Streambend Properties II, LLC, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1488

Streambend Properties II, LLC, et al.,
Appellants,

vs.

Ivy Tower Minneapolis LLC, et al.
Respondents,

Wischermann Holdings, LLC, et al.,
Respondents,

Commonwealth Land Title Insurance Company, LLC,
Respondent.

Filed June 3, 2019
Affirmed; motion denied
Schellhas, Judge

Hennepin County District Court
File No. 27-CV-17-18938

Rachel K. Nelson, Law Offices of Rachel K. Nelson, PLLC, St. Paul, Minnesota (for
appellants)

Kerry A. Trapp, Borgelt, Powell, Peterson & Frauen, S.C., Oakdale, Minnesota (for
respondent Commonwealth Land Title Insurance Company)

Thomas W. Pahl, Jamae A. Pennings, Foley & Mansfield, PLLP, Minneapolis, Minnesota
(for respondents Ivy Tower Minneapolis, LLC, et al.)

D. Charles Mac Donald, Faegre Baker Daniels, LLP, Minneapolis, Minnesota (for
respondents Wischermann Holdings, LLC, et al.)

2
Considered and decided by Slieter, Presiding Judge; Worke, Judge; and Schellhas,
Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellants challenge the rule 12.02(e) dismissal of their claims related to their
condominium purchase agreements, and move to strike portions of respondents’ briefs. We
affirm and deny the motion to strike.
FACTS
This appeal arises out of the Ivy Tower condominium development in Minneapolis.
On October 23, 2004, on behalf of appellant Streambend Properties II, LLC (Streambend
II), appellant Jerald Hammann 1 entered into a purchase agreement with respondent Ivy
Tower Minneapolis, LLC (Ivy Tower), for a to -be-constructed condominium unit in Ivy
Tower. On October 24, on behalf of appellant Streambend Properties VIII, LLC,
(Streambend VIII), Hammann’s sister entered into a similar purchase agreement with Ivy
Tower for a to-be-constructed Ivy Tower condominium. But Hammann did not file articles
of organization for Streambend II until October 29, 2004, and he did not file articles of
organization for Streambend VIII until November 2, 2004. (Hammann, Streambend II, and
Streambend VIII are collectively referred to as “appellants.”) Appellants paid earnest
money on each purchase agreement for deposit in a trust account maintained by respondent

1 Hammann is a frequent litigator in Minnesota state and federal courts . A Minnesota
district court has previously determined Hammann to be a “frivolous litigant.” Hammann
v. Donald Deyo, No. A08-2185, 2010 WL 154212, at *8 (Minn. App. Jan. 19, 2010), review
denied (Minn. Mar. 30, 2010).

3
Commonwealth Land Title Insurance Company, LLC (Commonwealth) to cover
construction c osts. In November 2007, through amended purchase agreements and the
payment of additional earnest money, appellants requested construction upgrades.
As alleged in their complaint in paragraphs 199, 201, 203, by letters on March 13,
April 6, and April 16, 2 009, appellants requested return of their earnest money .2 In
response, Ivy Tower cancelled appellants’ purchase agreements on April 23, 2009, by
service of two separate notices of declaratory cancellation under Minn. Stat. § 559.217,
subd. 4 (cancellation notices). Ivy Tower stated in the cancellation notices that appellants
defaulted under the terms of specific provisions in the purchase agreements, including, but
not limited to, the following defaults: (1) “Buyer [s] never intended to reside at the
property” in violation of paragraph 17; (2) “During Year 2007, Buyer signed several
upgrade addendums . . . intentionally causing Seller damages” in violation of paragraph 5;
and (3) “Buyer[s] never applied for financing” in violation of paragraph 4. The cancellation
notices provided that unless appellants, within the 15 -day notice period, secured a court
order suspending cancellation, cancellation of the purchase agreements would be final at
the end of the notice period. The cancellation notices also warned appellants that upon final
cancellation, under Minn. Stat. § 559.217, they would “lose all earnest money . . . paid on
the purchase agreement” and “may lose [their] right to assert any claims for defenses that
[they] might have.”

2 None of these letters is included in an attachment to appellants’ complaint.

4
During their 15 -day notice period, a ppellants neither sought nor obtained a court
order suspending cancellation of their purchase agreements . Instead, in October 2010,
appellants sued various parties in federal district court, including many of the respondents
in this action. I n the 11 -count complaint, appellants sought the return of earnest mone y,
claimed damages under the Interstate Land Sales Full Disclosure Act (I LSA) and the
Minnesota Common Interest Ownership Act (MCIOA), and asserted claims for fraud,
declaratory judgment , wrongful cancellation, breach of contract, unjust enrichment,
conversion of trust -account funds, negligent misrepresentation, and breach of fiduciary
duty. The federal court dismissed appellants’ I LSA claims for failing to plead the
requirements of an IS LA claim, d eclined to exercise supplemental jurisdiction over
appellants’ state law claims , and dismissed the remaining state -law claims without
prejudice. Streambend Props. II, LLC v. Ivy Tower Minneapolis, LLC , Civ. No. 10-4257
(JNE/AJB), 2011 WL 1447579, at *1–2 (D. Minn. Apr. 14, 2011). The Eighth Circuit Court
of Appeals reversed the dismissal of appellants’ ILSA claims and remanded for “further
proceedings.” Streambend Props. II, LLC v. Ivy Tower Minneapolis, LLC, 451 Fed. App’x
627, 627–28 (8th Cir. 2012).
On remand, appellants filed a first and second amended complaint. Streambend
Props. II, LLC v. Ivy Tower Minneapolis, LLC , Civ. No. 10-4257 (JNE/AJB), 2013 WL
3465277, at *1 (D. Minn. July 10, 2013). The second amended complaint alleged the same
claims, including violations of I LSA and MCIOA, as well as claims for wrongful
cancellation, breach of contract, unjust enrichment, conversion, breach of fiduciary duty,
and negligent misrepresentation. Id. Appellants later sought t o add respondent s

5
Wischermann Partners, Inc. and Paul Wischermann as defendants under the same theories.
Streambend Props. II, LLC v. Ivy Tower Minneapolis, 781 F.3d 1003, 1009 (8th Cir. 2015).
The federal district court concluded that this amendment was “futile” because appellants
had “not adequately pleaded any theory under which Wischermann Partners, Inc. or Paul
Wischermann could be liable merely by their association with respondent Wischermann
Holdings, LLC.”3 Id. at 1015. The court a lso struck the ILSA claims with prejudice for
failure to plead fraud with the required particularity, and the court dismissed the state-law
claims without prejudice, declining to exercise jurisdiction over them. Id. at 1009–10. The
court affirmed a magistrate’s denial of a ppellants’ motions for leave to file a third and
fourth amended complaint. Id. at 1009.
On March 30, 2015, the Eight h Circuit Court of Appeals affirmed the dismissal of
appellants’ ILSA claims and the federal district court’s denial of appellants’ motion for
leave to add Wischermann as parties. Id. at 1017. In the meantime, the Eighth Circuit Court
of Appeals summarily affirmed, in an unpublished order, a federal district court’s denial of
Hammann’s motion to join or take the place of the Streambend II as plaintiff. Streambend
Props. II, LLC v. Ivy Tower Minneapolis, LLC , 701 Fed. App’x 544, 544 (8th Cir. 2017).
The Eighth Circuit Court of Appeals also affirmed the denial of subsequent motions by
Hammann for substitution of parties and relief from judgment. Id. at 545. And appellants
filed three petitions for a writ of certiorari, which were denied in 2015, 2016, and 2018,
respectively. Streambend Props. II, LLC v. Ivy Tower Minneapolis, LLC , 136 S. Ct. 287

3 Wischermann Partners, Inc. and Paul Wischermann will hereinafter be collectively
referred to as “Wischermann.”

6
(2015); Streambend Props. II, LLC v. Ivy Tower Minneapolis, LLC, 137 S. Ct 262 (2016);
Streambend Props. II, LLC v. Ivy Tower Minneapolis, LLC, 139 S. Ct. 126 (2018).
In December 2017, appellants filed in state court, a ten-count, 68-page complaint,
plus 100 pages of attached exhibits, against Ivy Tower, respondents Ivy Tower
Development, LLC; Moody Group, LLC; Goben Enterprises, LP; Jeffrey Laux; Gary
Benson, Wischermann, and Commonwealth, seeking return of their earnest mon ey and
alleging damages under the MCIOA. Appellants also sought damages for wrongful
cancellation, breach of contract, unjust enrichment, a declaratory judgment, conversion,
violation of Minn. Stat. § 82.75, negligent misrepresentation, and breach of fiduciary duty.
Respondents moved to dismiss all counts of ap pellants’ complaint under Minn. R. Civ. P.
12.02(e). The district court concluded that all counts of appellants’ complaint “are either
barred by claim and issue preclusion, time barred, or fail to state a claim upon which relief
can be granted ,” and that appellants failed to plead their claim of negligent
misrepresentation with particularity under Minn. R. Civ. P. 9.02. The court granted
respondents’ motions , dismissed all of appellants’ claims with prejudice , and denied
appellants leave to file a motion for reconsideration.
This appeal follows.
D E C I S I O N
I. Appellants’ motion to strike
Shortly before oral arguments, appellants filed a motion to strike “portions” of Ivy
Tower’s and Wischermann’s briefs under rule Min n. R. Civ. App. P. 128.02 , subd. 1 (c),
which provides that the statement of the case and the facts contained in the formal brief

7
“must be stated fairly, with complete candor, and as concisely as possible.” In their motion,
appellants dispute the “fairness” and “candor” of respondents’ char acterization of the
letters sent by appellants in March and April 2009, which appellants now claim in their
motion to strike cancelled the purchase agreements. But the rules of appellate procedure
provide that “[n]o further briefs may be filed except with leave of the appellate court.”
Minn. R. Civ. App. P. 128.02, subd. 5. As asserted in the response by Wischermann,
“[a]ppellants’ motion is argument masquerading as a motion to strike.” Because appellants’
motion is essentially additional briefing without leave of this court, we deny the motion to
strike.
II. Dismissal of appellants’ claims under Minn. R. Civ. P. 12.02(e)
Appellants challenge the district court’s dismissal of all of their claims under Minn.
R. Civ. P. 12.02(e) against (A) “Developers,” and (B) Commonwealth .4 A district court
may dismiss a complaint when a plaintiff fails to state a claim upon which relief can be
granted. Minn. R. Civ. P. 12.02(e). On appeal from such a dismissal, this court reviews de
novo whether the complaint sets forth a sufficient claim for relief. Walsh v. U.S. Bank,
N.A., 851 N.W.2d 598, 606 (Minn. 2014). We accept the facts alleged in the complaint as
true and draw inferences in favor of the nonmoving party. Id. And “a court may consider
documents referenced in a complaint without converting the motion to dismiss to one for
summary judgment.” N. States Power Co. v. Minn. Metro. Council , 684 N.W.2d 485, 490
(Minn. 2004) (emphasis omitted).

4 Appellants’ complaint refers to all of the respondents , except Commonwealth , as
“Developers,” and we do also.

8
A. Claims against Developers
Appellants asserted claims against some or all of the Developers for (1) violation of
the MCIOA; (2) wrongful cancellation; (3) breach of contract; (4) unjust enrichment ;
(5) declaratory judgment ; (6) conversion; and (7) negligent misrepresentation. These
claims against Developers stem from the purchase agreements that were entered into
between Streambend II and VIII and Ivy Tower “on behalf of” the other Developers. But
Minnesota law does not recognize the de facto corporation doctrine. See Stone v. Je tmar
Props., LLC , 733 N.W.2d 480, 485 (Minn. App. 2007) (recognizing that the de facto
corporation doctrine is not “viable in the context of business corporations”). T he district
court therefore determined that “[b]ecause the Streambend entities were not yet formed at
the time the purchase agreements were signed, the agreements are void and unenforceable
and any claims for damages flowing from those agreements are without merit.”
Appellants argue that the district court’s decision is erroneous because , after their
formation, Streambend II and VIII adopted the purchase agreements through various
amendments to the purchase agreem ents, including upgrade options and payment of
additional earnest money. Indeed, “a voidable contract can be ratified or confirmed.” Logan
v. Panuska, 293 N.W.2d 359, 362 (Minn. 1980). But here, assuming, without deciding, that
Streambend II and VIII ratified the purchase agreements through their amendments , the
record clearly shows that Ivy Tower later cancelled the purchase agreements under Minn.
Stat. § 559.217, subd. 4.

9
Minnesota Statute section 559.217, subdivision 4 (2018), provides:
(a) If a n unfulfilled condition exists after the date
specified for fulfillment in the terms of the purchase agreement
for the conveyance of residential real property, which by the
terms of the purchase agreement cancels the purchase
agreement, either the purchase r or the seller may confirm the
cancellation by serving upon the other party to the purchase
agreement and any third party that is holding earnest money
under the purchase agreement a notice:

(1) specifying the residential real property that is the
subject of the purchase agreement, including the legal
description;

(2) specifying the purchase agreement by date and the
names of parties, and the unfulfilled condition; and

(3) stating that the purchase agreement has been
cancelled.

. . . .

(c) The cancellation of the purchase agreement is
complete, unless within 15 days after the service of the notice
upon the other party to the purchase agreement, the party upon
whom the notice was served secures from a court an order
suspending the cancellation.

Subdivision 7(a) of section 559.217 provides that:
After a cancellation under . . . subdivision 4, the
purchase agreement is void and of no further force or effect,
and, except as provided in subdivision 2, any earnest money
held under the purchase agreement must be distributed to, and
become the sole property of, the party completing the
cancellation of the purchase agreement.

Minn. Stat. § 559.217, subd. 7(a) (2018).
Our supreme court has long recognized the finality of statutory cancellation. See
Olson v. N. Pac. Ry. Co. , 148 N.W. 67, 68 (Minn. 1914) (holding that contract vendee

10
attempting to sue f or damages caused by vendor’ s misrepresentations “has no contract
upon which to predicate damages” after cancellation of the contract for deed has occurred).
Once statutory notice has been served and cancellation effected, all rights under a contract
for deed are terminated. In re Butler, 552 N.W.2d 226, 230 (Minn. 1996); West v. Walker, 231 N.W. 826, 827 (Minn. 1930); Olson, 148 N.W. at 68. This rule, known as the Olson
rule, “applies to cancelled purchase agreements.” 25 Eileen M. Roberts, Minnesota
Practice, § 6.21 (2018-2019 ed. 2018); see Romain v. Pebble Creek Partners, 310 N.W.2d
118, 122 –23 (Minn. 1981) (holding that finality of statutory cancellation applies to
purchase agreements except where purchase agreement was not finally binding on both
parties in all its essential terms; agreement was nullified pursuant to its own terms because
parties failed to reach agreement on security for note upon which completion of contract
was contingent). But the Olson rule is not applicable to claims against a party who is not a
party to a purchase agreement. See Doerr v. Clayson, 375 N.W.2d 488, 491 (Minn. 1985)
(noting that “the cancellation of the contract for deed had no effect on the real estate agents
because they were not parties to the contract”).
Here, Commonwealth was not a party to the purchase agreement s with appellants,
and appellants have not asserted anything to the contrary. As such, the Olson rule is not
applicable to Commonwealth. But appellants have asserted in their complaint that Ivy
Tower entered into the purchase agreements “on behalf of” the other Developers.
Consequently, appellants’ complaint treats the Developers as par ties to the purchase
agreements and, for purposes of our rule 12.02(e) analysis, we are required to accept the
allegations in appellants’ complaint as true. See Bodah v. Lakeville Motors Express, Inc. ,

11
663 N.W.2d 550, 553 (Minn. 2003) (stating that in reviewing a rule 12.02 motion to
dismiss, the reviewing court accepts the facts alleged in the complaint as true). Because, in
their complaint, appellants treat the Developers as parties to the purchase agreement, and
because we are required to accept the allegations in appellants’ complaint as true, we apply
the Olson rule to the Developers, which is defined in footnote 4 of the complaint to exclude
Commonwealth. But see Doerr , 375 N.W.2d at 491 (noting that “the cancellation of the
contract for deed had no effect on the real estate agents because they were not parties to
the contract”).
As noted above, “[o]n behalf of” Developers, Ivy Tower served appellants with
notices of cancellation of their purchase agreements under Minn. Stat. § 559.217, subd. 4.
Appellants failed to seek an order within the 15-day notice period to suspend cancellation,
consequently, the purchase agreements were deemed cancelled by law at the end of the
notice period. T he earnest monies therefore became the “sole property” of Developers
under Minn. Stat. § 559.217, subd. 7(a), as “the party completing the cancellation of the
purchase agreement.” Because the purchase agreements were cancelled, appellants’ claims
arising from the purchase agreements were extinguished. See Olson, 148 N.W. at 69
(holding that statutory termination precluded any recovery in an action arising out of the
contract because statutory termination terminates the contract itself). This included
appellants’ claim against Developers for negligent misrepresentation. See West , 231
N.W.2d at 827 (stating that after cancellation of a contract for deed, the vendee cannot
bring an action for fraudulent misrepresentation on the contract against the vendor).

12
Characterizing their letters of March 13, April 6 and 16, 2009, as statutory notices
of cancellation, a ppellants argue that the district court erred by dismissing their claims
because the court failed to “consider Streambend II’s and VIII’s statutory Notices of
Cancellation.” In other words, appellants contend that their letters requesting the return of
their earnest money constituted notices of cancellation to Ivy Tower under Minn. Stat.
§ 559.217, subd. 2 . But appellants did not specifically make this argument to the district
court, and the court did not treat appellants’ letters as statutory notices of cancellation.
Appellants’ argument that their letters constitute statutory notices of cancellation therefore
is not properly before us.5 See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating
that appellate courts generally do not consider issues that were not presented to and decided
by the district court). Moreover, even if the subject letters statutorily cancelled the purchase
agreements, appellants ’ claims against Developers are precluded by the Olson rule. See
Olson, 148 N.W. at 69 (holding that statutory termination precluded any recovery in action
arising out of contract because statutory termination terminates contract).
We acknowledge that the statutory cancellation process is “one of the harshest
forfeitures known to American law,” but it is “enforced routinely in Minnesota.” 25 Eileen
M. Roberts, Minnesota Practice § 6:16 (2018 -2019 ed. 2018). And although Olson

5 We note that appellants raised this issue in their request for reconsideration under Minn.
R. Gen. Prac. 115.11. But the comment to rule 115.11 states that “[m]otions for
reconsideration will not be allowed to expand or supplement the record on appeal.” Minn.
R. Gen. Prac. 115.11 1997 comm. cmt. ( internal quotation marks omitted). Therefore,
raising the issue in the request for reconsideration does not preserve the argument for
appeal.

13
suggested that a cancel led purchaser may maintain a fraud action for “money had and
received,” for rescission, 148 N.W. at 69, Minnesota courts have “[w]ith one exception,
. . . managed to avoid finding a situation that justifi es application of the exception, ” 25
Minnesota Practice § 6:21. The only decision allowing postcancellation rescission based
upon fraud involved a “widow with no business training or experience and unfamiliar with
real estate values,” who had traded her home to a real -estate broker as a down payment.
Gable v. Niles Holding Co., 296 N.W. 525, 526 (Minn. 1941). The supreme court
determined that the case was “not like” Olson, and allowed the case to proceed as an unjust-
enrichment claim. Id. at 527–28.
As Minnesota Practice recognized, Gable “cried for equity, not law, and the
[supreme] court responded.” 25 Minnesota Practice § 6:21. In contrast, this case does not
cry out for equity. Unlike the widow in Gable, Hammann admits that he is a licensed real-
estate broker who has extensive business t raining and experience and is clearly very
familiar with real -estate value. The unjust -enrichment exception to the Olson rule
discussed in Gable is therefore not applicable here, and all of appellants’ claims against
Developers are precluded by t he Olson rule. See Nowicki v. Benson Props. , 402 N.W.2d
205, 206 –08 (Minn. App. 1987) ( holding that district court properly granted summary
judgment, dismissing plaintiff’s claims for breach -of-contract, fraudulent
misrepresentation, and rescission, following cancellation of a purchase agreement, because
all of plaintiff’s claims depend “on the existence of a contract” and “[i]t is longstanding
law in Minnesota that once statutory notice has been served and cancellation effected, all
rights under a contract for deed are terminated”).

14
Moreover, we con clude that even if appellants’ unjust -enrichment claim against
Developers was not precluded by the Olson rule, the complaint fails to state a claim for
unjust enrichment upon which relief can be granted. To establish an unjust -enrichment
claim, the claiman t must show that the defendant has knowingly received or obtained
something of value for which the defendant “in equity and good conscience” should pay.
Klass v. Twin City Fed. Sav. & Loan Ass’n , 190 N.W. 2d 493, 494 –95 (Minn. 1971).
“Unjust enrichment claims do not lie simply because one party benefits from the efforts or
obligations of others, but instead it must be shown that a party was unjustly enriched in the
sense that the term unjustly could mean illegally or unlawfully.” ServiceMaster of St. Cloud
v. GAB Bus. Servs., Inc. , 544 N.W.2d 302, 306 (Minn. 1996) (quotation omitted). “It is
well settled in Minnesota that one may not seek a remedy in equity when there is an
adequate remedy at law.” Southtown Plumbing, Inc. v. Har-Ned Lumber Co., 493 N.W.2d
137, 140 (Minn. App. 1992); see U.S. Fire Ins. Co. v. Minn . State Zoological Bd. , 307
N.W.2d 490, 497 (Minn. 1981) (stating that if equitable relief were granted, statutory
restrictions would be circumvented).
Appellants argue that the district court erred b y dismissing their unjust-enrichment
claim because Developers’ use of the escrow mon ey was both “unlawful and immoral.”
We disagree. The court aptly found that appellants “had an adequate remedy at law: seek
a 15-day suspension of the declaratory cancellation under Minn. Stat. § 559.217, subd.
4(c).” Because appellants had an adequate remedy available at law, which they failed to
pursue, appellants’ unjust -enrichment claim fails. We conclude that the court did not err
by dismissing appellants’ claims against Developers under rule 12.02(e).

15
Finally, although our above analysis demonstrates that the district court properly
dismissed appellants’ claims against all Developers under rule 12.02(e), we also note that
the court properly dismissed appellants’ claims against Wischermann as barred by res
judicata. The doctrine of res judicata seeks to avoid wasteful litigation so “that a party may
not be twice vexed for the same cause.” Breaker v. Bemidji State Univ., 899 N.W.2d 515,
518–19 (Minn. App. 2017) (quotation omitted). Res judicata bars a subsequent claim if:
(1) the earlier claim involved the same set of factual circumstances; (2) the earlier claim
involved the same parties; (3) there was a final judgment on the merits; and (4) the estopped
party had a full and fair opportunity to litigate the matter. Rucker v. Schmidt, 794 N.W.2d
114, 117 (Minn. 2011). Res judicata applies to claims actually litigated and to claims that
could have been litigated in the prior action. Brown-Wilbert, Inc. v. Copeland Buhl & Co.,
P.L.L.P., 732 N.W.2d 209, 220 (Minn. 2007) . Res judicata should not be rigidly applied.
Hauschildt v. Beckingham, 686 N.W.2d 829, 837 (Minn. 2004) . Instead, the court should
consider whether applying the doctrine against a party would work an injustice. Id.
Here, t he district court determined that appellants’ claims against Wischermann
were barred by res judicata because the Eighth Circuit Court of Appeals affirmed the
decision of the federal district court that denied as “futile” appellants’ r equest to add the
Wischermann respondents as defendants. See Streambend Props ., 781 F.3d at 1 015
(affirming federal district court’s denial to add Wischermann as defendants because
appellants “have not adequately pleaded any theory under which [the Wischer mann
respondents] could be liable” (quotation omitted)). We agree that all of the elements of res
judicata are satisfied. Both claims clearly involve the same set of facts and circumstances,

16
and both cases involve the same parties. Moreover, judgment on th e matter was final, as
the Eighth Circuit affirmed the federal district court’s denial of the request to add
Wischermann as defendants. And appellants clearly have had full and fair opportunity to
litigate the matter. Under these circumstances, we conclude that the court properly
determined that appellants’ claims against Wischermann are barred by res judicata. See
Breaker, 899 N.W.2d at 518–19 (stating that doctrine of res judicata seeks to avoid wasteful
litigation so “that a party may not be twice vexed for the same cause”).
B. Claims against Commonwealth
Appellants also brought several claims against Commonwealth, inclu ding for
(1) violation of the MCIOA; (2 ) declaratory judgment; (3) conversion; (4) violation of
Minn. Stat. § 82.75; (5 ) negligent misrepresentation; and (6) breach of fiduciary duty .
Appellants contend that the district court erred by dismissing these claims under rule
12.02(e). We disagree.
1. MCIOA claims
MCIOA “is based upon the Uniform Common Interest Ownership Act (UCIOA)
(1982) and codifies the rights of a homeowners’ association in a common interest
community to bring causes of action against the declarant for engineering and construction
defects.” 650 N. Main Ass’n v. Frauenshuh, Inc. , 885 N.W.2d 478, 486 –87 (Minn. App.
2016), review denied (Minn. Nov. 23, 2016). In dismissing appellants’ MCIOA claims
against Commonwealth, the district court determined that Commonwealth had “no duty to
[appellants] under the MCIOA” because Commonwealth “is not an affiliate of the
declarant” and there “was no contract between Commonwealth and [appellants].”

17
Appellants argue that the district court’s determination is erroneous because, as a
title agent, Commonwealth owed a duty to appellants under Minn. Stat. § 515B.4-109. But
that statute provides:
All earnest money paid or deposits made in connection
with the purchase or reservation of units from or with a
declarant shall be deposited in an escrow account controlled
jointly by the declarant and the purchaser, or controlled by a
licensed t itle insur er or agent thereof, . . . [and] held in the
escrow account until . . . delivered for payment of construction
costs pursuant to a written agreement between the declarant
and the purchaser.

Minn. Stat. § 515B.4-109 (2018). As Commonwealth points out, the only duty of the title
agent under that statute “is to comply with the terms of a written agreement.”
Here, the written agreement between appellants and the declarant, Ivy Tower, which
was attached as Exhibit C to appellants’ complaint, specifically states:
In consideration of Seller’s Agreement on this day to
sell a certain Unit in Ivy Residence to Buyer, together with a
Parking Easement in the parking ramp to be constructed
beneath the Condominium building, in order to lower Seller’s
costs of f inancing the construction of the project, and as
permitted by Minnesota Statutes § 515B.4 -109, Buyer agrees
that, upon request by Seller, all earnest money previously paid
shall be released to Seller and used for the payment of
construction costs.

The pl ain language of Exhibit C specifically allows Commonwealth to release
escrow money for construction costs upon the Seller’s request. There is no additional step
requiring appellants to agree to release the funds. If appellants wanted such an additional
step, they should have included it in the written agreement. And the written agreement
between appellants and Ivy Tower that allows escrow money to be released for construction

18
costs upon Ivy Tower’s request is consistent with Minn. Stat. § 515B.4-109, which allows
a seller to use funds for construction costs as long as there is a written agreement between
the parties.
Appellants argue that the language in Exhibit C is “reasonably susceptible to more
than one interpretation,” and that its “more natural interpretation” is that “upon request by
Seller to Buyer,” all earnest money previ ously paid shall be released to Seller for
construction costs. But we will not read such a requirement into a contract when the
language, on its face, does not contain such an obli gation. See Telex Corp. v. Data Prods.
Corp., 135 N.W.2d 681, 686–87 (Minn. 1965) (stating that “where the written language of
an instrument applied to the subject is clear, whether it be a statute, constitution, or contract,
it is neither necessary nor proper in construing it to go beyond the wording of the instrument
itself”). Appellants’ argument here reads into the contract language that does not appear on
the face of Exhibit C. Moreover, such a requirement that Sellers obtain permission from
the Buyers to use earnest monies for construction costs is unnecessary based on the plain
language of the instrument itself. Exhibit C specifically states that “[i]n consideration of
Seller’s agreement . . . Buyer agrees.” To add another step that Seller first reque st from
Buyer to use earnest monies for construction costs ignores the plain language of the
agreement that Buyer has already agreed to the use of earnest monies for construction costs.
Thus, appellants’ argument that Exhibit C is ambiguous is without merit.
Appellants further contend that Commonwealth violated the MCIOA because
Commonwealth had a duty to act in good faith, which included notifying appellants that
monies would be removed and later that they had been removed from the escrow account.

19
To support their claim, appellants cite Minn. Stat. § 515B.1 -113 (2018), which provides
that “[e]very contract or duty governed by this chapter imposes an obligation of good faith
in its performance or enforcement.” But as the district court found, Minn. Stat. § 515B.1-
113 does not apply because there was no contract between appellants and Commonwealth.
Moreover, based upon Exhibit C, the only duty imposed upon Commonwealth was to
release the escrow monies for construction costs upon the request of Ivy Tower. The court
therefore properly dismissed appellants’ MCIOA claims against Commonwealth.
2. Declaratory-judgment claim
Appellants sought a n unspecified declaratory judgment against Commonwealth
under Minnesota Statutes chapter 555 , which permits “[a]ny person . . . whose rights,
status, or other legal relations are affected by a statute” to “have determined any question
of construction or validity arising under the . . . statute . . . and obtain a declaration of rights,
status, or other legal relations thereunde r.” Minn. Stat. § 555.02 (2018) . But a court does
not have jurisdiction over a declaratory-judgment claim unless there is a justiciable
controversy, which exists if the claim “(1) involves definite and concrete assertions of right
that emanate from a legal source, (2) involves a genuine conflict in tangible interests
between parties with adverse interests, and (3) is capable of specific resolution by judgment
rather than presenting hypothetical facts that would form an advisory opinion.” Onvoy, Inc.
v. ALLETE, Inc., 736 N.W.2d 611, 617–18 (Minn. 2007).
Here, the district court determined that “a party seeking a declaratory judgment must
have an independent, underlying cause of action based on a common law or statutory
right,” but that “[b]ecause the court has dismissed with prejudice all of [appellant]s’ claims

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in this case, no such underlying cause of action exists, and [appellant ]s’ claim for
declaratory judgment is dismissed as well.” Because the court properly dismissed
appellants’ underlying causes of action, it did not err by dismissing appellants’ declaratory-
judgment claim.
3. Conversion claim
Appellants also challenge the dismissal of their conversion claim. Conversion is “an
act of willful interference with the personal property of another, done, without lawful
justification, by which any person entitled thereto is deprived of use and possession.”
Christensen v. Milbank Ins. Co. , 658 N.W.2d 580, 585 (Minn. 2003) (quotation marks
omitted). Recently, this court provided a thorough analysis about whether money, in its
intangible form, constitutes property for conversion purposes. TCI Bus. Capital Inc. v. Five
Star Am. Die Casting, LLC , 890 N.W.2d 423, 428 –30 (Minn. App. 2017). This court
reasoned that “the premise that money in an inta ngible form i s property . . . is without
precedent in Minnesota law.” Id. at 428. A conversion claim “is viable with respect to
money only if the money is in a tangible form (such as a particular roll of coins or a
particular stack of bills) and is kept separate from other money.” Id. at 429.
Here, appellants’ complaint alleges that their earnest mon ey and upgrade deposits
were intermingled in the Commonwealth trust account with earnest mone y and upgrade
deposits for “various parties pursuant to purchase agreements for units” in the Ivy Hotel
and Tower Development. Because this case involves only money in an intangible form,
appellants’ claim fails as a matter of law under TCI. The district court therefore did not err
by dismissing appellants’ conversion claim.

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4. Claim under Minn. Stat. § 82.75 (2018)
In Count VII of their complaint, appellants allege violations of Minn. Stat. § 82.75,
but the statute does not create a private cause of action. Semrad v. Edina Realty, Inc., 493
N.W.2d 528, 532 (Minn. 1992). Although the legislature was aware of the method by which
it could create a private right of action, section 82.75 only grants enforcement powers to
the commissioner of commerce. Id. Moreover, the penalty provision of the statute makes a
violation a gross misdemean or but contains no reference to civil liability. Minn. Stat.
§ 82.83 (2018). Instead, any civil actions contemplated by the statute are limited to claims
made by licensed brokers seeking compensation and unpaid commissions. Minn. Stat.
§ 82.85 (2018). The district court dismissed appellants ’ claim under Minn. Stat. § 82.75
because the statute does not create a private cause of action and because appellants’
complaint does not assert claims under Minn. Stat. § 82.85. Appellants present no argument
explaining how or why the court’s decision is erroneous. Accordingly, we conclude that
the court did not err by dismissing appellants’ claim under Minn. Stat. § 82.75.
5. Negligent-misrepresentation claim
Appellants also challenge the district court’s dismissal of their negligent -
misrepresentation claim against Commonwealth. To establish negligent misrepresentation,
a plaintiff must demonstrate that a duty of care existed, the defendant supplied false
information to the pl aintiff, the plaintiff justifiably relied on the information, and the
defendant failed to exercise reasonable care in communicating the information. Williams
v. Smith, 820 N.W.2d 807, 815 (Minn. 2012).

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Here, as the district court determined, appellants are unable to establish a duty owed
to them by Commonwealth. As discussed above, MCIOA does not apply to
Commonwealth because Commonwealth and appellants had no contract. And, as discussed
above, Minn. Stat. § 82.75 is not available to support a private cause of action. Finally,
appellants fail to establish a common -law duty owed to them by Commonwealth. The
district court therefore did not err by dismissing appellants’ negligen t-misrepresentation
claim against Commonwealth. See M.H. v. Caritas Family Servs. , 488 N.W.2d 282, 288–
89 (Minn. 1992) (stating that omission is actionable as negligent misrepresentation, but
such a claim is actionable only if a duty to disclose exists); see also Smith v. Woodwind
Homes, Inc., 605 N.W.2d 418, 424 (Minn. App. 2000) (stating that “[a]n essential element
of negligent misrepresentation is that the alleged misrepresenter owes a duty of care to the
person to whom they are providing information”).
6. Breach-of-fiduciary-duty claim
Appellants also challenge the dismissal of their breach -of-fiduciary-duty claim
against Commonwealth. To prevail on such a claim, appellants must prove four elements:
duty, breach, causation, and damages. TCI Bus. Capital, Inc., 890 N.W.2d at 434. But, as
we concluded above, Commonwealth owed no duty to appellants, and they cite no
published Minnesota caselaw supporting a contrary conclusion. Accordingly, appellants
are unable to establish that the district court erred by dismissing their breach-of-fiduciary-
duty claim against Commonwealth.

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III. Constitutional right to a jury trial
“The right of trial by jury shall remain inviolate, and shall extend to all cases without
regard to the amount in controversy.” Minn. Const. art. 1, § 4. The right to a trial by jury
is accommodated by the rules of civil procedure, which provide, “ [i]n actions for the
recovery of money only, or of specific real property or personal property, the issues of fact
shall be tried by a jury, u nless a jury trial is waived . . . .” Minn. R. Civ. P. 38.01. “This
rule defines the scope of the right to a jury trial in Minnesota, but it does not enlarge or
diminish the historical right to a jury trial guaranteed by the Minnesota Constitution.”
Olson v. Synergistic Techs. Bus. Sys., Inc., 628 N.W.2d 142, 153 (Minn. 2001).
Appellants argue that by granting respondents’ motions to dismiss, the district court
denied them their constitutional right to have a jury decide the case on the merits. To
support their claim, appellants argue at length that jury trials are the foundation of this
nation’s constitution, and they cite statistics showing that jury trials in civil cases are
sparse. But none of appellants’ assertions demonstrate s that the district court improperly
denied them their right to a jury trial. To the contrary, by dismissing appellants’ claims
under rule 12.02(e), the court did not violate appellants’ right to a jury trial because
appellants’ no longer had pending claims on which a jury could make findings. See Onvoy,
Inc., 736 N.W.2d at 617 (stating that constitutional jury -trial right in civil suit protects
jury’s findings—and right to make findings—on all facts material to legal claim).

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IV. Alleged violations of due process and equal protection
Appellants argue that the district court denied them their constitutional right to due
process and equal protection. But appellants fail to establish how the court denied their
due-process or equal-protection rights. Moreover, the court did not consider these issues,
and appellate courts generally do not consider issues that were not presented to and decided
by the district court. Thiele, 425 N.W.2d at 582. Appellants’ due -process and equal -
protection claims therefore are not properly before this court.
Affirmed; motion denied.