standards, but did not obtain that information.

Appellants also claim that they were misled because NSP did not tell them that the use of the ANSI standards could inflate savings estimates from 10% to 20%. NSP did disclose that its estimates were not guarantees and that actual savings could vary; there is no evidence that, at the time appellants entered the program, NSP had information on specific percentages. Appellants fail to show that NSP violated a duty to disclose: there is no error in the district court's conclusion.[3]

There is no genuine issue of material fact precluding summary judgment, and NSP is entitled to summary judgment as a matter of law. We affirm.


[*]Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

[1]Appellants also brought claims of deceptive trade practices and money had and received. NSP was granted summary judgment on these claims prior to discovery.

[2]The cost of appellants' new lighting was partially defrayed by the NSP rebates; the remainder has been defrayed by savings on electricity.

[3]NSP argued to the district court and on appeal that because NSP was not involved with the purchase, installation, or modification of appellants' lighting equipment, appellants' action was precluded by Minn. Stat. § 216B.241, subd. 3 (1996), which provides that a utility has no liability for loss caused by an energy conservation improvement except for its own negligence in the purchase, installation, or modification of the product. The district court did not address the issue. In light of our affirming the summary judgment granted on other grounds, we need not address it here. We note, however, that contrary to appellants' argument, the district court's failure to address an issue presented to it does not preclude our consideration of that issue. See Penn Anthracite Mining Co. v. Clarkson Sec. Co., 205 Minn. 517, 520, 287 N.W. 15, 17 (1939) (holding that on appeal a respondent may urge any sound reason for affirmance, even though it is not the one assigned by the trial court for the decision).