Scott G. Erickson, et al., Appellants,

This opinion will be unpublished and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
A17-0661

Scott G. Erickson, et al.,
Appellants,

vs.

Abby Science, Inc. d/b/a Quality Blending, Inc., et al.,
Respondents.

Filed January 2, 2018
Affirmed
Johnson, Judge

Anoka County District Court
File No. 02-CV-15-1850

Bryan R. Battina, Nathan R. Snyder, Trepanier MacGillis Battina P.A., Minneapolis,
Minnesota (for appellants)

Steven J. Lodge, Lodge Law Office, Anoka, Minnesota (for respondents)

Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Klaphake,
Judge.
U N P U B L I S H E D O P I N I O N
JOHNSON, Judge
A company leased a commercial building for approximately five years before the
landlords terminated the lease. Nearly six years later, the landlords sued, alleging that the

Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant
to Minn. Const. art. VI, § 10.
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tenant caused damage to the property during its tenancy. The district court grant ed
summary judgment to the former tenant on the ground that the landlords ’ action is barred
by the statute of limitations because the landlords were aware of the facts supporting their
claims more than six years before they commenced this action . We concl ude that the
former tenant is not equitably estopped from asserting a statute-of-limitations defense and
that the landlords’ claims are time-barred. Therefore, we affirm.
FACTS
Scott G. Erickson and Laura W. Erickson own an 11,000-square-foot building in the
city of Ham Lake. In May 2004, the Ericksons leased the building to Abby Science, Inc.,
pursuant to a 15-page lease agreement. The term of the lease was three years, beginning
July 1, 2004, with a monthly rent of $4,140. Gregg Boster, the president of Abby Science,
signed the lease agreement on behalf of the company and provided a personal guaranty of
all covenants contained in the lease agreement.
The provisions of the lease agreement that are most pertinent to this appeal are the
following:
8. REPAIRS AND TERMINAL CONDITION:
[1] Tenant shall, at Tenant’s sole cost and expense, keep
in good order, condition, and repair the Demised Premises and
every part thereof, including, without limiting the generality of
the foregoing, all heating and air-conditioning units, plumbing,
electrical and lighting fixtures and equipment, fixtures, interior
wall and ceilings, floors, windows, doors, plate glass and sky -
lights located within the Demised Premises, but excluding all
other structural repairs. [2] This is to include an obligation to
contract for preventative maintenance to heating and air -
conditioning equipment. [3] On the last day of the term hereof,
or any earlier termination thereof, Tenant shall surrender the
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Demised Premises to Landlord in good condition, with only
ordinary wear expected. [4] Tenant shall also pay all costs
incurred in replacing any plumbing or lighting fixtures which
may have been removed from the Demised Premises by
Tenant. [5] Also, Tenant shall not move, remove or otherwise
disturb or make changes in the heating equipment and shall be
liable to Landlord for any damage to such equipment.
[6] Thirty days prior to the end of the term of this Lease,
Landlord and Tenant, or their representatives, shall inspect the
Demised Premises and settle any difference in accordance with
the terms of this Lease, and arrange for termination of utilities
and adjustment of Tenant’s pro rata share of Operating
Expenses, as set forth in Paragraph 34 hereof.

. . . .
17. DEFAULTS:
Should Tenant breach any of the terms of this
Lease, . . . Landlord shall give Tenant notice of such breach
and Tenant shall commence to cure such breach within ten (10)
days following the giving of such notice and shall dil igently
proceed with and complete the curing of such breach within a
reasonable time.

If Tenant . . . breaches any of the other covenants or
obligations of this Lease and fails to cure such breach after
notice as herein above provided, Landlord shall have the option
to terminate this Lease or to re-enter and take possession of the
Demised Premises without terminating this Lease. If Landlord
elects to re-enter and take possession without terminating this
Lease, Landlord may relet the Demised Premises or an y part
thereof upon such terms and conditions as Landlord in its sole
discretion shall deem advisable. . . . .

. . . .
43. WELL AND SEPTIC SYSTEM:
Building is hooked up to a private well and septic
system located on the property, which Landlord certifies is
currently working properly and conforms to current building
codes. Tenant shall not permit any hazardous wastes or
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chemicals to enter the septic system and shall be responsible
for any cleanup expense, if found in violation of the Lease
Agreement.

Abby Science used the leased premises to mix and bottle chemicals that it sold to
its customers. Shortly after Abby Science took possession of the premises , the Ericksons
expressed concerns that Abby Science was violating the terms of the lease agreement. On
October 13, 2004, Scott Erickson sent a letter to Boster in which he raised various issues.
The lease was renewed in July 2007. Disputes arose again in 2008. The Ericksons
and Abby Science exchanged correspondence between January and July of 2008 . On
August 26, 2008 , an attorney representing the Ericksons sent a letter to an attorney
representing Abby Science to give formal notice that the Ericksons considered Abby
Science to be in default of its lease obligations. The letter enumerated 12 issues and stated
that, under paragraph 17 of the lease agreement, Abby Science had ten days to cure the
alleged breaches of the lease agreement . Two days later, Abby Science’s attorney sent a
letter to the Ericksons ’ attorney in response to each of the 12 issues. Abby Science ’s
attorney referred to two issues as “terminal conditions” that could be addressed at the end
of the tenancy.
In February 2009, the Ericksons retained a consultant to perform an environmental
study of the property . On February 23, 2009, t he consultant delivered a report, which
concluded that Abby Science had used and disposed of hazardous chemicals at the
property, in violation of paragraph 43 of the lease agreement . On February 27, 2009, an
attorney representing the Ericksons sent a letter to Boster to give notice of the termination
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of Abby Science’s tenancy, effective April 30, 2009. Abby Science vacated the premises
on April 30, 2009.
On February 26, 2015, approximately five years and ten months after Abby Science
vacated the premises, the Ericksons commenced this action against Abby Science and
Boster. The complaint asserts two causes of action : breach of contract and fraud ulent
misrepresentation. The complaint alleges that Abby Science and Boster breached the lease
agreement in 17 ways:
[1] failing to pay rent for the entire lease term; [2] polluting the
property; [3] damaging the lawn; [4] processing and utilizing
prohibited hazardous chemicals which damaged the Building
and surrounding property; [5] damaging and removing custom
cabinetry; [6] damage to the Building; [7] removing items from
the shop area; [8] bulldozing class 5 material from the back lot
and into valuable trees; [ 9] damaging large sections of the
parking lot; [10 ] removing high grade o ffice carpet and
replacing it with low grade carpet; [11] damage to the electrical
systems; [12] removing the phone system; [13 ] disabling and
removing fire monitoring system; [1 4] damaging th e audio
sound and PA system; [15 ] not maintain ing the furnace;
[16] removing plumbing systems and lights; and
[17] destroying cubicle partitions.

In essence, the parties and the district court construed the complaint to allege 1 7 breach-
of-contract claims; for ease of reference, we will use the same convention. The complaint
also alleges that Abby Science and Boster committed fraud by making “numerous
misrepresentations concerning the safety of the chemicals being used at the building, that
they were not polluting the building or the surrounding property and that no chemicals
would be or were being discharged into the septic system.”
6
In June 2015, Abby Science moved for dismissal or for summary judgment on the
ground that the Ericksons’ claims are barred by the applicable six -year statute of
limitations. In res ponse, the Ericksons argued that Abby Science’s limitations defense is
barred by the doctrine of equitable estoppel and that their claims did not accrue until Abby
Science vacated the premises on April 30, 2009.
The district court granted Abby Science’s motion in part and denied it in part. The
district court rejected the Ericksons’ equitable -estoppel argument on the ground that, if
Abby Science made any promises to repair damage caused during its tenancy, the
Ericksons’ reliance on those promises was not reasonable. The district court reasoned that
six of the Ericksons’ breach-of-contract claims (specifically, claims 1, 6, 11, 12, 13, and
14) are not time-barred because the Ericksons first became aware of the facts underlying
those claims when Abby Science vacated the premises, which was less than six years before
the Ericksons commenced the action. (Those claims subsequently were resolved by a
settlement agreement and, thus, are not at issue in this appeal. ) But t he district court
reasoned that the Ericksons’ other breach-of-contract claims are time-barred because they
accrued “when [the Ericksons] observed the breaches and first notified [ Abby Science] of
these alleged breaches ,” which occurred before Abby Science vacated the premises and
more than six years before the Ericksons commenced this action with respect to 11 of its
breach-of-contract claims and its fraud claim . And the district court reasoned that the
Ericksons’ fraud claim is time-barred because it accrued no later than when they received
the consultant’s report. The Ericksons appeal.
7
D E C I S I O N
The Ericksons argue that the district court erred by granting Abby Science’s motion.
The district court noted that Abby Science moved both to dismiss under rule 12 or for
summary judgment under rule 56.02. See Minn. R. Civ. P. 12.02(e), 56.02. Ordinarily, if
a defendant moves to dismiss under rule 12.02(e), a district court may consider documents
other than the pleadings only if the documents are attached to a pleading or are referenced
in a pleading. See, e.g., Hardin County Sav. Bank v. Housing & Redevelopment Auth. of
Brainerd, 821 N.W.2d 184, 192 (Minn. 2012). But a motion to dismiss pursuant to rule
12.02 may be converted to a motion for summary judgment:
If . . . matters outside the pleadings are presented to and not
excluded by the court, the motion shall be treated as one for
summary judgment and disposed of as provided for in Rule 56,
and all parties shall be given reasonable opportunity to present
all material made pertinent to such a motion by Rule 56.

Minn. R. Civ. P. 12.03; see also Minn. R. Civ. P. 12.02(e). At oral argument in this court,
counsel for the parties agreed that the district court treated Abby Science ’s motion to
dismiss as a motion for summary judgment. We agree and, thus, will treat the motion as a
motion for summary judgment.
A district court must grant a motion for summary judgment if the evidence
demonstrates “that there is no genuine issue as to any material fact and that either party is
entitled to a judg ment as a matter of law. ” Minn. R. Civ. P. 56.03. A genuine issue of
material fact exists if a rational trier of fact, considering the record as a whole, could find
for the non -moving party. Frieler v. Carlson Mktg. Grp., Inc. , 751 N.W.2d 558, 564
(Minn. 2008) (quotation omitted). This court applies a de novo standard of review to the
8
district court’s legal conclusions on summary judgment and views the evidence in the light
most favorable to the non -moving party. RAM Mut. Ins. Co. v. Rohde , 820 N.W.2d 1, 6
(Minn. 2012) (quotations omitted); Day Masonry v. Independent Sch. Dist. No. 347, 781
N.W.2d 321, 325 (Minn. 2010).
I. Breach-of-Contract Claim
A. Equitable Estoppel
The Ericksons argue that the district court erred by ruling that Abby Science is not
equitably estopped from asserting a statute-of-limitations defense.
The equitable estoppel doctrine “is intended to prevent a party from taking
unconscionable advantage of his own wrong by asserting his strict legal rights.” Northern
Petrochemical Co. v. U.S. Fire Ins. Co., 277 N.W.2d 408, 410 (Minn. 1979). The doctrine
may be invoked to preclude a party from asserting a statute -of-limitations defense. Id. at
410-11. More specifically, the doctrine may be invoked to preclude a party from asserting
a statute-of-limitations defense after that party has promised to make repairs to a building.
Hydra-Mac, Inc. v. Onan Corp., 450 N.W.2d 913, 919-20 (Minn. 1990). “A party seeking
to invoke the doctrine of equitable estoppel has the burden of pr oving three elements:
(1) that promises or inducements were made; (2) that it reasonably relied upon the
promises; and, (3) that it will be harmed if estoppel is not applied.” Id. at 919. Equitable
estoppel “is an equitable doctrine addressed to the disc retion of the court.” Northern
Petrochemical, 277 N.W.2d at 410. Accordingly, we apply an abuse-of-discretion standard
of review to a district court’s application of the doctrine. See id. at 410-11.
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In this case, the district court refrained from determ ining whether the Ericksons
could satisfy the first requirement of the doctrine. The district court stated that Abby
Science “may have made promises to Plaintiffs about making various repairs including
completing repairs by termination of their tenancy.” The district court determined that the
Ericksons could not satisfy the second requirement of the doctrine. The district court stated
that “Plaintiffs . . . cannot prove their reliance on Defendants ’ promises was reasonable.”
The district court recited the supreme court’s statement that the “[i]nvocation of equitable
estoppel may be denied when the party asserting it has failed to exercise due diligence in
filing its action after the grounds giving rise to the claimed estoppel have ceased to exist.”
See Hydra-Mac, 450 N.W.2d at 919. The district court noted that Abby Science “vacated
in 2009 without making the repairs Plaintiffs claim they were promised” yet “Plaintiffs did
not commence this action until 5 years and 10 months after Defendants ’ tenancy ended.”
For that reason, the district court concluded, “It is not reasonable for Plaintiffs ’ counsel to
rely on Defense counsel’s legal opinion that the alleged breaches were terminal and did not
have to be remedied until the end of the lease.”
The district court’s analysis of the Ericksons’ equitable -estoppel argument is
consistent with the applicable caselaw. The diligence of the party invoking the doctrine is
relevant to the second requirement, which asks whether the “actions or inactions” of the
party invoking equitable estoppel “relating to [the] timely assertion of its claims [are]
reasonable when viewed in the light of all existing circumstances.” Id. In Singelman v.
St. Francis Med ical Center, 777 N.W.2d 540 ( Minn. App. 2010), this cour t affirmed a
district court’s entry of summary judgment because the plaintiff’s asserted grounds for
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equitable estoppel “would have disappeared, at the latest, a month or two after” they first
appeared. Id. at 541-42, 544. Similarly, in The Rivers v. Ric hard Schwartz/Neil Weber
Inc., 459 N.W.2d 166 (Minn. App. 1990), review denied (Minn. Oct. 25, 1990), this court
affirmed a district court’s entry of summary judgment on the issue of equitable estoppel
because, even though a defendant had given assurances that repairs would be made , the
defendant did not actually make any repairs during the five-year period before the action
was commenced. Id. at 170. The facts of this case are remarkably similar to Singelman
and The Rivers. The Ericksons claim to have relied on promises made by Abby Science to
repair damage to the building, but those promises were made during Abby Science ’s
tenancy and proved to be unreliable when Abby Science vacated the premises on April 30,
2009. Yet the Ericksons waited five years and ten months before commencing this action.
In their appellate briefs, the Ericksons dwell on their evidence that Abby Science
made promises to repair damage to the property and their evidence that they relied on those
promises. Their argument misses the point of the district court’s ruling. The district court
did not determine whether, during Abby Science’s tenancy, the Ericksons were reasonable
in relying on Abby Science’s alleged promises. Rather, the district court determined that,
after Abby Science’s tenancy, the Ericksons no longer were reasonable in relying on any
promises Abby Science may have made. The Ericksons’ failure to take prompt action after
Abby Science’s tenancy, which concluded on April 30, 2009, is pertinent because, as stated
above, the “invocation of equitable estoppel may be denied when the party asserting it has
failed to exercise due diligence in filing its action after the grounds giving rise to the
claimed estoppel have ceased to exist.” See Hydra-Mac, 450 N.W.2d at 919. The district
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court appropriately determined that the Ericksons could not have reasonably relied on any
prior promises made by Abby Science after it vacated the premises and that the Ericksons
were not diligent in pursuing their claims after Abby Science vacated the premises. T he
district court did not abuse its discretion in so reasoning, which means that the Ericksons
cannot satisfy the second requirement of the doctrine of equitable estoppel.1
Thus, the district court did not err by concluding that Abby Science is not equitably
estopped from asserting a statute -of-limitations defense with respect to the 11 breach-of-
contract claims at issue in this appeal.
B. Statute of Limitations
The Ericksons argue that the district court erred by ruling that 11 of their breach-of-
contract claims are barred by the applicable statute of limitations.
A breach-of-contract claim is governed by a six-year statute of limitations . Minn.
Stat. § 541.05, subd. 1(1), (6) (2016). The statute of limitations begins to run when “the
cause of action accrues.” Minn. Stat. § 541.01 (2016). “A cause of action accrues when
all of the elements of the action have occurred, such that the cause of action could be
brought and would survive a motion to dismiss for failure to state a claim.” Park Nicollet
Clinic v. Hamann , 808 N.W.2d 828, 832 (Minn. 2011). The elements of a breach -of-

1We note that the Ericksons did not as sert an equitable -tolling argument to the
district court and have not made such an argument to this court. Accordingly, the question
is not whether the statute of limitations was tolled for part of the six-year period before the
Ericksons commenced this a ction. See Buller v. A.O. Smith Harvestore Prods., Inc. , 518
N.W.2d 537, 542 (Minn. 1994); Hydra-Mac, 450 N.W.2d at 918-19; Wild v. Rarig , 302
Minn. 419, 450-51, 234 N.W.2d 775, 795 (1975). Rather, under the doctrine of equitable
estoppel, the question i s whether the defendant may or may not assert a statute -of-
limitations defense. See Hydra-Mac, 450 N.W.2d at 919-20.
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contract claim are as follows: “(1) the formation of a contract, (2) the performance of
conditions precedent by the plaintiff, and (3) the breach of the contract by the defendant.”
Thomas B. Olson & Assocs. v. Leffert, Jay & Polglaze, P.A., 756 N.W.2d 907, 918 (Minn.
App. 2008), review denied (Minn. Jan. 20, 2009).
In this case, the district court reasoned that the 11 breach-of-contract claims at issue
accrued when the Ericksons became aware of the facts underlying those alleged breaches
in 2004, 2008, and early 2009. The district court’s reasoning is supported by evidence that
the Ericksons or their attorney sent multiple letters to Abby Science between 2004 and
2009, asserting that Abby Science was in violation of the lease. The district court stated
that the Ericksons were aware of the facts underlying all 11 of the breach-of-contract claims
at issue by not later than February 23, 2009, which is more than six years before the
Ericksons commenced this action. If the analysis is limited in that way, the resolution of
the Ericksons’ argument would be clear: their breach-of-contract claim accrued more than
six years before they commenced this action on February 26, 2015.
But the Ericksons contend that the district court’s analysis is flawed because some
of their breach-of-contract claims did not accrue, or did not fully accrue, until after Abby
Science vacated the property. For this contention, the Ericksons rely on the third sentence
of paragraph 8 of the lease agreement, which states, “On the last day of the term hereof, or
any earlier termination thereof, Tena nt shall surrender the Demised Premises to Landlord
in good condition, with only ordinary wear expected.” The Ericksons contend that this
provision does not impose any obligations on Abby Science until the end of the tenancy
and, thus, cannot be breached until such time. Under the Ericksons’ theory, they may rely
13
on more than one provision of the lease agreement in asserting a breach-of-contract claim
based on a particular alleged harm, and a breach -of-contract claim based on a particular
alleged harm does not accrue until all relevant contractual provisions are triggered.
The Ericksons do not cite any caselaw to support their contention. We are unaware
of any Minnesota caselaw that speaks directly to the issue. Our research has revealed only
two opinions from other jurisdictions that might support the Ericksons’ contention, but it
is unclear in each opinion whether the same issue was expressly raised and disputed by the
parties. See Highland Indus. Park, Inc. v. BEI Defense Sys. Co., 357 F.3d 794, 798-99 (8th
Cir. 2004); Ace Sec. Corp. v. DB Structured Prods ., Inc., 36 N.E.3d 623, 628 -30 (N.Y.
2015).
Notwithstanding the absence of Minnesota caselaw directly on point, we believe
that the supreme court’s caselaw applying the statute of limitations sets forth principles
that are inconsistent with the Ericksons’ contention. For example, in Hamann, which
concerned a breach-of-contract claim, the supreme court focused on “the wrongful conduct
underlying the breach of contract claim.” 808 N.W.2d at 833. The supreme court resolved
the dispute in that appeal by focusing on the date on which the breach -of-contract claim
“would have survived a motion to dismiss.” Id. In Portlance v. Golden Valley State Bank,
405 N.W.2d 240 (Minn. 1987) , which also concerned a breach -of-contract claim, the
supreme court noted that “the statutory limitations period cannot be manipulated by the
relief sought.” Id. at 242. Likewise, in Weavewood, Inc. v. S & P Home Investments, LLC,
821 N.W.2d 576 (Minn. 2012), a case in which the plaintiff sought a declaratory judgment,
the supreme court stated that “we cannot allow plaintiffs to make a mockery of statutes of
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limitations by the simple expedient of creative labeling.” Id. at 580 (alterations and internal
quotations omitted) (quoting International Ass’n of Machinists & Aerospace Workers v.
Tennessee Valley Auth., 108 F.3d 6 58, 668 (6 th Cir. 1997)). Rather, the supreme court
stated, “the applicability of statutes of limitations depends on the nature of the wrong
alleged in the complaint, not on the nature of the relief sought.” Id. at 580.
In light of these principles, the district court did not err by concluding that the
Ericksons’ breach-of-contract claims accrued not later than February 23, 2009, which was
more than six years before the Ericksons commenced this action. The district court’s
analysis appropriately focused on the dates of “the wrongful conduct underlying the breach
of contract claim ,” of which the Ericksons were aware before Abby Science vacated the
premises. See Hamann, 808 N.W.2d at 833. By February 23, 2015, the Ericksons’ breach-
of-contract claims, which are based on multiple violations of the lease agreement, “would
have survived a motion to dismiss.” See id. To allow the Ericksons to restart the limitations
period based on the obligation in the third sentence of paragraph 8 would violate the
supreme court’s acknowledgement that “the statutory limitations period cannot be
manipulated by the relief sought.” See Portlance, 405 N.W.2d at 242. In addition, to allow
the Ericksons to restart the limitations period on April 30, 2009, based on facts of which
they previously were aware, would risk “mak[ing] a mockery of statutes of limitations by
the simple expedient of creative labeling.” See Weavewood, 821 N.W.2d at 580 (alterations
and internal quotations omitted). Implementing these principles ensures that we do not
“undermine the fundamental purpo ses of statutes of limitations —namely, ‘to spare the
courts from litigation of stale cl aims, and the citizen from being put to his defense after
15
memories have faded, witnesses have died or disappeared, and evidence has been lost.’”
Id. (quoting Chase Sec . Corp. v. Donaldson , 325 U.S. 304, 314, 65 S. Ct. 1137, 1142
(1945)).
Thus, the district court did not err by determining that the Ericksons’ breach-of-
contract claims accrued more than six years before they commenced this action.
C. Waiver
The Ericksons argue that Abby Science waived its statute-of-limitations defense.
The Ericksons assert that Abby Science’s attorney waived the defense in communications
with the Ericksons’ attorney. The Ericksons did not make this argument to the district
court in their opposition to Abby Science’s motion. Thus, the argument has been forfeited,
and we will not consider it for the first time on appeal. See Thiele v. Stich, 425 N.W.2d
580, 582 (Minn. 1988); Doe 175 v. Columbia Heights Sch. Dist., ISD No. 13, 842 N.W.2d
38, 43 (Minn. App. 2014).
II. Fraud Claim
A. Equitable Estoppel
The Ericksons argue that the district court erred by ruling that Abby Science is not
equitably estopped from asserting a statute-of-limitations defense to their fraud claim. The
district court applied the doctrine of equitable estoppel to the Ericksons’ breach-of-contract
claims and their fraud claim in the same manner. The Ericksons do not argue that the
district court erred by analyzing the issue in that manner. The Ericksons also do not
contend that the analysis should be different for their fraud cla im than for their breach-of-
contract claims. In fact, the Ericksons make essentially the same argument with respect to
16
each claim. The Ericksons’ equitable-estoppel argument concerning their fraud claim fails
for the same reason that their equitable -estoppel argument concerning their breach -of-
contract claims fail. Thus, the district court did not err by concluding that Abby Science
is not equitably estopped from asserting a statute-of-limitations defense with respect to the
Ericksons’ fraud claim.
B. Statute of Limitations
The Ericksons argue that the district court erred by ruling that their fraud claim is
barred by the applicable statute of limitations.
A fraud claim is governed by a six-year statute of limitations. Minn. Stat. § 541.05,
subd. 1 (6). “The 6-year period begins to run when the facts constituting fraud were
discovered or, by reasonable diligence, should have been discovered.” Toombs v. Daniels,
361 N.W.2d 801, 809 (Minn. 1985). The elements of a fraud claim are as follows:
(1) there was a false representation by a party of a past or
existing material fact susceptible of knowledge; (2) made with
knowledge of the falsity of the representation or made as of the
party’s own knowledge without knowing whether it was true
or false; (3) with the intention to induce another to act in
reliance thereon; (4) that the representation caused the other
party to act in reliance thereon; and (5) that the party suffer[ed]
pecuniary damage as a result of the reliance.

Hoyt Props., Inc. v. Production Res . Group, L.L.C., 736 N.W.2d 313, 318 (Minn. 2007)
(quotation omitted) (alteration in original); see also Martens v. Minnesota Mining & Mfg.
Co., 616 N.W.2d 732, 747 (Minn. 2000) (articulating similar seven -factor test); Davis v.
Re-Trac Mfg. Corp. , 276 Minn . 116, 117, 149 N.W.2d 37, 38 -39 (1967) (articulating
similar eleven-factor test).
17
In this case , the district court determined that the Ericksons discovered Abby
Science’s alleged fraud as early as October 13, 2004 , when the Ericksons first expressed
concerns that Abby Science was using hazardous chemicals on the premises, but not later
than February 23, 2009 , when the Ericksons received the consultant’s report, which
confirmed their belief that Abby Science was using hazardous chemicals on the premise s.
Even the latter of those two dates is more than six years before the Ericksons commenced
this action, which would make the Ericksons’ action untimely.
The Ericksons contend, however, that their fraud claim did not accrue until after
Abby Science vacated the premises on April 30, 2009. They contend that, during the
tenancy, Abby Science stated “that they would repair the property” but that, after the
tenancy, the Ericksons observed that Abby Science had not done so. But according to the
complaint, the alleged misrepresentation that is the basis of the Ericksons’ fraud claim was
made “[p]rior to and during the lease” and was “relied on” by the Ericksons “in deciding
to enter into the lease and in deciding not to terminate the tenancy,” which implies that the
Ericksons ceased relying on the alleged misrepresentations when they actually terminated
the lease on February 27, 2009. The fraudulent nature of the alleged misrepresentations by
Abby Science either was actually “discovered or, by reasonable diligence, should have
been discovered,” by not later than February 23, 2009 , when the Ericksons received the
consultant’s report. See Toombs, 361 N.W.2d at 809 . The Ericksons have not cited any
caselaw for the proposition that a fraud claim does not accrue until the allegedly fraudulent
party fails to cure the alleged fraud. Our caselaw suggests otherwise. See Ames & Fischer
Co. v. McDonald , 798 N.W.2d 557 , 563-64 (Minn. App. 2011) (concluding that
18
professional malpractice claim accrued when accountant filed tax return s, not when
amended returns could have been but were not filed), review denied (Minn. Jul. 19, 2011).
Thus, the district court did not err by determining that the Ericksons’ fraud claim
accrued more than six years before they commenced this action.
In sum, the district court did not err by granting Abby Science’s motion for summary
judgment with respect to 11 of the Ericksons’ breach -of-contract claims and their fraud
claim.
Affirmed.