Daniel J. Engstrom, 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This opinion is nonprecedential except as provided by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
A21-1735

Daniel J. Engstrom,
Appellant,

vs.

Whitebirch Inc., et al.,
Respondents.

Filed November 28, 2022
Affirmed
Kirk, Judge*

Crow Wing County District Court
File No. 18-CV-17-2657

Carl E. Christensen, Christopher J. Wilcox, Christensen Law Office, PLLC, Minneapolis,
Minnesota (for appellant)

Gerald W. Von Korff, Jacob P. Petersen, Rinke Noonan, Ltd., St. Cloud, Minnesota (for
respondents)

Considered and decided by Larson, Presiding Judge; Smith, Tracy M., Judge; and
Kirk, Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
KIRK, Judge
Appellant, Daniel J. Engstrom, challenges the district court’s grant of summary
judgment on his claims under the Minnesota Consumer Fraud Act, Minn. Stat. § 325F.69,
subd. 1 (2020), and the Minnesota Real Estate Sales Regulations Act, Minn. Stat. § 83.44
(2020). We affirm.
FACTS
This is the second appeal in this matter. The facts relevant to the instant appeal are
as follows: Debra Engstrom— mother of appellant Daniel Engstrom—purchased a
timeshare from respondents, Whitebirch Inc., then added appellant as a joint owner. The
timeshare deed granted ownership to Debra Engstrom and Daniel Engstrom as joint tenants
with right of survivorship. Appellant did not receive a copy of the deed and questions the
deed’s validity.
1
After Debra Engstrom’s death, respondents sent a series of letters to Engstrom
stating that his mother had added Engstrom’s name to the timeshare deed, that the deed
had been recorded with the county, that Engstrom owed late dues, and that if Engstrom did
not wish to keep the timeshare, he could send a copy of his mother’s death certificate, and
sign and notarize a quitclaim deed and an affidavit of identity and survivorship. However,
after inquiry from Engstrom’s counsel, respondents contradicted their earlier statement that

1 More thorough discussions of the facts are available in our first decision, Engstrom v.
Whitebirch, Inc., No. A18-0366, 2018 WL 4290056 (Minn. App. Sept. 10, 2018), rev’d,
931 N.W.2d 786 (Minn. 2019); and the supreme court’s decision in Engstrom v.
Whitebirch, Inc., 931 N.W.2d 786 (Minn. 2019).
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the deed had been recorded, and stated that they sent Debra Engstrom the deed and that
“it’s up to the timeshare owner to file [the deed] with the county,” which Debra Engstrom
did not do. Respondents later offered to release Engstrom from this debt if he sent
respondents an original death certificate for his mother and returned a signed and notarized
quitclaim deed and affidavit of identity and survivorship.
Engstrom sued respondents, alleging that, in violation of the Minnesota Consumer
Fraud Act (CFA ), respondents created invalid deeds with rights of survivorship when
owners of timeshares died, and used those deeds to either induce the decedent’s family
members to pay timeshare fees or to grant ownership back to the respondents, avoiding
probate and foreclosure.
The parties stipulated that, because the deed was never recorded, Engstrom had no
right to or interest in the timeshare. On respondents’ motion, the district court dismissed
Engstrom’s complaint for failure to state a claim.
Engstrom appealed and this court affirmed the dismissal. Engstrom, 2018 WL
4290056, at *4. The supreme court reversed and remanded to the district court deciding
only the narrow issue of “whether appellant Daniel Engstrom’s payments to an attorney to
investigate what appellant contends were fraudulent demands constitute an ‘injury’ under
the statute.” Engstrom, 931 N.W.2d at 787.
On remand, Engstrom amended his complaint to also assert a claim under the
Minnesota Real Estate Sales Regulations Act, Minn. Stat. § 83.44. The district court
limited discovery to the issue of the disciplinary proceedings against the notary utilized by
respondents on timeshare deeds at the relevant time. After the close of that limited
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discovery, the district court granted summary judgment in respondents’ favor on both of
Engstrom’s claims. Engstrom appeals.
DECISION
Engstrom argues that the district court erred by sua sponte limiting discovery to one
issue on remand. We decline to reverse the district court’s decision on that ground because,
in this case, summary judgment was nevertheless proper. Engstrom had failed to provide
any information relative to his claim that would justify further discovery because he was
unable to point to any specific support of his claims of fraud.
Courts “shall grant summary judgment if the movant shows that there is no genuine
issue as to any material fact and the movant is entitled to judgment as a matter of law.”
Minn. R. Civ. P. 56.01. “To forestall summary judgment, the nonmoving party must do
more than rely on ‘unverified or conclusionary allegations’ in the pleadings or postulate
evidence which might be produced at trial.” W.J.L. v. Bugge, 573 N.W.2d 677, 680 (Minn.
1998) (quoting Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995)). We review a
grant of summary judgment de novo. Montemayor v. Sebright Prod., Inc., 898 N.W.2d
623, 628 (Minn. 2017).
Under the CFA,
The act, use, or employment by any person of any fraud, false
pretense, false promise, misrepresentation, misleading
statement or deceptive practice, with the intent that others rely
thereon in connection with the sale of any merchandise,
whether or not any person has in fact been misled, deceived, or
damaged thereby, is enjoinable. . . .

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Minn. Stat. § 325F.69, subd. 1 (2020). Private parties injured by violations of the CFA
may bring a private action under the private attorney general statute, Minn. Stat. § 8.31,
subd. 3a (2020). That statute “applies only to those claimants who demonstrate that their
cause of action benefits the public.” Ly v. Nystrom, 615 N.W.2d 302, 314 (Minn. 2000).
In Ly, the “[a]ppellant was defrauded in a single one- on-one transaction in which
the fraudulent misrepresentation, while evincing reprehensible conduct, was made only to
appellant.” Id. at 314. The supreme court determined that prosecution of the appellant’s
claim “d[id] not advance state interests and enforcement ha[d] no public benefit, and [wa]s
not a claim that could be considered to be within the duties and responsibilities of the
attorney general to investigate and enjoin.” Id.
In order to survive summary judgment on his claims, Engstrom “must present
specific facts which give rise to a genuine issue of material fact for trial.” Bugge, 573
N.W.2d at 680 (emphasis added). Engstrom claims that he alleges a public benefit because
respondents’ notary’s commission was once suspended and, therefore, he claims he has
asserted sufficient evidence that respondents “concocted or forged or improperly notarized
documents.” He continues that his own “underlying transaction documents themselves
constitute violations of the CFA” such that this court cannot assume that respondents have
not acted similarly in other situations. However, Engstrom concedes that he could have,
but did not, investigate his claim by contacting other timeshare owners to inquire into
whether any situations like his own had occurred. Because he does not present any specific
facts that show the CFA claim benefits anyone beyond himself—to the extent Engstrom
alleges fraud at all, which this court does not reach—his claim is similar to the “one-on-
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one” transaction in Ly and does not establish a public benefit. Ly, 615 N.W.2d at 314. The
district court therefore did not err in granting summary judgment on the CFA claim in
respondents’ favor.
Engstrom also argues that the district court erred by granting summary judgment for
respondents on Engstrom’s claim under the Minnesota Real Estate Sales Regulations Act,
Minn. Stat. § 83.44. Under that statute, in relevant part:
It is unlawful for any person, in connection with the offer or
sale of any subdivided land or interests therein, directly or
indirectly:
(a) to employ any device, scheme, or artifice to defraud;
(b) to make any untrue statement of a material fact or to omit
to state material facts necessary in order to make the statements
made, in the light of the circumstances under which they are
made, not misleading;
(c) to engage in any act, practice, or course of business which
operates or would operate as a fraud or deceit upon any person.
. . . .

Minn. Stat. § 83.44. However, Engstrom does not allege any sale under which this statute
could apply. Engstrom was not a party to the initial timeshare sale to Debra Engstrom, and
because the parties stipulated that Engstrom has no interest in the timeshare, there could
not have been an offer to sell land related to respondents’ offer to forgive Engstrom’s past-
due fees in exchange for his signature of a quitclaim deed. The district court therefore did
not err in granting summary judgment on Engstrom’s claim under Minn. Stat. § 83.44 in
respondents’ favor.

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Finally, respondents filed a motion to strike an argument in Engstrom’s appellate
brief. However, because we affirm without considering that argument, we deny the motion
to strike as moot. See Justice v. Marvel, LLC, 979 N.W.2d 894, 903 n.9 (Minn. 2022).
Affirmed.