Peter Gerard Lonergan, and on behalf of all citizens civilly committed under the MCTA, 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This opinion is nonprecedential except as provided by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
A21-0303

Peter Gerard Lonergan, and on behalf of
all citizens civilly committed under the MCTA,
Appellant,

vs.

Keith Ellison, Attorney General, et al.,
Respondents.

Filed November 15, 2021
Affirmed
Smith, Tracy M., Judge

Ramsey County District Court
File No. 62-CV-19-6768

Peter G. Lonergan, Moose Lake, Minnesota (pro se appellant)

Keith Ellison, Attorney Genera l, Brandon Boese, Assistant Attorney General, St. Paul,
Minnesota (for respondents)

Considered and decided by Smith, Trac y M., Presiding Judge; Bjorkman, Judge;
and Reilly, Judge.
NONPRECEDENTIAL OPINION
SMITH, TRACY M., Judge
On appeal from the district court’s di smissal of his amen ded complaint with
prejudice, appellant Peter Gerard Lonergan ar gues that the district court (1) applied the
wrong legal standard and otherwise committed legal error, (2) failed to adequately consider
2
his memorandum of law in opposition to the mo tion to dismiss, and (3) made procedural
errors. We affirm.
FACTS
Lonergan is civilly committed to the Minnesota Sex Offende r Program (MSOP)
pursuant to the Minnesota Commitment and Tr eatment Act. Lonergan sued respondents
Minnesota Attorney General Keith Ellison, Commissioner of the Minnesota Department
of Health and Human Services Jodi Harpstead, and the Executive Director of MSOP Nancy
Johnston. His complain t set forth 17 questions regardin g the rights of persons civilly
committed to MSOP and asked the district court to “i ssue judgment on” the questions.
Respondents moved to dismiss Lonergan’s complaint for failure to state a claim pursuant
to Minn. R. Civ. P. 12.02(e). The district court granted respondents’ motion, concluding
that the 17 “abstract questions” did not present a justiciable controversy. The district court
dismissed Lonergan’s complain t without prejudice and granted him leave to file an
amended complaint.
Lonergan thereafter filed the amended compla int that is the subject of this appeal.
The amended complaint presented 17 questions that were nearly identical to those raised
in his first complaint, as well as an add itional allegation that respondents had committed
fraud.
Respondents again moved to dismiss pursu ant to Minn. R. Civ. P. 12.02(e). A
hearing was scheduled but, due to the pa ndemic, was canceled in favor of written
submissions only. Lonergan moved to strike respondents’ memorandum of law in support
3
of their motion to dismiss. He also filed a memorand um of law in opposition to
respondents’ motion to dismiss.
The district court granted respondents’ mo tion to dismiss with prejudice. In its
order, the district court concluded that Lonergan’s complaint failed to meet the heightened
pleading standard for fraud claims under Minn. R. Civ. P 9.02 and th us failed to state a
claim for fraud. And the district court dismi ssed his entire amended complaint because it
repeated the same questions and requests fo r relief as the prior complaint that was
dismissed without prejudice. In making its ruling, the district court referred to Lonergan’s
motion to strike but appears to have overlooked Lonergan’s memorandum of law opposing
the motion to dismiss.
Lonergan appeals.
DECISION
Lonergan argues that the district court erred by dismissing his amended complaint
for failure to state a claim upon which relief may be granted under Minnesota Rule of Civil
Procedure 12.02(e).
A district court properly dismisses a clai m for failure to state a claim under rule
12.02(e) only if “it appears to a certainty that no facts, which could be introduced consistent
with the pleading, exist which would support granting the relief demanded.” Walsh v. U.S.
Bank, N.A., 851 N.W.2d 598, 602 (Minn. 2014) (emphasis omitted). Appellate courts apply
a de novo standard of review when determining whether a district court erred in granting a
motion to dismiss for failure to state a claim. Id. at 606. We accept “the facts alleged in the
complaint as true and construe all reasonable inferences in favor of the nonmoving party.”
4
Id. We are not bound by legal conclu sions asserted in a complaint. Hebert v. City of Fifty
Lakes, 744 N.W.2d 226, 235 (Minn. 2008).
Lonergan makes three arguments challenging the district court’s dismissal of his
amended complaint, which we address in turn.
I. The district court applied the proper legal standard and did not err when it
concluded that the amended complaint failed to state a claim for fraud.

Lonergan argues that the district court a pplied the wrong legal standard and erred
when it concluded that the amended complaint failed to state a claim for fraud.
1
Regarding the legal standard, Lonergan cont ends that the district court “required
[him] to prove his case at the dismissal stage of the proceeding” when it should have instead
taken the allegations in the complaint as true. He points to the district court’s statement in
its order that, to succeed on his fraud claim, Lonergan “must prove that [respondents] made
a false representation of a past or existing material fact susceptible of knowledge with the
intention to induce Plaintiff to act in reliance thereon.” (Emphasis added.)
Lonergan’s argument is with out merit. In its order, the district court noted that,
under caselaw, to successfully plead a fraud, the party alleging fraud must allege the
elements of that claim with a heightened degree of pleading. See, e.g., Hardin Cnty. Sav.
Bank v. Hous. & Redevelopment Auth. of Brainerd , 821 N.W.2d 184, 191 (Minn. 2012).
The district court then identified the elements that a party alleging fraud must “prove” to

1 Lonergan appears to challenge only the di smissal of his fraud claim, although his
amended complaint also includes requests for declaratory judgment. As noted above, those
requests are nearly identical to those in his original complaint, an d the district court
previously concluded that those claims were legally insufficient because they failed to state
a claim. Lonergan does not challenge that decision.
5
succeed on a fraud claim at trial. See Valspar Refinish, Inc. v. Gaylord’s, Inc., 764 N.W.2d
359, 368 (Minn. 2009). The district court then considered those elements when determining
whether the amended complaint sufficiently pleaded fraud with the required particularity.
Thus, while the district court used the word “prove” when identifying what Lonergan
would have to show to prevail on his fraud claim, the district court’s dismissal was not
based on Lonergan’s failure to prove those elements—it was based on his failure to plead
those elements with the required particularity.
Nor did the district court err when it determined that Lonergan’s amended complaint
failed to plead fraud with the required particularity. In general, a complaint must “contain
a short and plain statement of the claim showing that the pleader is entitled to relief and a
demand for judgment for the relief sought.” Minn. R. Civ. P. 8.01. Every averment in the
pleading must be “simple, concise, and direct”; however, no specific or technical form of
pleading is required. Minn. R. Civ. P. 8.05(a). But partie s pleading fraud must meet a
heightened pleading standard: “In all averments of fraud . . . the circumstances constituting
fraud . . . shall be stated with particularity. Malice, intent, knowledge, and other condition
of mind of a person may be averred generally.” Minn. R. Civ. P. 9.02. This requirement is
met when the “ultimate facts are alleged.” In re Est. & Guardianships of Williams , 95
N.W.2d 91, 100 (Minn. 1959).
A plaintiff claiming fraud must prove:
(1) a false representation taken by [defendant] of a past or
existing material fact susceptible of knowledge; (2) made with
knowledge of the falsity of the representation or made without
knowing whether it was true or fa lse; (3) with the intention to
induce [plaintiff] to act in re liance thereon; (4) that the
6
representation caused [plaintiff] to act in reliance thereon; and
(5) that [plaintiff] suffered pecuniary damages as a result of the
reliance.

Valspar, 764 N.W.2d at 368.
In his amended complaint, Lonergan alle ged that respondents committed “Acts of
Fraud to Institutionalize Plaintiff Due to Animus, Political Hatred; and Not for a Legitimate
Government Purpose.” He additionally claimed that the respondents committed fraud when
they “obtained Administrative Variances,” diagnosed him “with a faux psychiatric disorder
by the misuse of psychiatric tools that [are ] directly opposed to best practice,” and
“unnecessarily” hospitalized him and held hi m in captivity. However, Lonergan did not
allege specific fraudulent statements in connection with these assertions. Nor did he allege
that any statements on the part of respondents were made with the intention to induce him
to act or that he acted on these alleged false statements. Absent more, these assertions do
not meet the specificity-of-pl eading requirements for fraud. See Williams, 95 N.W.2d at
100.
Lonergan also claimed that respondents committed fraud when they allegedly made
misrepresentations of law in various other court cases. But mi srepresentations of law are
generally not actionable for fraud. Northernaire Prods., Inc. v. County of Crow Wing, 244
N.W.2d 279, 281 (Minn. 1976). There are only two situations in which a misrepresentation
of law is actionable for fraud: “[t]hose in wh ich the person misrepresenting the law is
learned in the field and has taken advantage of the solicited confidence of the party
defrauded” and “those in which the person misrepresenting the law stands with reference
to the person imposed upon in a fiduciary or other similar relation of trust and confidence.”
7
Id. at 281-82 (quotation omitted). Neither of these exceptions a pplies in this case. As for
the first exception, Lonergan did not claim that he was the party defrauded by the alleged
legal misrepresentation; instead, he claimed that it was the court that was defrauded by the
alleged legal misrepresentation. As for the second exception, Lonergan did not allege facts
showing a “fiduciary or other similar relati on of trust and confid ence” between either
respondents and Lonergan or between respondents and the state or federal courts.
Moreover, even if the misrepresentations of law were actionable, Lonergan did not
allege that he “act[ed] in reliance” on any misrepresentation. Valspar, 764 N.W.2d at 368.
Instead, he asserted that the courts are the ones who relied on the alleged misrepresentation.
Nor did he sufficiently allege that he “su ffered pecuniary damages as a result of the
reliance.” Id. Lonergan’s claim cannot succeed because he did not adequately allege that
he is the person harmed by the respondents’ alleged fraud.
For these reasons, Lonergan failed to plea d the required elements of fraud sufficient
to survive a motion to dismiss for failure to state a claim.
II. Any error by the district court in overlooking Lonergan’s memorandum of law
opposing dismissal was harmless.

Lonergan next argues that the district court committed reversible error by failing to
consider his memorandum in opposition to respondents’ motion to dismiss. In its order, the
district court wrote, “In lieu of a responsive brief, Mr. Lonergan filed a motion to strike the
motion to dismiss on October 14, 2020.” The district court continued that it “interprets the
motion to strike as a response to this motion.” For purposes of this appeal, we will assume
8
that these statements by the district court me an that it did, in fact, overlook Lonergan’s
memorandum of law.
If, on appeal, a complaining party shows that the district court committed an error,
the mere existence of that e rror is insufficient to require reversal—rather, the party must
show prejudice resulting from that error. See Minn. R. Civ. P. 61 (requiring harmless error
to be ignored). Lonergan thus must show that he was prejudiced by what we are assuming
was the district court’s error in overlooking his brief. Id. He cannot do so, however,
because, as noted above, appellate courts review a district court’s granting of a motion to
dismiss for failure to state a claim under a de novo standard of review. Walsh, 851 N.W.2d
at 606. And, as explained above, we conclude that, under that standard of review and taking
into account the arguments made in Lonergan’s brief to this court, his amended complaint
is fatally defective.
III. Lonergan’s arguments of procedural error fail.

Lonergan next makes two procedural argum ents challenging the district court’s
dismissal. Neither has merit.
He first argues that he was entitled to a he aring on his motion to strike. Minnesota
Rule of Civil Procedure 7.02 governs motions and generally provides for hearings. But
Lonergan’s hearing was suspended in accordance with the administrative order of the Chief
Justice of the Minnesota Supreme Court re garding the peacetime emergency due to the
COVID-19 pandemic, and the related order of the Chief Judge of the Second Judicial
District suspending motion hearings in civi l cases and directing th at those motions be
considered on written submissions. The district court’s compliance with those orders was
9
not erroneous. In any event, Lonergan does not show that he was prejudiced by having his
case considered only on the parties’ written submissions.
Lonergan next claims that the district c ourt held an improper ex parte hearing on
October 13, 2020. He bases this claim on a notation in the district court’s register of actions
that lists a 7:00 motion that morning and states: “Result: Held Off the Record.” Lonergan
says that he “is not aware what the communication was, does not declare any improprieties,
but does claim that he was prejudiced as a result of the ex parte communication.” Although
the actual notation is not incl uded in the record on appeal, respondents acknowledge that
this is what the register of actions says.2 However, respondents argue that they did not have
any ex parte communication with the judge, a nd nothing in this notation indicates that an
ex parte communication actually occurred on that—or any other—date.
On appeal, the appellant bears the burden of proving that the district court erred.
Waters v. Fiebelkorn , 13 N.W.2d 461, 464-65 (Minn. 1944). Assuming th at the docket
notation says what Lonergan asserts it says, the notation does not establish that an ex parte
communication with respondents occurred. 3 Nor does Lonergan explain how he was
prejudiced, especially since he does not purport to identify what actually happened at the
district court.

2 We appreciate respondents’ candor on this point.

3 Respondents note that October 13, 2020, was the date of the originally scheduled hearing
on respondents’ motion to dismiss, which wa s canceled in favor of a determination on
written submissions only.
10
In sum, Lonergan’s challenges to the district court’s decision fail. The district court
did not err when it dismissed his amended complaint with prejudice.
Affirmed.