Daniel Ashbach, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-0771

Daniel Ashbach,
Appellant,

vs.

Warren Peterson, et al.,
Respondents.

Filed February 12, 2021
Affirmed
Cochran, Judge

Ramsey County District Court
File No. 62-CV-18-194

Gary Bodelson, Minneapolis, Minnesota (for appellant)

Richard J. Thomas, Chad J. Hintz, Burke & Thomas, PLLP, Arden Hills, Minnesota (for
respondents)

Considered and decided by Cochran, Presiding Judge; Jesson, Judge; and
Slieter, Judge.
NONPRECEDENTIAL OPINION
COCHRAN, Judge
Appellant brought legal-malpractice and re lated claims against respondents arising
out of respondents’ legal representation in relation to a family business. Appellant
challenges the district court’s grant of su mmary judgment in favor of respondents.
Appellant asserts that the district court erred when it determined that he lacked standing to

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bring his claims, that his claims were also time-barred, and that he did not demonstrate
“but-for” causation on his malpractice claim. Appellant also challenges the district court’s
denial of his own motion for partial summar y judgment. Because we conclude that
appellant lacked standing to bring some of hi s claims and that his remaining claims were
time-barred, we affirm.
FACTS
This case arises out of wo rk performed by respondent Warren Peterson, an attorney,
for business entities formed by appellant Daniel Ashbach and his family . At all relevant
times, respondent Peterson worked for respon dent PFB Law (collectively respondents).
The following summarizes the undisputed facts.
Appellant has two siblings, one of whom is Gerald Ashb ach. Following the death
of their father, the Ashbach siblings formed two business entities intended to protect the
family assets from estate ta xes when their mother died. In approximately 1997, the
Ashbach siblings and their mo ther formed a limited partnership, the Ashbach Family
Limited Partnership (AFLP), which was funded with family assets. A year later, the
Ashbach siblings formed a Minnesota corporation named Ashbach Enterprises, Inc. (AEI).
AEI became the general partner of AFLP, and the Ashbach siblings were limited partners.
Gerald managed AEI and its assets and, th rough AEI, also managed much of AFLP’s
activities and assets. Peterson advised the As hbachs on the formation of the business
entities and acted as the attorney for both AFLP and AEI. Following the formation of AEI,
the Ashbach siblings formed an employee stoc k ownership plan (ESOP), and all stock in
AEI was transferred to the ESOP so that the ESOP became AEI’s sole shareholder. The

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Ashbach siblings were the thr ee participants in the ESOP a nd appellant held a one-third
interest. Gerald managed the activities and assets of the ESOP.
A central activity of the Ashbach business entities was to develop and sell lots in a
real-estate development in Colorado. The land was originally purchased by AFLP but was
subsequently transferred to AEI. Gerald wa nted 40 acres of the Colorado property for
himself. In 2002, Gerald conveyed 40 acres of the property from AEI to himself, without
payment or consideration. AE I did not authorize the conveya nce. Gerald then obtained
mortgages that created a lien on the 40-acre property and began to live on the property. In
2003, an accountant told Gerald that he would suffer tax co nsequences for conveying the
property to himself. This prompted Ge rald to convey the 40-acre property, now
encumbered by th e mortgages, back to AEI. Appe llant had no knowledge of either
conveyance. He asserts that Peterson advi sed Gerald that he could make the 2002
conveyance.
Later, following a dispute between appellant and Gerald, Gerald agreed to purchase
the 40-acre property. The parties agreed, in an April 2005 Memorandum of Understanding
(MOU), that Gerald would pay $333,333 for the property, plus 5.6% interest running from
May 1999. The parties also agreed that Gerald would pay the entire purchase price for the
property by May 2007 and that title would only transfer to Gerald once the full price was
paid. Also as part of the MOU, appellant ag reed to purchase from AFLP its interest in a
resort in Minnesota for $305,000. Appellant asserts that Peterson represented each of the
Ashbach siblings in the ag reement and drafted all documents associated with the
agreement, including the MOU.

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Despite the MOU, in July 2006, Gerald again conveyed title to the 40-acre property
to himself without authorization or payment. He did so through a conveyance document
that falsely stated that he had fully paid the purchase price to AE I. Gerald then built a
home for himself on the property and obtained another mortgage on the property, which he
used to finance a personal business project. AEI’s records continued to list the 40-acre
property as a corporate asset. Appellant asserts that Peterson also advised Gerald that he
could make this conveyance to himself.
In 2005, the Ashbach siblings’ mother di ed. Respondents asse rt that, under the
mother’s will, appellant elected to take cert ain real estate. Res pondents contend that
appellant’s choice to take that real estate indebted him to his siblings because the value of
the property exceeded appellant’s share of his mother’s estate.
AFLP was terminated in approximatel y 2009, and its remaining assets were
distributed to the partners. Appellant’s distribution totaled $107,758. AEI was dissolved
and its affairs wound up between December 2012 and April 2014. Gerald had still not paid
any amount for the 40-acre property. In December 2012, Peterson prepared a promissory
note that he backdated to July 10, 2006, which deferred payment of the purchase price for
the 40-acre property from the previously agreed-upon May 2007 date to December 2018.
The promissory note was then assigned to the Ashbach siblings. At the time of the
liquidation of AEI, respondent Peterson informed appellant and his siblings that the
promissory note was the only remaining asset of the corporation. This surprised appellant,
who believed he would receive a substantial amount of money from AEI’s liquidation.

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In 2014, Gerald sold the 40- acre property. Appellant states that the sale price was
$2.9 million.
Appellant sued Gerald in 2015 for breaches of fiduciary duty and the duty of good
faith and fair dealing, alleging that Gerald had failed to disclose and provide records and
accountings of AFLP’s and AEI’ s assets, liabilities, and investments. After a trial, the
district court found that Gerald had breached his fiduciary duty and his duty of good faith
and fair dealing to appellant and awarde d appellant compensato ry damages for the
wrongful conveyance of the 40-acre property.
Appellant then commenced this action in December 2017 against Peterson and his
law firm alleging various clai ms, contained in ten counts, related to Peterson’s alleged
involvement in Gerald’s conveyance of and failure to pay for the 40-acre property and
related to the management of the Ashbach entities and appellant’s distributions from those
entities. The complaint included claims of legal malprac tice, breach of fiduciary duty,
fraudulent misrepresentation, aiding and abe tting the tortious conduct of another, and
aiding and abetting a breach of fiduciary duty. Appellant asserted the claims as an
individual, rather than raising them in a derivative action to enforce a right of the Ashbach
business entities. Respondents moved for summary judgment on all ten counts, and
appellant moved for partial summary judgment on Counts IV and IX (claims alleging
aiding and abetting the tortious conduct of another). The district court granted respondents’
motion for summary judgment on all ten count s and denied appellant’s motion for partial
summary judgment. The court concluded that (1) appellant lacked standing to personally
raise all of the claims because the claims ar e properly brought only in a derivative suit,

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(2) regardless, all of the claims were barre d by the applicable statute of limitations, and
(3) aspects of Counts I-V related to the a llegedly fraudulent promissory note failed as a
matter of law because appellant failed to show “but-for” causation. This appeal follows.
DECISION
Appellant argues that the district court erred by granting respondents’ motion for
summary judgment on all counts on the basis that he lacked standing to bring each claim,
that all claims were time-barred, and that he did not meet his burden to establish “but-for”
causation on his claims concerning the allege dly fraudulent promissory note. He further
argues that the district court erred by denying his motion for partial summary judgment on
Counts IV and IX. We address each of appe llant’s arguments in turn and organize our
discussion based on the claims raised under Counts I-V and those raised under Counts
VI-X.
Summary judgment “is appropriate when th ere is no genuine issue of material fact
and a party is entitled to judgme nt as a matter of law.” Henson v. Uptown Drink, LLC ,
922 N.W.2d 185, 189-90 (Minn. 2019) (quota tion omitted). Appellate courts review
a grant of summary judgment de novo. Montemayor v. Sebright Prods., Inc. ,
898 N.W.2d 623, 628 (Minn. 2017). “When conducting this review, we view the evidence
in the light most favorable to the nonmoving party.” Henson, 922 N.W.2d at 190 (quotation
omitted). To survive su mmary judgment, the nonmo ving party must “extract specific,
admissible facts from the record that demonstrate that a genui ne issue of material fact
exists.” Beecroft v. Deutsche Bank Nat’l Tr. Co. , 798 N.W.2d 78, 82 (Minn. App. 2011)
(quotation omitted), review denied (Minn. July 19, 2011). “A genuine issue of fact exists

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when reasonable minds can draw different c onclusions from the evid ence presented.”
328 Barry Ave., LLC v. Nolan Props. Grp., LLC, 871 N.W.2d 745, 751 (Minn. 2015). “A
fact is material if its resolution wi ll affect the outcome of a case.” Rochester City Lines,
Co. v. City of Rochester, 868 N.W.2d 655, 661 (Minn. 20 15) (quotation omitted). “[W]e
may affirm a grant of summary judgment if it can be sustained on any grounds.”
Doe v. Archdiocese of St. Paul, 817 N.W.2d 150, 163 (Minn. 2012).
I. The district court did not err by gr anting respondents’ motion for summary
judgment on Counts I-V.

The first five counts of appellant’s complaint are based upon allegations concerning
the 40-acre property in Colorado. These count s alleged that respondents engaged in the
following: (I) attorney malpra ctice; (II) fraudulent misrep resentation and failure to
disclose; (III) breach of fiduciary duty and duty of fair dealing and good faith; (IV) aiding
and abetting the tortious conduct of anothe r; and (V) aiding and abetting a breach of
fiduciary duty. Appellant cont ends that the district court erred by granting respondents’
motion for summary judgment on each of thes e counts because he had standing to bring
each claim, the claims were no t time-barred, and he met his burden to show “but-for”
causation on the aspects of his claims relating to the allegedly fraudulent promissory note.
We conclude that appellant lacked standing to bring Counts I-V in a direct action. Because
appellant lacked standing to bring the claims, we need not consider the “but-for” causation
issue or whether the claims were time-barred.
“Minnesota has long adhered to the general principle that an individual shareholder
may not directly assert a cause of acti on that belongs to the corporation.”

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Wessin v. Archives Corp. , 592 N.W.2d 460, 464 (Minn. 1999). “When a shareholder
asserts a cause of action belonging to the corporation, the shareholder must seek redress in
a derivative action on behalf of the corpora tion rather than in a direct action by the
individual shareholder.” Id. (quotation omitted). In brin ging a derivative action, a
shareholder must comply with certain procedur al requirements set forth in Minn. R. Civ.
P. 23.09 that do not pertain to direct actions, including a requirement that the complaining
shareholder “‘allege with particularity the efforts . . . made . . . to obtain the desired action
from the directors’ of the corporation and the failure of the corporation to take such action.”
In re Medtronic, Inc. S’holder Litig. , 900 N.W.2d 401, 406 (M inn. 2017) (quoting Minn.
R. Civ. P. 23.09).
If a shareholder suffers an in jury not shared by the corporation, the claim is properly
brought in a direct action. Id. But when the shareholder’s injury “is only by reason of
injury to the corporation,” the shareholder may only raise the claim in a derivative lawsuit.
Id. at 408-09. To determine whether a claim is di rect or derivative, c ourts thus consider
two issues: (1) “who suffered th e injury alleged” and (2) “w ho would receive the benefit
of any recovery.” Id. at 408. In making these determinations, courts look “not to the theory
in which the claim is couched, but instead to the injury itself.” Id. at 407 (quotation
omitted).
The district court concluded that Coun ts I-V are “traditional derivative claims”
because “AEI is the entity wh ich suffered the injury alleged and it is AEI which would
have received the benefit of a ny recovery.” The court reached this conclusion because it
agreed with respondents that “the gist of [the claims in Counts I-V] pertains to the fact that

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Gerald and Peterson caused harm to AEI by taking its property.” Consequently, the district
court determined that appellant lacked standing to bring Counts I-V, noting that appellant
“did not commence this action in accordance with Minn. R. Civ. P. 23.09,” and granted
summary judgment in favor of respondents on Counts I-V.
Appellant contends that Counts I-V were properly brought in a direct action because
the claims are based on the pers onal damage he incurred in 2013 at the time of AEI’s
liquidation when he was not distributed his share of the value of the 40-acre property. He
argues that, at that point, AEI and the ESOP were dissolved and therefore “divested
themselves of any claims or rights to the assets which had formerly been owned by AEI.”
As a result, appellant argues, AEI “no longer had any claim in regard to the assets” and,
therefore, “[t]he only possible injured parties at that time became the persons who were the
assignees/beneficiaries of the liquidated and terminated shareholde r, including Daniel
Ashbach.”
We are not persuaded by appe llant’s argument that his claims are direct, rather than
derivative, simply because AEI was dissolved when appellant was personally harmed by a
reduced distribution from the corporation. As the supreme court explained in In re
Medtronic, the proper analysis for determining whether a claim must be direct or derivative
considers the nature of the injury, not the theory under which the claim is couched. In re
Medtronic, 900 N.W.2d at 407-08. Following the analysis set forth in that decision,
regardless of the various theories under which appellant framed his claims, he alleged only
one type of harm in Counts I-V: the financ ial loss he incurred when AEI was liquidated
because the 40-acre property was no longer an asset of AEI. It is readily apparent that this

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injury was an indirect result of the injury AEI incurred when Gerald wrongfully conveyed
the 40-acre property from AEI to himself in 2002 and then again in 2006. Appellant does
not allege that he had any personal ownership of the 40-acre property at any time. Rather,
it is undisputed that AEI owned the property. Accordingly, it was AEI that was directly
injured by the wrongful conveya nce of the property becaus e the conveyance depleted
AEI’s assets. And any injury appellant incurred after liquidation in 2013 was an indirect
consequence of the earlier injury to AEI. Appellant was injured only by reason of injury
to the corporation, and therefore was require d to bring his claims in Counts I-V in a
derivative action.
Appellant attempts to characterize his inju ry as one that was unique to him and not
shared by AEI because AEI no longer had a claim to any of the assets after its dissolution.
But the direct injury here occurred pr ior to AEI’s dissolution—i.e., when the wrongful
conveyances occurred. The injury appellant later incurre d when he received a reduced
distribution of corporate assets reflects an indirect injury, derived from AEI’s earlier injury,
rather than any unique, direct harm to a ppellant. Moreover, Minnesota permits former
shareholders of a corporation to bring actions on behalf of the co rporation after it is
dissolved (unless the claims are barred by a statute of limitations). Minn. Stat. § 302A.783
(2018) (“After a corporation has been dissolved, any of its form er officers, directors, or
shareholders may assert or defend, in the name of the corporation, any claim by or against
the corporation.”). The fact that AEI was dissolved at the time that appellant was
personally injured has no bearing on whether appellant’s claims are direct or derivative.

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Appellant also argues that the Mi nnesota Supreme Court’s decision in
Young v. Blandin, 9 N.W.2d 313 (Minn. 1943), suppor ts his position that his claims are
direct because, according to appellant, the case “established that a stockholder has personal
standing to recover damages for the failure to properly liquidate a nd distribute the assets
of a corporation.” In Young, a corporation’s majority sh areholder and sole managing
officer took possession of the corporate assets for the purpose of liquidation. Id. at 315-16.
The majority shareholder was tasked with pa ying the obligations of the corporation and
distributing the remainder of the assets to the shareholders. Id. at 316. Instead, the majority
shareholder made numerous risky and unauthor ized investments with the proceeds from
the sale of the assets, which diminished the distributions that the shareholders ultimately
received. Id. A minority shareholder brou ght suit in a direct action. Id. at 314. The
supreme court affirmed the district court’ s damages award in favor of the minority
shareholder, holding that the majority share holder violated his fiduciary duty to the
shareholders to liquidate and distribute the corporate assets because he engaged in actions
“inconsistent with the mere collection of assets, settlement of liabilities, and distribution of
the proceeds.” Id. at 317.
Young does not support appellant’s argument. In Young, the only injury that
occurred took place during the liqui dation and distribution process. At that point, it was
only the shareholders who were injured by the majority shareholder’s misconduct because
the terminated corporation no longer had an interest in the assets. In contrast, the present
case involves an injury that clearly took place years before the corporation’s liquidation at
a time when the corporation had an interest in its assets. Any injury the ESOP beneficiaries

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incurred during the liquidation and distribution process was an indirect result of that earlier
injury to AEI. Accordingly, regardless of the theory under which appellant has framed his
claim, the injury he alleges is not improper liquidation and distribu tion, but rather an
indirect injury from a wrongful depletion of assets that occurred prior to AEI’s dissolution.
Appellant cites no other cases to support his position, and we are not aware of any.
Appellant’s argument that he suffered an inju ry not shared by AEI, and that he properly
brought Counts I-V in a direct action, therefore is not persuasive.
In sum, AEI suffered an in jury from Gerald’s wrongful conveyance of the 40-acre
property and any injury appellant suffered as a result was indirect and shared with the
corporation. It is therefore AEI that w ould receive the benefit of any recovery.
Accordingly, appellant was required to bring Counts I-V in a derivative action. Because it
is undisputed that he failed to comply with th e procedures of Minn. R. Civ. P. 23.09, we
conclude that summary judgment in favor of respondents was appropriate.
II. The district court did not err by gr anting respondents’ motion for summary
judgment on Counts VI-X.

Counts VI-X of appellant’s complaint are based upon three separate alleged injuries
related to the distribution of AFLP’s assets. First, appellant alle ged that Peterson was
involved in general mi smanagement of AFLP’s assets and that appellant was harmed by
this mismanagement when AFLP’s assets were liquidated and distributed in 2009. Second,
appellant alleged that his distribution from AFLP was improperly re duced by $245,000.
Third, appellant alleged that his distribu tion from AFLP was further improperly reduced
by a $375,000 assessment against what he was owed. Regarding each of the claimed

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injuries, Counts VI-X alleged that responde nts engaged in the following: (VI) attorney
malpractice; (VII) fraudulent misrepresentation and failure to disclose; (VIII) breaches of
fiduciary duty and the duty of good faith and fair dea ling; (IX) aiding and abetting the
tortious conduct of another; and (X) aiding and abetting a breach of fiduciary duty.
Appellant contends that the district c ourt erred by granting respondents’ motion for
summary judgment on each of these counts on th e bases that he lacked standing to bring
each claim and the claims were time-barred.
A. Appellant lacked standing to brin g his claim of general mismanagement
of corporate assets in a direct action.

Appellant argued to the district court th at Peterson was involved in mismanaging
AFLP and AEI assets and that appellant was thereby injured by a diminished distribution
when AFLP was liquidated in 2009. Specifically, he argued that there should have been a
balance of at least seven milli on dollars for distribution at the time AFLP was liquidated,
rather than the 1.9 million dollars that exis ted. He therefore c ontended that he was
“damaged in an amount of 38. 39% of the approximately 5 million dollars or more of
wrongfully expended or distri buted or otherwise unaccounted for AFLP and AEI related
assets.” On appeal, appellant argues that the district court erred by concluding that this
claim was derivative and that he therefore lacked standing to raise it in a direct lawsuit.
The applicable law on standing is similar here to that discussed with respect to
Counts I-V. A limited partner may bring a direct action if he suffers an “injury that is not
solely the result of an injury suffered or threatened to be suffered by the limited
partnership.” Minn. Stat. § 321.1001(b) (2018).

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The district court concluded that appellant lacked standing to bring this claim. The
court noted that Counts VI-X all involve “the diversion of corporate funds.” It then
determined that appellant’s allegations set forth in those counts “all relate to the assets of
AEI and AFLP” and that “[a]ny injury that [appellant] may ha ve suffered indirectly is
inseparable from and based only upon an injury suffered by the Ashba ch entities.” The
district court therefore granted summary judgment in favor of respondents on Counts VI-X
because appellant failed to raise the claims in a derivative action.
Similar to appellant’s argument regarding Co unts I-V, he asserts that he has standing
to raise the claims in Counts VI-X because each of the claims relates to injuries he uniquely
suffered when AFLP was liquidated in 2009. We are not pe rsuaded. If the assets of AEI
and AFLP were mismanaged, any resulting inju ry appellant later suffered at the time of
AFLP’s liquidation was solely a result of the earlier injuri es suffered by those entities.
Appellant therefore may not raise his claim related to general mismanagement of assets in
a direct action, and summary judgment was pr oper for all aspects of Counts VI-X that
alleged damages on that basis.
B. Appellant’s remaining claims that his distribution from AFLP was
improperly reduced were time-barred.

In addition to his claim of general misman agement, appellant argued in Counts VI-X
that Peterson was involved in improperly reducing his distribution from AFLP by two
separate amounts. First, he asserted that Peterson wrongfully directed that his distribution
be reduced by approximately $245,000. Second , appellant alleged that his distribution
from AFLP was further reduced due to an approximately $375,000 assessment against what

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he was owed. This amount was based on appellant’s promise in the 2005 MOU to purchase
AFLP’s interest in a Minnesota resort. Appellant argued that he did not owe that debt to
AFLP because Gerald breached the MOU by conveying the 40-acre property to himself
without paying for it. Respondents assert th at the district court properly concluded that
appellant’s claims were barred by the applic able statute of limitations. While appellant
had standing to bring these claims because th e alleged injuries are unique to him and not
shared with the Ashbach entities, we agree with respondents that the district court properly
concluded that the claims were time-barred by the statute of limitations.
The statute of limitations for Counts VI-X is six years. Minn. Stat. § 541.05, subd. 1
(1),(5)-(6) (2018) (providing that the statute of limitations for fraud is six years, and that a
six-year limitations period applies wher e no other limitations period is expressly
prescribed). The limitations period begins running when a prospective plaintiff’s cause of
action accrues. Hansen v. U.S. Bank Nat’l Ass’n , 934 N.W.2d 319, 327 (Minn. 2019).
Minnesota courts follow the “some damage” rule of accrual. Hansen, 934 N.W.2d at 327.
That rule “requires that some damage has occurred as a result of the alleged [wrongful
conduct], but does not require that a prospective plaintiff be aware of all the operative facts
giving rise to a cause of action.” Id. (quotation omitted). The supreme court has “generally
defined the occurrence of some damage as the occurrence of any compensable damage ,
whether specifically identified in the complaint or not.” Id. (emphasis in original)
(quotation omitted).
Here, the district court determined, and appellant does not dispute, that he incurred
“some damage” regarding Counts VI-X in 20 09 upon the liquidation and distribution of

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AFLP’s assets. This is because any failure to distribute to appellant the amount to which
he was entitled would have inf licted “some damage” on appellant at that time. Instead,
appellant argues that the statute of limitations for his claims in Co unts VI-X was tolled
under the equitable doctrine of fraudulent concealment.
The doctrine of fraudulent concealment prov ides that “the statute of limitations does
not run during the time that the defendant fraudulently conceals from the plaintiff the facts
constituting the cause of action.” Minn. Laborers Health & Welfare Fund v. Granite Re,
Inc., 844 N.W.2d 509, 514 (Minn. 2014) (quota tion omitted). To toll the statute, the
fraudulent concealment generally must c onsist of a “positive affirmative act.” Id.
(quotation omitted). However, “when fraudulent concealment occurs during a fiduciary
relationship, the plaintiff need not show affirm ative acts of concealment as a prerequisite
to tolling the statute of limitations.” Cohen v. Appert , 463 N.W.2d 787, 790 (Minn.
App. 1990), review denied (Minn. Jan. 24, 1991). This is because a fiduciary relationship
involves a “high degree of trust.” Id. But this doctrine “only to lls the limitations period
until the concealment is or could have been discovered through reasonable diligence.” Id.
at 790-91. The party alleging fraudulent c oncealment has “the burden of proving that
concealment could not have been discovered sooner by reasonable diligence and was not
the result of his own negligence.” Id. at 791.
The district court rejected appellant’s argument that fraudulent concealment tolled
the statute of limitations with respect to Counts VI-X. It noted that appellant “received at
least four letters from Peterson regarding the distribution over more than one year’s time,
from March of 2009 until the final distribution of AFLP’s assets occurred in November of

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2010.” The court concluded that because th e letters “discussed valuations, offsets,
calculations and distributions,” appellant “can hardly claim that he was denied a reasonable
opportunity to discover whatever he clai ms might have been concealed from him by
Peterson or Gerald with regard to the adequacy of his distribution.”
On appeal, appellant does not identify any affirmative actions on the part of the
respondents or Gerald that would constitute fraudulent concealment with respect to Counts
VI-X. Instead, appellant argues that a fact issue exists concerning whether respondents
owed a fiduciary duty to appellant. He cont ends that because Pete rson did not explicitly
disclose “all facts that were relevant to th e amount distributed” to him, Peterson engaged
in fraudulent concealment. We are not persuaded.
Even assuming that respondents owed appe llant a fiduciary duty, the district court
did not err by concluding that appellant failed to meet his burden to show that he could not
have discovered the alleged concealment using reasonable diligence. As the district court
emphasized, Peterson sent four letters to appe llant and/or appellant’s personal attorneys,
both preceding and during the c ourse of AFLP’s termination and liquidation. The first
letter, dated March 5, 2009, indi cates that Peterson enclosed summaries of the assets of
AFLP, the estate of appellant’s mother, and a schedule relating to distributions. It further
states that “the schedules assume you are acquiring the real estate adjacent to your home.”
The real estate in question consisted of lots owned by appellant’s mother that were located
adjacent to appellant’s home. The second lett er, dated November 12 , 2009, is addressed
to one of appellant’s personal attorneys. The letter notes that Peterson had previously met
with the attorney to discuss distribution issues, including appellant’s “elect[ion] to take as

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a part of his estate the lots surrounding his home.” The letter further states that “the value
of the lots is greater than a 1/3 share of the estate assets and therefore [appellant] is indebted
to [his siblings]. Presumab ly, the cash in the partnershi p can be used to satisfy the
indebtedness owing to [appellant’s siblings].” This statement apparently refers to the lots
that appellant received from his mother’s estate, which ultimately resulted in the $245,000
reduction to his AFLP distribution. The third letter, dated December 17, 2009, is addressed
to another of appellant’s personal attorneys. It notes that Peters on “would be happy to
review” the “Partnership calcu lations” with the attorney. The fourth letter, dated
November 19, 2010, notifies appellant that “[w]e are in the process of . . . making the final
distributions.” It includes several pages of attachments, including a ledger showing
appellant’s final distribution as $107,758.
The letters from Peterson informed appell ant of what his distribution would be,
contemplated a reduction in his distribution due to the property he received from his
mother’s estate, and invited ap pellant and his attorneys to contact Peterson if they had
further questions. Appellant therefore knew or should have known at the time he received
the letters in 2009 and 2010 that his distribution may have been reduced by a certain
amount, even if he did not k now exactly how much. A pe rson exercising reasonable
diligence would have inquired further, and there is no indication that appellant raised any
questions at that time. Therefore, the record supports the district court’s conclusion that
appellant had a “reasonable opportunity to di scover whatever claims might have been
concealed from him by Peterson or Gerald with regard to the adequacy of his distribution”
and appellant’s failure to discover his claims was the result of his failure to inquire. See

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Cohen, 463 N.W.2d at 791 (stating that “the party claiming fraudulent concealment . . . has
the burden of proving that concealment c ould not have been discovered sooner by
reasonable diligence and was not the result of his own ne gligence”). Accordingly, the
district court did not err by concluding that there was no genuine disp ute of material fact
as to whether appellant coul d have discovered the allege d fraudulent concealment with
reasonable diligence. And the court did not err by determining that appellant’s claims were
time-barred.
III. The district court did not err by denying appellant’s motion for partial
summary judgment on Counts IV and IX.

Appellant also argues that the district court erred by denying his motion for partial
summary judgment on Counts IV and IX. B ecause we conclude that the district court
properly granted summary judgment in favor of respondents on all counts, we determine
that it did not err by denying appellant’s motion regarding Counts IV and IX.
Affirmed.