This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-970

Donald Franklin Granlund, Jr.,
Appellant,

vs.

Mark L. Lumley,
Respondent,

Michael Droubie,
Respondent,

Suzanne Droubie,
Respondent,

Bogart, Pederson & Associates, Inc., et al.,
Respondents.

 

Filed May 15, 2007

Affirmed in part, reversed in part, and remanded

Wright, Judge

 

Mille Lacs County District Court

File No. 48-CV-05-2031

 

John M. Huberty, Curott & Associates, 116 Second Avenue Southwest, P.O. Box 206, Milaca, MN  56353 (for appellant)

 

Mark L. Lumley, 17805 57th Street Southeast, Becker, MN  55308 (pro se respondent)

 

John H. Wenker, Dyan J. Ebert, Quinlivan & Hughes, 400 South First Street, Suite 600, P.O. Box 1008, St. Cloud, MN  56302 (for respondents Michael Droubie, Suzanne Droubie)

 

Nicole R. Weinand, Reyelts, Leighton, Bateman, Hylden & Sturdevant, 700 Providence Building, 332 West Superior Street #700, Duluth, MN  55802 (for respondents Bogart, Pederson & Associates, Dennis Pederson)

 

            Considered and decided by Hudson, Presiding Judge; Randall, Judge; and Wright, Judge.

U N P U B L I S H E D  O P I N I O N

WRIGHT, Judge

In this boundary dispute, appellant challenges the district court’s grant of summary judgment in favor of respondents, arguing that the district court granted relief beyond that sought by appellants and failed to give appellant a meaningful opportunity to oppose summary judgment before resolving certain issues sua sponte.  Appellant also argues that the denial of his motion to amend the complaint to add a claim of professional negligence against respondent surveyor was an abuse of discretion.  By notice of review, respondent surveyor maintains that the district court lacked subject-matter jurisdiction over appellant’s claims.  We affirm in part, reverse in part, and remand.

FACTS

            The boundary dispute at issue here involves two parcels of land.  Steven Seeger of Rum River Land Surveyors, Inc. completed a survey of the southern parcel’s northern boundary in 2003.  Shortly thereafter, appellant Donald Granlund obtained title to that parcel.  Respondent Mark Lumley, who owned the northern parcel at that time, hired respondent Dennis Pederson of respondent Bogart, Pederson & Associates, Inc. (BPA), who also served as the Mille Lacs County surveyor, to survey the southern boundary of the northern parcel.  Pederson’s survey placed the boundary between the two parcels farther south from where Seeger’s survey placed it.  To determine the boundary, Pederson relied on his determination of the proper location of the east quarter corner of the section, which he established based in part on tree stumps that he identified as the monument tamarack stumps on which a 1910 survey was based.  In his capacity as the county surveyor, Pederson certified this location of the east quarter corner as the official government location.  At Granlund’s urging, the county hired another surveyor to review the certified location.  That surveyor ultimately concluded that Pederson had correctly determined the location of the east quarter corner.

            Respondents Michael and Suzanne Droubie purchased Lumley’s property in March 2005.  Granlund served a complaint in July on Pederson, BPA, the Droubies, and Lumley, alleging claims of negligent misrepresentation against Pederson and BPA (hereinafter “Pederson respondents”), common-law trespass and an action to determine boundaries under Minn. Stat. § 559.23 (2004) against the Droubies, and statutory and common-law trespass and conversion against Lumley.  Granlund later moved to amend the complaint to add Seeger and Rum River Land Surveyors as defendants and to add a claim of professional negligence against the Pederson respondents.  While the motion was pending, the Pederson respondents moved for summary judgment on the negligent‑misrepresentation claim and the Droubies moved for summary judgment on the trespass claim and action to determine the boundary. 

            In an order dated March 24, 2006, the district court denied Granlund leave to amend the complaint and granted the summary‑judgment motions.  The district court also entered summary judgment sua sponte in favor of Lumley.  The district court determined that there was not a genuine issue of material fact as to the elements of the negligent-misrepresentation claim or the location of the east quarter corner on which the boundary relied.[1] Concluding that Granlund’s allegations did not establish the elements of a negligent-misrepresentation claim or genuine material fact issues for a professional-negligence claim to withstand summary judgment, the district court denied the motion to amend.

            Granlund moved for relief under Minn. R. Civ. P. 60.02, which the district court denied.  This appeal followed.

D E C I S I O N

I.

            Because subject-matter jurisdiction is a threshold requirement for this controversy, we begin by addressing the Pederson respondents’ argument that the district court was without such jurisdiction to hear Granlund’s claims.  The Pederson respondents argue that subject-matter jurisdiction is lacking because Granlund is collaterally challenging the county’s decision to record a certificate of location of the east quarter corner, which is a decision subject only to certiorari review by this court.  The district court rejected this argument, reasoning that the county’s decision was not a quasi-judicial decision because it was not binding.

Whether subject-matter jurisdiction exists is a question of law, which we review de novo.  Shaw v. Bd. of Regents of Univ. of Minn., 594 N.W.2d 187, 190 (Minn. App. 1999), review denied (Minn. July 28, 1999).  The Pederson respondents correctly observe that, unless otherwise provided by statute, this court has exclusive jurisdiction over challenges to an administrative agency’s quasi-judicial decisions.  See Willis v. County of Sherburne, 555 N.W.2d 277, 281-82 (Minn. 1996) (holding that petition for writ of certiorari to court of appeals is exclusive procedure for challenging administrative agency’s quasi-judicial decisions).  But contrary to the Pederson respondents’ argument, Granlund is not challenging the county’s decision to certify the quarter-corner location.  Rather, he is challenging the actions of the Pederson respondents that caused the county to reach that decision and the actions of the Droubies and Lumley in response to the county’s certification decision.  The district court has subject-matter jurisdiction to adjudicate the claims alleged.  See, e.g., Greuling v. Wells Fargo Home Mortgage, Inc., 690 N.W.2d 757, 760 (Minn. App. 2005) (reviewing district court’s grant of summary judgment on negligent-misrepresentation claim); Williamson v. Prasciunas, 661 N.W.2d 645, 649 (Minn. App. 2003) (reviewing district court’s grant of summary judgment on conversion claim); Copeland v. Hubbard Broad., Inc., 526 N.W.2d 402, 404-05 (Minn. App. 1995) (reviewing district court’s grant of summary judgment on trespass claim), review denied (Minn. Mar. 29, 1995).  Therefore, the challenge based on lack of subject-matter jurisdiction is without merit.

II.

            Granlund contends that the district court erred by granting summary judgment in favor of respondents.  On review of a district court’s decision to grant summary judgment, we consider whether there are any 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).  Mere averments set forth in the pleadings are insufficient to counter a motion for summary judgment.  Minn. R. Civ. P. 56.05.  A genuine issue of material fact does not exist when the nonmoving party presents evidence that creates merely a metaphysical doubt as to a factual issue or evidence that is not sufficiently probative as to permit reasonable people to draw different conclusions regarding an essential element of that party’s case.  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  Rather, there must be evidence sufficient to establish an essential element on which the nonmoving party bears the burden of proof.  Id.  Therefore, to oppose a motion for summary judgment successfully, the nonmoving party is required to “extract specific, admissible facts from the voluminous record” that show that a genuine issue of material fact exists.  Kletschka v. Abbott-Northwestern Hosp., Inc., 417 N.W.2d 752, 754 (Minn. App. 1988), review denied (Minn. Mar. 30, 1988).  Summary judgment shall be granted if the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that either party is entitled to judgment as a matter of law.”  Minn. R. Civ. P. 56.03.

A.

            On Granlund’s negligent-misrepresentation claim against the Pederson respondents, the district court held that there was no genuine issue of material fact regarding the essential elements of the claim.  The elements of negligent misrepresentation include (1) a duty of reasonable care in conveying information; (2) breach of that duty by negligently giving false information; (3) reasonable reliance on the misrepresentations, which proximately caused the injury; and (4) damages.  Smith v. Brutger Cos., 569 N.W.2d 408, 413 (Minn. 1997). 

            Although Granlund does not seek reversal of summary judgment on the negligent-misrepresentation claim, he argues that the district court improperly considered the breach element because the Pederson respondents had not challenged that element in their summary-judgment motion.  The district court’s thorough analysis of the elements was correct.  Absent a duty, a breach of that duty cannot be established.  Any procedural error that may exist based on Granlund’s notice argument was harmless because summary judgment is appropriate when the district court determines that a genuine issue of material fact is lacking as to any essential element of a claim.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).  In addition to ruling on the breach element, the district court correctly held that Granlund failed to establish the essential elements of duty, reliance, and damages, all of which were identified by the Pederson respondents in their summary-judgment motion.  We, therefore, affirm the district court’s grant of summary judgment in favor of the Pederson respondents.

B.

            We next address Granlund’s challenge to summary judgment in favor of the Droubies in the action to determine the boundary between the parcels under Minn. Stat. § 559.23.

An action may be brought by any person owning land or any interest therein against the owner, or persons interested in adjoining land, to have the boundary lines established; and when the boundary lines of two or more tracts depend upon any common point, line, or landmark, an action may be brought by the owner or any person interested in any of such tracts, against the owners or persons interested in the other tracts, to have all the boundary lines established.  The court shall determine any adverse claims in respect to any portion of the land involved which it may be necessary to determine for a complete settlement of the boundary lines . . . .

 

Minn. Stat. § 559.23 (2004).  In his action under section 559.23 to determine the proper location of the east quarter corner, Granlund alleged that the boundary line between his property and the Droubies’ property depends on the location of that corner.  In granting summary judgment in favor of the Droubies on this claim, the district court held that Granlund “failed to present any specific evidence raising a genuine issue of material fact as to the boundary line[, as determined by the certified location of the east quarter corner,] being improperly located.”

            Granlund maintains that summary judgment on the section 559.23 claim was improperly granted because, without a motion from the Droubies on that claim, he did not have a meaningful opportunity to oppose summary judgment by identifying evidence supporting a material fact issue as to the proper location of the boundary line.  But Granlund misstates the procedural posture of the section 559.23 claim.  The Droubies moved for summary judgment based on lack of subject-matter jurisdiction over the claim.  When the district court granted the Droubies’ summary-judgment motion, it did so on a different ground, namely, the absence of a material fact issue regarding the proper location of the east quarter corner.  Unless an appellant can show prejudice from procedural irregularities, a lack of notice, or a lack of meaningful opportunity to oppose summary judgment, the district court’s sua sponte grant of summary judgment on a different ground from that advanced by the movant will not be disturbed on appeal.  Estate of Riedel v. Life Care Retirement Cmtys., Inc., 505 N.W.2d 78, 81 (Minn. App. 1993).

            Granlund had a meaningful opportunity to oppose summary judgment on the section 559.23 claim based on the proper location of the east quarter corner because the Droubies’ summary-judgment motion on Granlund’s common-law trespass claim was founded on this very issue.  But rather than identifying evidence that creates a fact issue regarding the boundary line’s proper location, Granlund merely argued that, because the Droubies had failed to produce any evidence in negation of Granlund’s claims, the burden to produce evidence that creates a genuine issue of material fact did not shift to him.  We, therefore, reject Granlund’s argument that he did not have a meaningful opportunity to oppose summary judgment on this ground.

            Granlund argues, in the alternative, that there is sufficient evidence to establish a genuine issue of material fact regarding the proper location of the boundary line, as determined by the proper location of the east quarter corner.  In support of this argument, Granlund relies on the Seeger survey,[2] which contradicts the recorded location of the east quarter corner and, consequently, the boundary line.[3]  See, e.g., Wojahn v. Johnson, 297 N.W.2d 298, 303 (Minn. 1980) (stating that “when two competent surveyors disagree as to where a boundary line should be,” fact-finder’s determination of which surveyor is correct “depends mainly on each surveyor’s credibility”).  Because the Seeger survey’s location of the east quarter corner differs from that of the Pederson survey, there is a genuine issue of material fact as to the proper location of the boundary line.  We, therefore, reverse the district court’s grant of summary judgment on Granlund’s action to determine the boundary line under section 559.23.

            Granlund’s common-law trespass claims against the Droubies and Lumley and his statutory-trespass and conversion claims against Lumley all turn on the proper location of the boundary line.  In light of the controverted factual issue created by the competing surveys’ locations of the east quarter corner, the district court erred by granting summary judgment on these claims.[4]

III.

            Granlund also challenges the district court’s denial of his motion to amend the complaint to add a claim of professional negligence against the Pederson respondents.  The district court denied the motion because Granlund had not alleged sufficient facts to survive summary judgment on that proposed claim.

            A district court has broad discretion when deciding whether to grant leave to amend a complaint, and its ruling will not be reversed absent a clear abuse of discretion.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  A party may amend its complaint after a responsive pleading has been filed if the party obtains leave of court.  Minn. R. Civ. P. 15.01.  Although leave to amend shall be “freely given when justice so requires,” id., it should not be given if the amendment would prejudice the adverse party, Rosenberg v. Heritage Renovations, LLC, 685 N.W.2d 320, 332 (Minn. 2004).  When determining whether to grant leave to amend a complaint, the district court may consider whether the amendment states a claim on which relief may be granted and whether sufficient evidence exists to support the amendment.  1 David F. Herr & Roger S. Haydock, Minnesota Practice § 15.5 (4th ed. 2002).  If a party attempts to amend the complaint after significant discovery has occurred, and the proposed claim states a cognizable legal claim, the district court may look at the evidence to determine whether it supports the claim.  Id.  When the movant fails to produce evidence that supports the proposed claim, Bib Audio-Video Prods. v. Herold Mktg. Assocs., Inc., 517 N.W.2d 68, 73 (Minn. App. 1994), or when the proposed claim could not survive summary judgment, Bebo v. Delander, 632 N.W.2d 732, 740 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001), leave to amend is properly denied.

            Although Minnesota courts have not succinctly defined the elements of a professional-negligence claim, they generally have required a showing of a direct or indirect professional relationship or foreseeable reliance on the professional’s services.  Francis v. Piper, 597 N.W.2d 922, 924-25 (Minn. App. 1999) (holding that attorney is liable only to clients and nonclient third parties when client’s sole purpose in retaining attorney is to benefit directly nonclient third party), review denied (Minn. Oct. 26, 1999); Waldor Pump & Equip. Co. v. Orr-Schelen-Mayeron & Assocs., Inc., 386 N.W.2d 375, 377 (Minn. App. 1986) (considering whether engineering firm was professionally negligent and holding that “[t]he reasonable skill and judgment expected of professionals must be rendered to those who foreseeably rely upon the services”).

            Granlund did not allege in the complaint or in his motion to amend that he had a professional relationship with the Pederson respondents either because he hired them or because Lumley hired them for Granlund’s exclusive benefit.  He also did not allege that he relied on the services provided by the Pederson respondents.  Granlund also failed to present any evidence of a professional relationship or foreseeable reliance.  The district court, therefore, properly denied the motion to amend the complaint because the proposed professional-negligence claim could not survive summary judgment.[5]  See Bebo,632 N.W.2d at 740 (holding that district court may deny motion to add new claim if new claim could not survive summary judgment).

            For the foregoing reasons, we affirm the district court’s determination that it possessed subject-matter jurisdiction to hear Granlund’s claims.  We also affirm the entry of summary judgment on the negligent-misrepresentation claim and the denial of Granlund’s motion to amend the complaint.  But we reverse the summary judgment on the action to determine the boundary line and the claims of statutory trespass, common‑law trespass, and conversion; and we remand for further proceedings.

            Affirmed in part, reversed in part, and remanded.