John Moore, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1922

John Moore,
Appellant,

vs.

Deborah G. Fletcher,
Respondent.

Filed September 5, 2017
Affirmed
Peterson, Judge

Hennepin County District Court
File No. 27-CV-16-7615

John Moore, Minneapolis, Minnesota (pro se appellant)

Susan K. Wiens, The Environmental Law Group, Ltd., Mendota Heights, Minnesota (for
respondent)

Considered and decided by Smith, Tracy M., Presiding Judge; Peterson, Judge; and
Connolly, Judge.
U N P U B L I S H E D O P I N I O N
PETERSON, Judge
In this pro se appeal, appellant challenges the district court’s dismissal of his action
for public nuisance, private nuisance, trespass, tortious interference with prospective
economic advantage, and quantum meruit. We affirm.

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FACTS
By amended compl aint, appellant John Moore alleged the following facts: In
November 2013, Moore engaged an asbestos-remediation contractor to remove a boiler
and pipe insulation from Moore’s mother’s home . The work required the contractor to
“walk right up against the opposing building,” which was owned by respondent Deborah
G. Fletcher. While the project was underway, Moore saw a worker “carrying large chunks
of cast iron” to a truck without any wrappin g, asked the worker if it should be wrapped,
and was told that a substance on the cast iron “was ‘just oil.’” When Moore went to inspect,
he discovered “chunks of oily, fibrous debris laid outside the containment along the path
to the truck,” thought the debris seemed to be “cellulose insulation like what he had
sampled himself from one of the pipes, prior to the abatement,” and was told that it was
“‘just dirt.’” Based on their own research, Moore and his mother “discovered that the . . .
contractors had been cutting corners” and were “spreading . . . hazardous material around
his home,” and , as a precautionary measure , he and his mother “ ceased operating power
equipment on the lawn.” Moore notified Fletcher about the “contamination” and asked her
“not t o operate any lawn care machinery or walk between the houses until the
contamination could be cleaned up,” which Fletcher initially agreed to do.
In late summer 2014, Moore hired a contractor “to excavate a thin layer of soil from
the front yard and along the north side of the walkway.” Because the contractor excavated
only a “6 inch margin from the walkway” and Moore thought that more remediation work
was necessary on Fletcher’s property, Moore reminded Fletcher’s lawn-care provider “not
to operate machinery between the houses.”

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In the summer of 2015, Moore “went to excavate the soil again ,” but Fletcher told
him “not to come near her house with any digging, citing a concern that there was some
jeopardy to her foundation.” Fletcher de signated an area that Moore could excavate, but
because it was not “substantially different” from the area excavated earlier, he “resign[ed]
the project.”
In spring 2016, Fletcher notified Moore’s mother that she would no longer agree to
refrain from operating machinery betwee n the properties, and Moore’s mother spotted
Fletcher “in the area in question, pulling weeds and shaking off the soil therefrom, likely
spreading what contamination remain[ed] from the abatement.” Moore then initiated this
action against Fletcher pro se, alleging claims of public nuisance, private nuisance,
trespass, tortious interference with prospective economic advantage, and quantum meruit.
Fletcher moved to dismiss for failure to state a claim and failure to join an
indispensable party. Following a hearing, the district court granted Fletcher’s motion. The
district court ruled that Moore lacked standing to raise the public-nuisance claim, failed to
allege actions constituting a private nuisance, did not plead a sufficient possessory interest
in the property to maintain a trespass action and otherwise failed to allege a prima facie
case of trespass, failed to allege a third -party relationsh ip as required for the tortious -
interference claim, and did not allege an agreement or acceptance of a benefit to support a
claim of quantum meruit. During the hearing, the district court also excluded affidavits as
outside the record. In this appeal, Moore argues that the district court erred in dismissing
his complaint for failure to state a claim and abused its discretion by refusing to permit him
to amend his complaint.

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D E C I S I O N
I.
Under Minn. R. Civ. P. 12.02(e), a party may, by motion, assert the defense of
“failure to state a claim upon which relief can be granted.” “When reviewing a dismissal
for failure to state a claim upon which relief can be granted, an appellate court must only
determine whether the complaint sets forth a legally suffi cient claim for relief.” Stead-
Bowers v. Langley, 636 N.W.2d 334, 338 (Minn. App. 2001), review denied (Minn. Feb.
19, 2002). “The standard of review is therefore de novo.” Bodah v. Lakeville Motor
Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003). Dismissal for failure to state a claim is
not permitted “if it is possible on any evidence which might be produced, consistent with
the pleader’s theory, to grant the relief demanded.” Martens v. Minn. Mining & Mfg. Co.,
616 N.W.2d 732, 739 -40 (Minn. 2000) (qu otation omitted). “The facts set forth in the
complaint must be accepted as true, and the plaintiff is entitled to have the benefit of all
favorable and reasonable inferences.” Stead-Bowers, 636 N.W.2d at 338.
Public nuisance
Moore alleges that Fletche r’s activity of “disturbing the area” constitutes a public
nuisance because “[w]hat contamination was left behind on [Fletcher]’s property continues
to present a risk to the public.” A person who “maintains or permits a condition which
unreasonably annoys, injures or endangers the safety, health, morals, comfort, or repose of
any considerable number of members of the public” is guilty of maintaining a public
nuisance. Minn. Stat. § 609.74 (1) (2016). A private person typically does not have the
right to assert a claim of public nuisance; rather, “[t]he public wrong must be redressed by

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a prosecution in the name of the state.” Hill v. Stokely -Van Camp, Inc., 260 Minn. 315,
320-21, 109 N.W.2d 749, 753 (1961) (quotation omitted). But a private person may bring
a cause of action for public nuisance if “the plaintiff has suffered some special or peculiar
damage not common to the general public, and in such cases only.” Id. at 321, 109 N.W.2d
at 753 (quotation omitted); see also North Star Legal Found. v. Hone ywell Project, 355
N.W.2d 186, 189 (Minn. App. 1984) (noting requirement of allegation of “special or
peculiar damage not common to the general public” in order to bring private action for
relief from public nuisance (quotation omitted)), review denied (Minn. Jan. 2, 1985).
Because Moore has not alleged that Fletcher caused him to suffer a special or peculiar
damage that was not common to the general public, he has failed to set forth a legally
sufficient public-nuisance claim.
Private nuisance
Moore alleges a claim of private nuisance b ased on the premise that “[w]hat
contamination remains on [Fletcher]’s property has been [and continues to be] spread onto
[Moore]’s property” and interferes with his ability to enjoy the property, and he has borne
the “expense of remediation.” The private-nuisance statute provides:
Anything which is injurious to health, or indecent or
offensive to the senses, or an obstruction to the free use of
property, so as to interfere with the comfortable enjoyment of
life or property, is a nuisance. An action may be brought by
any person whose property is injuriously affected or whose
personal enjoyment is lessened by the nuisance, and by the
judgment the nuisance may be enjo ined or abated, as well as
damages recovered.

Minn. Stat. § 561.01 (2016).

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The district court determined that Moore failed to allege any activity on Fletcher’s
part that amounts to a nuisance. We agree. A private nuisance requires interference with
another’s use of property. See Uland v. City of W insted, 570 F. Supp. 2d 1114, 1120 (D.
Minn. 2008) (stating that nuisance occurs “where a defendant intentionally interferes with
the plaintiff’s right to use and enjoy the property”). “[T]here must be some kind of conduct
causing the nuisance harm which is ‘wrongful.’ This wrongful conduct varies, and may at
times be characterized as intentional conduct, negligence, ultrahazardous activity, violation
of a statute or some other tortious activity.” Highview N. Apts. v. Ramsey County , 323
N.W.2d 65, 70 -71 (Minn. 1982) (citation omitted). Moore’s amended complaint alleges
no conduct that amounts to a nuisance. As the district court stated, “That Moore’s mother
observed Fletcher pulling weeds and shaking off dirt a year and a half after the alleged
contamination is too remote, too speculative, and too isolated to support a cause of action
for nuisance.”
Trespass
“Trespass encompasses any unlawful interference with one’s person, property, or
rights, and requires only two essential e lements: a rightful possession in the plaintiff and
unlawful entry upon such possession by the defendant.” Wendinger v. Forst Farms, Inc.,
662 N.W.2d 546, 550 (Minn. App. 2003) (quotation omitted), review denied (Minn. Aug.
5, 2003).
Moore has not claimed a legal interest in his mother’s property, although the record
suggests that he lives with his mother. He also has not claimed an unlawful entry onto the
property. “[T]respass is an invasion of the plaintiff’s right to exercise exclusive possession

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of the land and nuisance is an interference with the plaintiff’s use and enjoyment of the
land.” Fagerlie v. City of Willmar , 435 N.W.2d 641, 644 n.2 (Minn. App. 1989); see
Johnson v. Paynesville Farmers Union Coop Oil Co., 817 N.W.2d 693, 701 (Minn. 2012)
(stating that unlawful entry “must be done by means of some physical, tangible agency in
order to constitute a trespass” (quotation omitted)). Moore alleged that Fletcher “spread[]
what contamination remains on [her] property onto [ his] property,” but the only fact s he
alleged in support of this allegation are that Fletcher had lawn-care service in the area and
pulled and shook weeds, “likely spreading” remaining contaminants from the asbestos.
The alleged facts are insufficient to show an unlawful entry for purposes of asserting a
trespass claim.
Tortious interference with prospective economic advantage
Moore argues that Fletcher tortiously interfered with his prospective economic
advantage by deterring visits to his mother’s home by potential private music students. The
district court ruled that this claim is legally insufficient because Moore failed to identify a
third party with whom he had a “reasonable probability of a future economic relationship,”
which is an element of the claim. Gieseke ex rel. Diversi fied Water Diversion, Inc. v.
IDCA, Inc. , 844 N.W.2d 210, 2 21 (Minn. 2014). In Gieseke, the supreme court first
recognized the cause of action and set forth its elements, as follows:
1) The existence of a reasonable expectation of economic
advantage;
2) Defendant’s knowledge of that expectation of economic
advantage;
3) That defendant intentionally interfered with plaintiff’s
reasonable expectation of economic advantage, and the
intentional interference is either independently tortious or
in violation of a state or federal statute or regulation;

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4) That in the absence of the wrongful act of defendant, it is
reasonably probable that plaintiff would have realized his
economic advantage or benefit; and
5) That plaintiff sustained damages.

Id. at 219.
To demonstrate the first element, “a plaintiff must specifically identify a third party
with whom the plaintiff had a reasonable probability of a future economic relationship .”
Id. at 220-21. “[A] plaintiff’s projection of future business with unidentified customers,
without more, is insufficient as a matter of law.” Id. at 221-22.
Moore failed to identify any music student with whom he likely had a future
economic relationship. Moore also failed to allege facts that would establish that Fletcher
intentionally interfered with any reasonable expectation of economic advantage. Fletcher’s
alleged conduct of pulling weeds and mowing her lawn does not demonstrate any
interference with Moore’s business relationship with potential music students, much less
the wrongful or intentional interference contemplated by this tort. See id. at 218 -19
(requiring a showing that “the interference is intentional and independently tortious or
unlawful, rather than merely unfair”).
Quantum meruit
Quantum meruit is applied “only when failure to do so would result in unjust
enrichment.” Stemmer v. Estate of Sarazin, 362 N.W.2d 406, 408 (Minn. App. 1985).
The elements of an unjust enrichment claim are: (1) a benefit
conferred; (2) the defendant’s appreciation and knowing
acceptance of the benefit; and (3) the defendant’s acceptance
and retention of the bene fit under such circumstances that it
would be inequitable for him to retain it without paying for it.
A claim for unjust enrichment does not “lie simply because one
party benefits from the efforts or obligations of others, but

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instead it must be shown that a party was unjustly enriched in
the sense that the term ‘unjustly’ could mean illegally or
unlawfully.”

Dahl v. R.J. Reynolds Tobacco Co. , 742 N.W.2d 186, 195 -96 (Minn. App. 2007), review
denied (Minn. Jan. 20, 2009) (citation omitted) (quoting First Nat’l Bank of St. Paul v.
Ramier, 311 N.W.2d 502, 504 (Minn. 1981)).
Without commenting on whether Fletcher received a benefit or whether accepting a
benefit would have been inequitable, the district court ruled that Moore failed to show that
Fletcher know ingly accepted a benefit. The amended complaint alleges that Fletcher
objected to Moore’s remediation work, told him that she was not “concerned about . . .
asbestos,” and eventually told him “not to come near her house.” These allegations do not
show that Fletcher knowingly accepted a benefit, and, therefore, are inadequate to establish
grounds for an award in quantum meruit.
II.
Moore argues that the district court abused its discretion by refusing to allow him
to amend his complaint to cure deficien cies. The district court record does not include a
motion by Moore to amend his complaint. The record shows that Moore filed two
affidavits, signed by himself and his mother, on July 30, 2016. Most of the statements in
the affidavits do not correct defi ciencies in Moore’s c omplaint, with the exception of
Moore’s mother’s statement in her affidavit that, under a 2008 oral lease, Moore has the
right to “possess, use, and enjoy” her property. At the August 8, 2016 hearing on Fletcher’s
motion to dismiss, the district court told Moore that “[t]he record is closed with regard to
facts. It’s just what’s in your Complaint, no more, . . . no less.” The district court also

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noted that the existence and terms of the purported lease agreement between Moore and
his mother were “not in the record.”
After a motion is made to dismiss for failure to state a claim upon which relief can
be granted, Minn. R. Civ. P. 12.02 contemplates that if “matters outside the pleading are
presented to and not excluded by the court, the motion shall be treated as one for summary
judgment.” The district court record does not show that Moore moved to amend his
complaint or to supplement the record, and Moore apparently file d the affidavits just over
a week before the hearing on the motion to dismiss. Under these circumstances, the district
court did not err by limiting the scope and record of the hearing to the pending motion to
dismiss. See Tierney v. Arrowhead Concrete Works, Inc. , 791 N.W.2d 540, 543 (Minn.
App. 2010) (ruling that, when case was dismissed for failure to state a claim even though
plaintiff submitted affidavits of two expert witnesses, district court’s ruling on dismissal
motion without considering affidavits “implicitly excluded” affidavits, and only question
before appellate court was whether complaint set forth legally sufficient claim for relief),
review denied (Minn. Feb. 15, 2011); Brendsel v. Wright, 301 Minn. 175, 178, 221 N.W.2d
695, 696 -97 (1974) (stating that district court has discretion to allow amendment to
pleadings, and that prejudice to other party is “[a]n important consideration”). The district
court did not abuse its discretion by declining to allow Moore to amend his complaint.
Affirmed.