Kent D. Mattson, Pemberton, Sorlie, Sefkow, Rufer & Kershner, P.L.L.P., 110 North Mill Street, Post Office Box 866, Fergus Falls, MN 56538-0866 (for respondents)

Considered and decided by Schumacher, Presiding Judge, Huspeni, Judge, and Forsberg, Judge.^**

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Kent D. Mattson, Pemberton, Sorlie, Sefkow, Rufer & Kershner, P.L.L.P., 110 North Mill Street, Post Office Box 866, Fergus Falls, MN 56538-0866 (for respondents)

Considered and decided by Schumacher, Presiding Judge, Huspeni, Judge, and Forsberg, Judge.^**

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 2.

Appellants Miller's Fairway, Inc., d/b/a Walt's Food Center, Miller's Fairway, Walt's Jack & Jill, and Walter and Helen Dietz challenge the district court's grant of summary judgment in favor of respondents Delmar and Betty Schoenborn, arguing the district court erred in dismissing their claims of fraudulent and negligent misrepresentation, promissory estoppel, and breach of the implied covenant of good faith and fair dealing. We affirm.

The Schoenborns planned to sell the building when the Dietzes' lease expired and they advised the Dietzes of their intentions. Walter Dietz initially told the Schoenborns that he was interested in buying the building, but he then informed Delmar Schoenborn that he had changed his mind. After learning that the Dietzes were not interested in buying the building, Delmar Schoenborn approached the Bruggemans, principals of Bruggeman's Super Valu, the only other grocery store in town. The Bruggemans made an offer to buy the building under the terms proposed by the Schoenborns.

The Dietzes' lease granted them a right of first refusal. As required by the lease, the Schoenborns provided the Dietzes formal notice of the anticipated sale, advising them that they had 30 days to make an offer to purchase the building comparable to the offer made by Bruggemans. The Bruggemans had requested anonymity until the completion of the purchase and the Schoenborns did not disclose their identity. The Dietzes offer to purchase the building was substantially less than the offer made by the Schoenborns, and their offer therefore did not trigger the Dietzes' purchase option.

The Dietzes claim they did not exercise their right of first refusal because the Schoenborns failed to advise them that their competitors, the Bruggemans, were buying the building and because Delmar Schoenborn told Dave Sjol, a butcher employed by the Dietzes, and others associated with the Dietzes, that the new owner would be willing to lease the building to the Dietzes. After the Bruggemans' purchase, they declined to lease to the Dietzes or their associates and the Dietzes were required to vacate the building.

The Dietzes commenced this action against the Schoenborns alleging fraudulent and negligent misrepresentation, promissory estoppel, and breach of an implied covenant of good faith and fair dealing. The Schoenborns moved for summary judgment and the district court granted the motion. The Dietzes appealed.

1. The Dietzes argue that the district court erred in dismissing their claims of fraudulent and negligent misrepresentation. We disagree.

Fraudulent misrepresentation consists of: (1) a false representation of a past or present material fact that is susceptible of knowledge; (2) made with knowledge of the falsity or without knowing it to be false or true; (3) an intent to induce an act in reliance on the false representations; and (4) actual and justifiable reliance. Berryman v. Riegaert, 286 Minn. 270, 275, 175 N.W.2d 438, 442 (1970). Negligent misrepresentation is comprised of the same elements as fraudulent misrepresentation, except proof of fraudulent intent is not required. Florenzano v. Olson, 387 N.W.2d 168, 173-74 (Minn. 1986). Instead, a claim of negligent misrepresentation may arise when a person owing a duty to the recipient of information fails to exercise reasonable care in obtaining and communicating the information. Id. at 174.

Actionable misrepresentation cannot stem from a representation of future events. Rognlien v. Carter, 443 N.W.2d 217, 220-21 (Minn. App. 1989), review denied (Minn. Sept. 21, 1989).

A representation or expectation as to future events is not a sufficient basis to support an action for fraud merely because the represented act did not take place.

Id. (citing Belisle v. Southdale Realty Co., 283 Minn. 537, 539-40, 168 N.W.2d 361, 363 (1969)).

The Dietzes claim Delmar Schoenborn misrepresented that the buyers would be willing to lease the building as a grocery store to them or to Sjol. These statements were predictions of future events or expectations, however, and do not give rise to claims for fraudulent misrepresentation or negligent misrepresentation.

The Dietzes also claim the Schoenborns' failure to disclose the identity of the buyers was fraudulent misrepresentation by omission. An omission of a material fact constitutes fraudulent misrepresentation if "one party has special access to the facts and the other does not, or omitting the fact in question is misleading." Sit v. T & M Properties, 408 N.W.2d 182, 186 (Minn. App. 1987) (citing Klein v. First Edina Nat'l Bank, 293 Minn. 418, 421, 196 N.W.2d 619, 622 (1972)).

The Schoenborns complied with their obligation under the lease to provide the Dietzes with written notice of a bona fide buyer and the terms of the offer. The Schoenborns had no duty to disclose the identity of the buyers. The district court correctly concluded the Dietzes did not present facts establishing an action for misrepresentation by omission.

2. The Dietzes argue that the district court erred in dismissing their claim of promissory estoppel. They claim Delmar Schoenborn's representations that the new owner of the building intended to lease the building as a grocery store created an enforceable promise. We disagree.

Promissory estoppel consists of: (1) a promise; (2) the promisor expected or reasonably should have expected the promise would induce action or forbearance; (3) the promise did induce action or forbearance; and (4) the promise must be enforced to avoid injustice. Grouse v. Group Health Plan, Inc., 306 N.W.2d 114, 116 (Minn. 1981) (quoting Restatement of Contracts § 90 (1932)). A promise must be clear and definite to support a promissory estoppel claim. Ruud v. Great Plains Supply, Inc., 526 N.W.2d 369, 372 (Minn. 1995).

The statements the Dietzes allege Delmar Schoenborn made concerning the buyers' intent to lease the building were not clear and definite promises capable of enforcement. Because the facts the Dietzes allege do not establish a clear and definite promise, the district court correctly dismissed their promissory estoppel claim.

3. The Dietzes argue the district court erred in dismissing their claim that the Schoenborns breached the implied covenant of good faith and fair dealing. They claim the Schoenborns prevented them from exercising their right of first refusal by advising them that the buyers would continue to lease the building, and by failing to disclose that the Bruggemans were the buyers.

Implied in every non-sales contract is a covenant of good faith and fair dealing. American Warehousing & Distrib. Inc. v. Michael Ede Mgmt., 414 N.W.2d 554, 557 (Minn. App. 1987), review dismissed (Minn. Jan. 20, 1988). The implied covenant of good faith and fair dealing prohibits the parties to a contract from unjustifiably hindering performance of the contract. Zobel & Dahl Const. v. Crotty, 356 N.W.2d 42, 45 (Minn. 1984).

The Dietzes presented no evidence that the Schoenborns hindered their performance of the lease contract. The Schoenborns repeatedly advised the Dietzes that they intended to sell the building. Walter Dietz told Delmar Schoenborn that he wanted to purchase the building, but later advised Schoenborn that he had changed his mind. Subsequently, the Dietzes formally declined to exercise their right of first refusal under the lease. The Dietzes did not assert that they were forfeiting their right of first refusal because Schoenborn promised the buyers would lease the building. Instead, the Dietzes stated they did not believe the building was worth the asking price. The lease contained no provision requiring the Schoenborns to reveal the identity of a potential buyer and the Dietzes do not explain how such a provision could be implied in the lease.

Affirmed.

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