This opinion will be unpublished and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
CX-97-1410

Althea Willette, et al.,
Appellants,

vs.

Deborah J. Smith, et al.,
Respondents,

Thomas A. Koepke,
Respondent,

Burnet Realty, Inc.,
Respondent,

Penfield, Inc.,
Respondent,

vs.

Thomas A. Koepke,
third-party plaintiff,
Respondent,

vs.

Great Lakes Mortgage, a joint venture of
TCF Mortgage Co., et al.,
third-party defendants,

and

Deborah J. Smith, et al.,
third-party plaintiffs,
Respondents,

vs.

Twin City Transportation, Inc., et al.,
third-party defendants,
Respondents.

Filed April 14, 1998
Affirmed in part, reversed in part, and remanded
Klaphake, Judge

Ramsey County District Court
File No. C8-95-12767

Harry T. Neimeyer, Stringer & Rohleder, Ltd., 1200 Norwest Center Tower, 55 East Fifth Street, St. Paul, MN 55101 (for appellants)

J. Brian O'Leary, O'Leary & Moritz, Chartered, P.O. Box 76, 102 North Marshall, Springfield, MN 56087 (for respondents Smith, et al.)

Bruce L. Beck, Galena & Beck, 402 Executive Office Center, 2785 White Bear Avenue North, St. Paul, MN 55109 (for respondent Koepke)

Wendy J. Wildung, Sidney J. Spaeth, Faegre & Benson LLP, 2200 Norwest Center, 90 South Seventh Street, Minneapolis, MN 55402 (for respondent Burnet Realty)

Michael J. Weidner, The Joanis Law Group, 630 Pillsbury Center, 200 South Sixth Street, Minneapolis, MN 55402 (for respondents Twin City Transportation, et al.)

Kenneth J. Rohleder, 665 North Snelling Avenue, St. Paul, MN 55104 (for respondent Penfield)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Willis, Judge.

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

KLAPHAKE, Judge

This appeal is from a judgment dismissing fraud and misrepresentation claims in connection with the sale of real property. Because the findings support dismissal of the claims against all respondents except seller Archie Smith, and because the trial court was required to determine damages after it found that Smith violated the Consumer Fraud Act, we affirm in part, reverse in part, and remand for a determination of those damages.

FACTS

Appellant Althea Willette[1] purchased property from respondents Deborah and Archie Smith. Respondent Thomas Koepke was an agent for respondent Burnet Realty, the listing agency. Respondent Penfield, Inc. prepared an appraisal of the property. Willette sued, claiming fraud and misrepresentation, and alleging violation of the Consumer Fraud Act (Act). Minn. Stat. §§ 325F.69-.70 (1996). Willette alleged that (1) the Smiths, Burnet Realty, and Koepke misrepresented that the basement portion of the property was commercially zoned; (2) the Smiths misrepresented the status of an existing lease; and (3) Burnet Realty, Koepke, and Penfield, Inc. prepared a false residential lease in order to obtain residential financing on the property.[2] The trial court granted summary judgment and dismissed Willette's claims against Burnet Realty, Koepke, and Penfield, Inc., but ruled material issues of fact existed on her claims against the Smiths.

After trial, the court treated the jury's special verdict responses as advisory. The court found that the Smiths did not misrepresent the zoning of the property; Willette suffered no damages with respect to the zoning claim because the fair market value equaled the purchase price; the Smiths made no misrepresentation with respect to the status of the commercial lease; and Archie Smith violated the Act in connection with the sale of the property.

On appeal, Willette challenges the trial court's failure to award damages and attorney fees against Archie Smith for his violation of the Act. Willette also challenges the grant of summary judgment to Burnet Realty, Koepke, and Penfield on her misrepresentation claims involving the zoning of the property and the false financing; she does not challenge the court's finding that no misrepresentation was made regarding the lease.

D E C I S I O N

Because the trial court treated the jury's findings as advisory and made its own findings, we review the findings as if from a court trial. See Hubbard v. United Press Int'l, Inc., 330 N.W.2d 428, 441 (Minn. 1983) (findings made by court after advisory jury reviewed for clear error). If no motion for a new trial is made, our review is limited to whether the evidence supports the findings and whether those findings support the judgment. See Auto-Owners Ins. Co. v. Harris, 374 N.W.2d 795, 797 (Minn. App. 1985).

I.

Willette claims the trial court erred by refusing to award damages based on its finding that Archie Smith committed consumer fraud,[3] which is defined as

[t]he act, use, or employment by any person of any fraud, false pretense, false promise, misrepresentation, misleading statement or deceptive practice, with the intent that others rely thereon in connection with the sale of any merchandise[.]

Minn. Stat. § 325F.69, subd. 1 (1996). Once the trial court found Archie Smith had violated the Act, it was required to determine damages. Damages available under the Act differ from those available at common law for fraud or misrepresentation. Compare Raach v. Haverly, 269 N.W.2d 877, 881 (Minn. 1978) (measure of damages for fraud or misrepresentation involving sale of real estate is difference between what buyer paid for property and true value) with LeSage v. Norwest Bank, 409 N.W.2d 536, 539 (Minn. App. 1987) (Act is broader than common law fraud). In particular,

any person injured by a violation of [the Act] may bring a civil action and recover damages, together with costs and disbursements, including costs of investigation and reasonable attorney's fees, and receive other equitable relief as determined by the court.

Minn. Stat. § 8.31, subd. 3a. (1996). Accordingly, we remand to the trial court to determine the amount of damages Willette has established to be a result of Archie Smith's violation of the Act and for an award of attorney fees. See Mattson v. Rochester Silo, Inc., 397 N.W.2d 909, 916 (Minn. App. 1986) (Minn. Stat. § 8.31, subd. 3a allows attorney fees "when a person is injured by a violation of the Consumer Fraud Statute") (emphasis added); cf. Kronebusch v. MVBA Harvestore Sys., 488 N.W.2d 490, 494-95 (Minn. App. 1992) (statute allows attorney fees in all cases, not just those involving nominal damages), review denied (Minn. Oct. 20, 1992); Yost v. Millhouse, 373 N.W.2d 826, 831 (Minn. App. 1985) (findings that defendant misrepresented that horse was registered and that plaintiff's damages equaled $50 constitutes violation of Act, entitling plaintiff to reasonable attorney fees).

II.

Willette challenges the trial court's grant of summary judgment to Burnet Realty and Koepke on her misrepresentation claim. Regardless of any errors that might have existed at the time summary judgment was granted, we rely on the record at the time of final judgment, including disputed facts ultimately decided by the trial court. Cf. Denike v. Western Nat'l Mut. Ins. Co., 473 N.W.2d 370, 373 (Minn. App.1991) (any order adjudicating fewer than all claims subject to revision at any time before entry of judgment adjudicating all claims).

Misrepresentation requires a false statement or a negligent failure to disclose that causes damage. See Florenzano v. Olson, 387 N.W.2d 168, 173 (Minn. 1986). Willette claimed that Burnet Realty and Koepke represented that the existing commercial use of the basement was legally permissible and that they failed to mention that the commercial zoning permit would need to be renewed for any new or different use. After trial against the Smiths, however, the court found that the fair market value of the property equaled the purchase price; the record reasonably supports this finding. Because Willette established no out-of-pocket damages, she is not entitled to recover on her zoning misrepresentation claim against Burnet Realty and Koepke. In light of the findings made after trial, by which Willette is bound, any error in the earlier grant of summary judgment was harmless. Minn. R. Civ. P. 61 (court must disregard any error or defect in proceeding "which does not affect the substantial rights of the parties").

Willette also claimed damages based on a false residential lease prepared by Burnet Realty, Koepke, and Penfield, Inc. The lease was prepared with Willette's acquiescence. The court's finding that the property's value equaled the purchase price similarly precludes Willette from recovering on this false financing claim.

Affirmed in part, reversed in part, and remanded.

[1] Althea Willette's parents, Michael and Joanne Willette, cosigned her mortgage note; their claims thus derive from Althea Willette's claims.

[2] Koepke brought a third-party complaint against Great Lakes Mortgage and Burnet Realty, based on Willette's false financing claim. Similarly, the Smiths brought a third-party action against Twin City Transportation, Inc. and its owner, based on Willette's claim for misrepresentation of the status of the lease. The trial court also granted summary judgment to these third-party defendants. Because we are affirming dismissal of Willette's false financing claim and because Willette is not challenging dismissal of the lease claim, dismissal of the third-party defendants is not affected by this appeal.

[3] We cannot ignore this finding or otherwise assume that it was unintentional or meaningless. Moreover, Smith has not challenged this finding of liability under the Act by notice of review. Cf. Smoliak v. Myhr, 361 N.W.2d 153, 157 (Minn. App. 1985) (issue raised by respondent but not included in notice of review need not be addressed on appeal).