                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-1575

                                   Paul J. Krause, et al.,
                                      Respondents,

                                             vs.

                                     City of Elk River,
                                         Appellant.

                                   Filed June 22, 2015
                                        Affirmed
                                      Reyes, Judge

                             Sherburne County District Court
                                  File No. 71CV131006

Thomas M. Scott, Campbell Knutson, Eagan, Minnesota (for appellant)

Howard Roston, Erin M. Secord, Fredrikson & Byron, P.A., Minneapolis, Minnesota (for
respondent)

       Considered and decided by Reyes, Presiding Judge; Hudson, Judge; and

Bjorkman, Judge.

                         UNPUBLISHED OPINION

REYES, Judge

       In this interlocutory appeal from the district court’s denial of appellant’s motion

for summary judgment, appellant argues that common-law vicarious official immunity

bars respondents’ action against appellant for breach of representations and warranties.

We affirm.
                                           FACTS

       Respondents Paul and Pamela Krause were owners of approximately 27 acres of

real property (property) in Sherburne County. The property was home to the Pinewood

Golf Course. Following months of negotiation, on or around April 6, 2006, respondents

entered into a real-estate purchase agreement with appellant City of Elk River for the sale

of property. In a paragraph entitled “Buyer’s Representations and Warranties,” appellant

warranted that it had the requisite power and authority to enter into the purchase

agreement. A paragraph labeled “Remedies” also provided that respondents retained “the

right to specifically enforce [the] [purchase] agreement or to seek damages from

[appellant].”

       The purchase agreement included material terms regarding the sale and a separate

lease contract. In relevant part, the purchase agreement required appellant, as tenant, to

lease property from respondents for a two-year period beginning on or about April 6,

2006, providing as consideration a $300,000 earnest money payment and payments of

$90,000 per year. The purchase agreement also provided that, at the conclusion of the

two-year lease period, appellant would purchase property, and the parties would enter

into a five-year contract for deed (the contract for deed). Appellant made payments

according to the terms of the purchase agreement. After the two-year lease period ended,

the parties entered into the contract for deed.

       The contract for deed modified the original terms of the purchase agreement by

requiring appellant to pay an additional $90,000 in earnest money. As a result, the

contract for deed provided for yearly interest payments in the reduced amount of $84,600


                                              2
and required a final balloon payment in the principal amount of $1,410,000 to be due at

the end of five years. On appeal, the parties do not dispute that the purchase agreement

and the contract for deed are a single legal transaction that must be read together

(collectively, the contract).

       On April 6, 2013, appellant breached the contract when it failed to make the final

balloon payment. Instead, appellant proposed to pay off the contract for deed at a

reduced price and provided respondents with evidence that property had decreased in

value. Respondents brought an action in district court alleging claims, as amended, for

breach of contract (count I), declaratory judgment (count II), and breach of

representations and warranties (count III). Respondents sought specific performance and

damages pursuant to the “Remedies” provision in the parties’ purchase agreement.

I.     First Summary Judgment

       Respondents moved for summary judgment on all three counts. Appellant also

moved for summary judgment, requesting that respondents’ complaint be dismissed in its

entirety. Appellant conceded the count I breach-of-contract claim but argued that

respondents were statutorily prohibited from compelling appellant to specifically perform

the terms of the agreement. Appellant also denied that there was a breach of

representations and warranties as alleged in count III of respondents’ complaint.

       The district court determined, inter alia, that respondents were not entitled to

specific performance as a matter of law pursuant to Minn. Stat. § 412.221, subd. 2 (2014)

because appellant “did not possess the authority to enter into a[n] . . . agreement granting

[respondents] with the remedy of specific performance.” Accordingly, the district court


                                              3
dismissed count II (declaratory judgment). However, the district court concluded that

appellant was in breach of the representations and warranties clause in the purchase

agreement. The district court granted partial summary judgment to respondents on that

claim and reserved the issue of damages for trial.1

II.    Motion for Reconsideration

       Appellant filed a motion requesting reconsideration as to count III, arguing that it

was not provided adequate opportunity to brief the legal theories before the district court

made its decision. The district court denied the motion and explained that appellant had

adequate notice of respondents’ breach-of-representations-and-warranties claim, as

evidenced by appellant’s own motion for summary judgment seeking dismissal of all of

respondents’ claims. The district court also noted that, at the previous motion hearing,

both parties indicated that the issues were ripe for summary judgment.

III.   Second Summary Judgment

       About two months later, appellant filed a second motion for summary judgment

and again requested that the district court dismiss count III. This time, appellant argued

that the alleged breach of representations and warranties involves a representation of law


1
  The district court also concluded that the representations and warranties clause
remained enforceable and that the remainder of the parties’ contract was not void despite
the illegal “Remedies” provision in the purchase agreement. Similarly, although not at
issue on appeal, we note that the remainder of the provision granting respondents the
right to seek damages from appellant remains enforceable despite the portion that allowed
respondents the right to specifically enforce the contract being void. The provision
provides that “[respondents] shall have the right to specifically enforce [the] agreement
or to seek damages from [appellant].” It is clear that the district court believes
respondents are entitled to seek damages, as evidenced by its order discussing possible
calculations of damages and the trial date set to determine damages.

                                             4
and therefore it is not actionable. The district court denied the motion, stating that the

parties dispute whether the breach-of-representations-and-warranties claim was to a

misrepresentation of law, fact, or mixed law and fact was disputed by the parties and thus

it was not appropriate to resolve on a motion for summary judgment.

IV.    Third Summary Judgment

       For a third time, appellant moved the district court for summary judgment as to

count III, arguing that it was barred by the doctrine of common-law vicarious official

immunity because count III is actually a misrepresentation claim grounded in tort. The

district court denied the motion with respect to count III, and this interlocutory appeal

followed on the common-law official immunity issue.

                                      DECISION

       On a motion for summary judgment, “[j]udgment shall be rendered forthwith 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 a judgment as a matter of law.” Minn. R. Civ. P. 56.03. “While

denial of a motion for summary judgment is not ordinarily appealable, an exception to

this rule exists when the denial of summary judgment is based on rejection of a statutory

or official immunity defense.” Anderson v. Anoka Hennepin Indep. Sch. Dist. 11, 678

N.W.2d 651, 655 (Minn. 2004). This is because “immunity from suit is effectively lost if

a case is erroneously permitted to go to trial.” Gleason v. Metro. Council Transit

Operations, 582 N.W.2d 216, 218 (Minn. 1998).




                                              5
       On appeal from summary judgment, we must determine 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). When reviewing a

denial of summary judgment based on a claim of immunity, we assume the facts alleged

by the nonmoving party are true. Burns v. State, 570 N.W.2d 17, 19 (Minn. App. 1997).

“Whether government entities and public officials are protected by . . . official immunity

is a legal question which this court reviews de novo.” Johnson v. State, 553 N.W.2d 40,

45 (Minn. 1996). The party asserting immunity has the burden of demonstrating

entitlement to that defense. Rehn v. Fischley, 557 N.W.2d 328, 333 (Minn. 1997).

       It is a well-established principle that immunity defenses do not apply to breach-of-

contract claims. McDonough v. City of Rosemount, 503 N.W.2d 493, 497 (Minn. App.

1993) (holding that a city could not assert immunity against a claim for breach of a

contract to purchase land), review denied (Minn. Sept. 10, 1993). When a party brings a

breach-of-contract action against a city, the city “is never entitled to the defense of

immunity.” City of Minneapolis v. Ames & Fischer Co. II, LLP, 724 N.W.2d 749, 756

(Minn. App. 2006). This is because “[a] municipality must perform its valid contracts the

same as an individual or private corporation.” McDonough, 503 N.W.2d at 497

(quotation omitted).

       Appellant argues that the alleged breach of representations and warranties is not a

“pure contract action” because it “has many attributes of a tort claim” whereby

respondents “must show tort-like reliance in order to recover.” Therefore, appellant

argues, official immunity applies. Appellant first cites Midland Loan Fin. Co. v. Madsen,


                                              6
14 N.W.2d 475, 481 (Minn. 1944) for the proposition that reliance upon the warranties is

a required element. We are not persuaded.

        In Midland, the Minnesota Supreme Court stated that, “[t]o enable a party relying

upon breach of express or implied warranty to recover, it must be clear and definite that

there was actual reliance upon the warranties involved.” Id. However, since Midland,

the Minnesota Supreme Court has stated that, to establish a warranty claim, a party need

only allege (1) the existence of warranty; (2) a breach of the warranty; and (3) causation

of damages. Peterson v. Bendix Home Sys. Inc., 318 N.W.2d 50, 52-53 (Minn. 1982).

Cases since Peterson have similarly announced the same elements for a breach-of-

warranty action. See Schweich v. Ziegler, Inc., 463 N.W.2d 722, 730 (Minn. 1990); Craft

Tool & Die Co. v. Payne, 385 N.W.2d 24, 26 (Minn. App. 1986); Imdieke v. Blenda–Life,

Inc., 363 N.W.2d 121, 124 (Minn. App. 1985), review denied (Minn. Apr. 26, 1985).

Because Peterson and its progeny do not require proof of reliance, we decline to require

it here.2

        Appellant next cites several cases to characterize respondents’ claim as a

misrepresentation action grounded in tort. But in the cases cited by appellant, there were


2
  Although one Eighth Circuit case that applied Minnesota law concluded that the
Minnesota Supreme Court would likely require a plaintiff to prove reliance in a breach-
of-warranty case, see Hendricks v. Callahan, 972 F.2d 190, 194 (8th Cir. 1992)
(assuming the validity of the Midland decision although noting the existence of a debate
surrounding the proper characterization of breach-of-warranty claims), there have been
no other cases that cite Midland for that proposition and no cases that expressly state that
reliance is required. Indeed, our supreme court appears to acknowledge as much. In a
footnote in Lyon Fin. Servs., Inc. v. Ill. Paper & Copier Co., the supreme court noted that
it made “no mention of Midland in Peterson and did not discuss [the element of]
reliance.” 848 N.W.2d 539, 544 n.6 (Minn. 2014).

                                              7
no written contracts between the parties and the underlying claims expressly alleged

causes of action grounded in tort. See Snyder v. City of Minneapolis, 441 N.W.2d 781,

786 (Minn. 1989) (landowner brought action against city for negligence when it

erroneously issued a building permit); Northernaire Prods., Inc. v. Crow Wing Cnty., 309

Minn. 386, 388, 244 N.W.2d 279, 281 (1976) (plaintiffs brought action against county

officials to recover for alleged negligent misrepresentation of legal requirements for

holding a music festival); Mohler v. City of St. Louis Park, 643 N.W.2d 623, 629 (Minn.

App. 2002) (plaintiffs brought action against city for negligently misrepresenting an

ordinance and granting a permit to build a garage that exceeded the height restriction in

the zoning ordinance), review denied (Minn. July 16, 2002).

       In contrast, respondents have a written contract with appellant, i.e., the purchase

agreement and contract for deed. The alleged misrepresentation was to an express

provision that is a term of the parties’ contract. It is a bargained-for term to which the

parties manifested their intent to be bound when they entered into the contract.

Moreover, respondents’ claim in count III is pleaded as a breach-of-representations-and-

warranties claim, not just a misrepresentation claim, and they allege facts to support a

claim of breach of warranties. For these reasons, appellant’s argument fails.

       Appellant relies on the previously discussed cases to argue that a

misrepresentation of law is not actionable. While that is true for a claim in tort,

Minnesota courts have not applied a similar holding to misrepresentations of law in

actions derived from contractual obligations. Lyon Fin. Servs., Inc., 848 N.W.2d at 544

(rejecting Illinois Paper’s argument that a representation of law is not actionable under


                                              8
“any theory—contract, warranty, or otherwise”). Nevertheless, because the district court

did not make a determination as to whether the representations and warranties provision

in the purchase agreement is a representation of fact or law, we decline to further address

this issue on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (appellate

courts generally do not address issues not considered by the district court).

       Finally, respondents argue that appellant waived any immunity defense by

“engaging in protracted litigation.” However, respondents cite no legal authority to

support their argument and thus it is waived. Schoepke v. Alexander Smith & Sons

Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 133, 135 (1971) (holding that an

assignment of error based on mere assertion and not supported by any argument or

authorities in appellant’s brief is waived and will not be considered on appeal unless

prejudicial error is obvious on mere inspection). Moreover, “[a]n immunity, although

best included within an answer, is not waived if it is not included in the answer.” Rehn,

557 N.W.2d at 332. Likewise, respondents’ argument, without citation to any legal

authority, that appellant cannot claim vicarious official immunity because it has not “sued

any [c]ity officials in their individual capacity,” is also waived. Schoepke, 290 Minn. At

519-20, 187 N.W.2d at 135. However, we note that “a government employer may

generally invoke the doctrine of vicarious official immunity even if the individual official

whose conduct is at issue is not a named defendant in the suit.” Wiederholt v. City of

Minneapolis, 581 N.W.2d 312, 317 (Minn. 1998).




                                             9
       Respondents’ breach-of-warranty claim is an action based in contract.3 Thus, the

district court did not err in concluding that official immunity does not apply and denying

appellant’s motion for summary judgment.

       Affirmed.




3
 Because we conclude that respondents’ breach-of-warranty claim is an action based in
contract and not barred by common-law vicarious official immunity, we need not decide
whether appellant’s actions were discretionary or ministerial.

                                            10
