Loading...
HomeMy WebLinkAboutMemo in Support for Dismissal ;;. STATE OF MINNESOTA DISTRICT COURT COUNTY OF SCOTT FIRST JUDICIAL DISTRICT Priorview Limited Partnership, a/k/a Priorview Limited, a Minnesota Limited Partnership, Case No. 93-08239 Plaintiff, DEFENDANT CITY OF PRIOR LAKE'S MEMORANDUM IN SUPPORT OF ITS MOTION FOR DISMISSAL v. Independent School District No. 719 of Scott County and the City of Prior Lake, Defendants. Defendant city of Prior Lake submits this Memorandum in Support of its Motion for Dismissal of the claims against it brought by Plaintiff Priorview Limited Partnershi~ ("Plaintiff"). Plaintiff has no cause of action against the city. Even if Plaintiff had a cause of action, any claim would be barred by the statute of limitations and the doctrine of discretionary immunity. I . STATEMENT OF FACTS Plaintiff is a limited partnership engaged in the business of land development. Its general partners are Thomas Steffens and Joe Knoblauch (Anderson Aff idavi t, par. 2). Steffens is also an attorney with the law firm of Steffens / Wilkerson and Lang. Plaintiff acquired certain property within the city of Prior Lake for the purpose of constructing and developing town houses Lid., par. 2). The property, however, was not sui table for development because it possessed no access to any public roads (~., par. 5). The Five Hawks Elementary School owned by defendant Independent School District No. 719 (the II School District ") lay between plaintiff's property and State Highway 13. The school district had built and maintained a gravel driveway from Highway 13 to the school building. A portion of this driveway ran next to plaintiff's property. The length of this gravel driveway was approximately a quarter of a mile (Id.). In 1983, plaintiff presented the city with a plat to develop a portion of its land entitled Priorview First Addition (.lQ"., Exhibit 11). Plaintiff's application for plat approval was governed by the city's subdivision ordinance enacted in 1974 (Id, Exhibit 1). Plaintiff also applied for a Planned Unit Development (IIPUD") which was governed by Section 6.11 of the city's zoning ordinance (Id. Exhibit 2). Pursuant to the authority provided by Minn. Stat. 462.358, subd. 2a and 2b, the subdivision ordinance required plaintiff to provide suitable streets, water and sewer systems and storm drainage. Subdivision Ordinance Ch. 5 and 6 (Anderson Affidavit, Exhibit 1). Obviously, the city could not approve plaintiff's plat without public access to the development (Id., par. 11). In order to provide suitable ingress and egress, plaintiff entered into negotiations with the school district in order to obtain the use of its driveway. The school district was willing to grant an easement to the city for its driveway and share the costs of paving this new street, provided that the school district was given credit for the expenses that it had incurred in constructing the driveway in the first place. The school - 2 - district's position was set forth in three letters written S ep t emb e r 1 5 , 1 982 to June 2 9 , 1 98 3 ( I d., Exh ib its 3, 4 & 5). School district officials signed a document on September 16, 1983 setting out the terms for the improvement and dedication of a new street to be called Five Hawks Avenue (Id., Exhibit 8). The Prior Lake City Council approved the plat and PUD for the Priorview First Addition on August 8, 1983 on condition that a Developer's Agreement be executed and that "Priorview will provide a document or an agreement for providing the public easement with the endorsement of the Building Committee of the School District 719 prior to the issuance of permits" (Id. Exhibit 7). Plaintiff and the city executed a Developer's Agreement on September 19, 1983. This Developer's Agreement required plaintiff to improve the driveway into a hard surface road to be named Five Hawks Avenue which would provide ingress and egress to Priorview First Addition (Id., Exhibit 10). Plaintiff's Complaint at paragraph 33 states that "Defendants stated and represented to Priorview that the existing road and its subgrade had been adequately maintained and was in full compliance with city standards and regulations for unpaved roads. II The city made no such representation and does not have "city standards and regulations for unpaved roads" (Id., par. 12). Plaintiff hired an engineer and contracted with a private company to' make the improvements to the driveway required by the Developer's Agreement (Id., par. 14). That portion of Five Hawks Avenue which provides public access to Priorview First Addition was completed by the end of 1983 (Id.). The street was accepted by the - 3 - City Engineer in 1983 and has been maintained by the city ever since Ll.d.). In 1985, plaintiff sought similar approval for Priorview Second Addition. The plat approved by the city council contained an extension of Five Hawks Avenue which was within the platted property (Id., Exhibit 14). Plaintiff executed a second Developer's Agreement which required it to provide streets and other utilities (~., Exhibit 13). The improvements contemplated by the Developer's Agreement were completed during 1985. The City Engineer accepted the dedicated streets in the Second Addition in 1985, and they have been maintained by the city ever since (Id., para. 19). Plans for a further subdivision and extension of Five Hawks Avenue has not occurred. Five Hawks Avenue is currently a deadend street. During the process outlined above, the city was well aware that plaintiff and the school district had agreed to share the costs of construction of Five Hawks Avenue. City officials did not take part in the negotiations between plaintiff and the school district. The city's only interest was to ensure that the developer provided adequate streets and other utilities (Id., par. 11 ) . Count I of plaintiff's Complaint alleges "breach of contract. II The allegations contained in the Complaint refer to an agreement that plaintiff had with the school district which is attached as Exhibit A to the Complaint. None of the allegations relating to Count I refer to the city of Prior Lake (Complaint, paras. 14-27). - 4 - Nevertheless, plaintiff's prayer for relief demands judgment on Count I against the city. In Count II, plaintiff claims that the city has been unjustly enriched by virtue of the acquisition of public right-of-way leading to priorview First Addition and Priorview Second Addition. In Count III, plaintiff claims that both the city and the school district have committed fraud. In the negotiations between plaintiff and the school district, the school district had insisted that it receive credit for expenditures made in connection with the construction and maintenance of its gravel driveway. (M. , Exhibits 4, 5 & 8). Plaintiff alleges that "Defendant stated and represented to Priorview that the existing road and its subgrade had been adequately maintained and was in full compliance with city standards and regulations for unpaved roads" (Complaint, par. 33). Plaintiff claims that based upon these representations made by "Defendants," it agreed to credit the school district $25,204.70. Finally, lias to all counts" plaintiff demands punitive damages in an amount exceeding $25,000. II. LEGAL ISSUES A. DOES COUNT I ALLEGING A BREACH OF CONTRACT STATE A CAUSE OF ACTION AGAINST THE CITY OF PRIOR LAKE? B. IS PLAINTIFF'S CLAIM OF BREACH OF CONTRACT AGAINST THE CITY OF PRIOR LAKE BARRED BY THE STATUTE OF LIMITATIONS WHERE THE IMPROVEMENTS IN QUESTION WERE CONSTRUCTED AND ACCEPTED BY THE CITY MORE THAN SIX YEARS BEFORE THE CLAIM WAS BROUGHT? C. WHERE A DEVELOPER AGREES TO PROVIDE STREET AND OTHER UTILITIES PURSUANT TO A DEVELOPER'S AGREEMENT AND DOES SO, DOES THE - 5 - DEVELOPER HAVE A CAUSE OF ACTION AGAINST THE CITY FOR UNJUST ENRICHMENT? D. ARE PLAINTIFF'S CLAIMS OF UNJUST ENRICHMENT IN CONNECTION WITH THE CITY'S ACCEPTANCE OF CERTAIN STREETS AND OTHER UTILITY IMPROVEMENTS BARRED BY THE STATUTE OF LIMITATIONS WHERE THE CITY ACCEPTS THESE IMPROVEMENTS MORE THAN SIX YEARS BEFORE THE CLAIM WAS BROUGHT? E. DOES PLAINTIFF'S CLAIM AGAINST THE CITY FOR FRAUD AND MISREPRESENTATION COMPLY WITH THE REQUIREMENTS OF RULE 9.02 OF THE RULES OF CIVIL PROCEDURE WHICH REQUIRES THAT II IN ALL AVERMENTS OF FRAUD OR MISTAKE, THE CIRCUMSTANCES CONSTITUTING FRAUD OR MISTAKE SHALL BE STATED WITH PARTICULARITY?" F. DOES PLAINTIFF STATE SUFFICIENT FACTS IN COUNT III OF ITS COMPLAINT UPON WHICH A CLAIM FOR FRAUD CAN BE BASED? G. IS THE CITY OF PRIOR LAKE IMMUNE FROM PLAINTIFF'S CLAIM OF FRAUD BY VIRTUE OF THE DISCRETIONARY IMMUNITY DOCTRINE SET FORTH IN~. STAT. 466.03, SUBD. 6? H. SHOULD PLAINTIFF'S PRAYER FOR PUNITIVE DAMAGES BE STRICKEN BECAUSE IT HAS NOT COMPLIED WITH THE REQUIREMENTS OF MINN. STAT. 549. 191? III. LEGAL ARGUMENT Plaintiff's Complaint against the city of Prior Lake must be dismissed because it fails to state facts upon which any claim can be based. Plaintiff applied for approval of two separate subdivisions in 1983 and 1985. The city granted plaintiff's applications after plaintiff agreed to provide suitable road access, streets and other utilities. The city did not breach any agreement with plaintiff and was not unjustly enriched when it accepted the streets and other utilities constructed by plaintiff. Plaintiff has no claim for fraud and its allegations of fraud are not made with the required specificity. Furthermore, plaintiff's claims are barred by the six year statute of limitations. - 6 - A. Leqal Standards For Motions For Summary Judqment. Rule 56.03 of the Minnesota Rules of Civil Procedure provide that the moving party is entitled to judgment as a matter of law if no genuine issue of material fact exists. Illinois Farmers Ins. Co. v. Tanemark Co., 273 N.W.2d 630 (Minn. 1978). In the case presently before the court, the material facts are undisputed and, as a matter of law, compel the conclusion that summary motions should be granted. The applicable standard in Minnesota is as follows: Summary judgment is proper when the nonmoving party fails to provide the court with specific facts indicating that there is a genuine issue of fact. [ci tation omitted] In order to successfully oppose a motion for summary judgment, a party cannot rely on mere general statements of fact but rather must demonstrate at the time the motion is made that specific facts are in existence which create a genuine issue for trial. Hunt v. IBM Mid-America Emnlovees Federal Credit Ugjoq, 384 N.W.2d 8 5 3, 8 5 5 ( M i nn . 1 9 8 6) . The courts no longer regard Rule 56 motions as a disfavored procedural shortcut, but instead consider it to be an integral part of the Rules of Civil Procedure, designed to "secure the just, speedy, and inexpensive determination of every action. II .Celo~ Gorn. v. Catret~, 477 u.s. 317 (1986). Summary judgment must be granted if the nonmoving party has failed to make a sufficient showing to establish the existence of an essential element on which that party will bear the burden of proof at trial. Garlisle v. Qlly of Minneanolis" 437 N.W.2d 712, 715 (Minn. App. 1989) (quoting - 7 - eel 0 t e x Corn., 4 7 7 u. S . at 3 2 2 , 3 2 3 . ) "Plaintiff must present affirmative evidence in order to defeat a properly supported motion for summary judgment." l..d. at 715; ,see also Ander$on v. Liberty Lobbv. Inc., 477 u.s. 242 (1986). Summary judgment is an excellent device by which a trial court may make expedited dispositions of those cases in which a trial would be fruitless. Barker v. Norman, 651 F. 2d 1107, 1123 (5th Cir. 1981). This is especially true with respect to lawsuits against governmental agencies. Government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Harlow v. Fitzaerald, 457 U.S. 800 (1982). Courts recognize that claims against the government involve social costs "including the expenses of litigation, the diversion of official energy from pressing public issues, and the deterrence of able citizens from acceptance of public office" M. at 813. B. Any ~ For Breach Of Contract Brouqht In Count I Against The City Should Be Dismissed Because Of Plaintiff's Failure To State Facts ~ Which A Claim Can Be Based And Due 'r.Q Operation Of The Statute Of Limitations. In its prayer for relief, plaintiff demands damages against the city of Prior Lake in connection with its breach of contract claim recited in Count I. The agreement which plaintiff contends has been breached is a document signed by the superintendent and clerk of the school district. Plaintiff makes no allegations that the city was a party to this agreement. The paragraphs contained - 8 - in Count I of the Complaint make no reference to the city. In fact, the city was not a party to any agreement for payment of the costs of improvements to Five Hawks Avenue. Plaintiff and the city did enter into two Developer's Agreements. Plaintiff makes no claim that the city breached either of these two agreements. Since plaintiff makes no allegation in its Complaint that the city breached any contract with plaintiff, its prayer for relief against the city in connection with Count I must be dismissed. Any claim against the city arising out of the construction of the road is barred by the statute of limitations. Minn. Stat. 541 .05, subd. 1 provides that the statute of limitations for a claim based upon a contract is six years. The improvements required by the city as a condition for plat and PUD approval, were completed in 1986. Any contract claim against the city is barred by the statute of limitations. c. Plaintiff Has No Cause Of Action Aqainst The City For Unjust Enrichment. In Count II, plaintiff alleges that both the school district and the city "have been unjustly enriched at the expense and to the detriment of Priorview because they have received, retained and benefited from the road construction project undertaken by Priorview" and "knowingly accepted the improvements to the roadway made by Priorview and . have received and continue receiving the benefits of said improvements (Complaint, paras. 29, 31). Plaintiff entitled this cause of action "Unjust Enrichment. II Unjust enrichment occurs when a person has and retains money or benef i ts which in justice and equity belong to another. A - 9 - quasi-contractual liability for unjust enrichment is based upon the ground that a person receiving a benefit which is unjust ought to make restitution. Mehl v. Norton, 201 Minn. 203, 275 N.W. 843 (1937). The essential elements of unjust enrichment are (1) a benefit conferred upon the defendant by plaintiff, (2) appreciation by the defendant of such benefit, and (3) acceptance and restitution by the defendant of such benefit under circumstances which make it inequitable to retain it without paying for it. 66 Am. Jr. 2d, Restitution and Implied Contracts 99 3-6, at 945-49 (1991). The retention of the benefit which results in enrichment does not necessarily give rise to unjust enrichment. liThe retention of the benefit must be unjust to give rise to an obligation of restitution or payment. II Mehl v. Norton, 275 N.W. at 844 (emphasis supplied). An implied contract which gives rise to an unjust enrichment claim cannot exist if the parties have an express contract as well. 66 ~m. Jur. 2d Restitution and Implied Contracts 9 6, at 948-49 (1991). The equitable relief of unjust enrichment cannot be granted where the rights of the parties are governed by a valid contract. Yn1ted States F~e ~. v. Minnesota ~ate Zoolo~ical Bd., 307 N.W.2d 490, 497 (Minn. 1981); ~v v. Bush, 283 Minn. 105, 166 N. W. 2d 358 (1969). Plaintiff's claim of unjust enrichment against the city must fail for several reasons. First, state law, city ordinance and common sense require that the developer of property provide the necessary access, streets and other utilities for the project. Plaintiff requested that the city approve its subdivision and PUD - 10 - application for priorview First Addition. Plaintiff's application could not be approved if the plat was landlocked from all access. It was plaintiff's responsibility to provide public access. With respect to Priorview Second Addition, plaintiff's proposal included the dedication and construction of public streets including an extension of Five Hawks Avenue. The city simply approved plaintiff's proposal. Second, no court of any jurisdiction has ever held that a city is unjustly enriched when it accepts the dedication and construction of a public thoroughfare as part of a subdivision. The lack of cases on this point demonstrates the absurdity of plaintiff's position. Third, for each of the two subdivisions, plaintiff and the city entered into an express, written contract setting out the obligations of the developer. Plaintiff was contractually obligated to provide at its expense improvements to the property including streets, sewers and other utilities. Plaintiff performed its obligations under the two Developer's Agreements and cannot recover its expenses from the city under a quasi-contractual theory of liability. Finally, plaintiff's unjust enrichment claim is barred by the statute of limitations. Minn. Stat. 541-05, subd. 1(1) provides for a six year statute of limitation "upon a contract or other obligation, express or implied, as to which no other limitation is expressly prescribed." The statute of limitations for contract claims applies to a claim for unjust enrichment. 66 bm. J~. 2d, - 11 - Restitution and Implied Contracts ~ 154 (1991). Construction and its acceptance by the city for that portion of Five Hawks Avenue leading to Priorview First Addition was completed in 1985. The city accepted the completed extension of Five Hawks Avenue in Priorview Second Addition in 1986. Since 1986, the city has continually maintained Five Hawks Avenue. Accordingly, the statute of limitations has run on any claim for unjust enrichment. D. Plaintiff Has No Cause Of Action Aqainst The Ci~V For Fraud. Its Complaint Improperly Alleqes Fraud And The City Is Immune From This Claim. In Count III, plaintiff alleges fraud and misrepresentation against both the city and the school district. The agreement between plaintiff and the school district provided that those parties would share the expense of upgrading the gravel driveway owned by the school district which begins at State Highway 13 and leads up to Priorview First Addition. The school district contended that it had spent $25,204.70 in constructing this driveway. Plaintiff and the school district agreed that the school district would get credit for this expenditure in the division of the costs. Plaintiff alleges that "defendant stated and represented to priorview that the existing road and its subgrade had been adequately maintained and was in full compliance with city standards and regulations for unpaved roads" (Complaint, par. 33). Plaintiff states that this representation was either false or made wi thout knowing whether or not the representation was false. Plaintiff states that this false representation was made "with the intention to induce Priorview to act in reliance upon them and the - 12 - representations were made under such circumstances that Priorview was justified in relying upon them" and agreed to give credit to the school district in the amount of $25,204.70 (Id., paras. 35 & 36) . 1. Plaintiff's Complaint fails to state a cause of action aqainst the oity for fraud. The essential elements which must be proved to support a claim of fraud are set out in Hanson v. Ford Motor Co., 278 F.2d 586, 591 (8th Cir. 1960): 1. There must be a representation; 2. That representation must be false; 3. It must have to do with a past or present fact; 4. That fact must be material; s. It must be susceptible of knowledge; 6. The representor must know it to be false, or in the alternative, must assert it as of his own knowledge without knowing whether it is true or false; 7 . The representor must intend to have the other person induced to act or justified in acting upon it; 8. That person must be so induced to act or so justified in acting; 9. That person's action must be in reliance upon the representation; 10. That person must suffer damage; and 11. That damage must be attributable to the misrepresentation, that is, the statement must be the proximate cause of the injury. See also, Dav~ v. R~rao Manufgcturina Co~, 276 Minn. 116, 117, 149 N.W.2d 37, 38-39 (1967). Plaintiff's allegations, even if true, are not sufficient to support an action for fraud against the city. The alleged false statement consisted of an agent of one of the defendants stating that (1) the school district's driveway "had been adequately maintained" and (2) "was in full compliance with city standards and - 13 - regulations for unpaved roads." The first portion of this alleged statement is not a,representation of a fact. Adequate for what? Expressions of opinion such as this will not support an action for fraud. In Johnson v. Hed, 410 N.W.2d 423 (Minn. App. 1987), the court held that a seller's representations concerning the adequacy of a drainage system were not fraud since they did not represent a present fact. Instead, the assurances were only an opinion. Opinions are actionable only where either a position of trust or disparity of knowledge exists. ~. at 427. Here, plaintiff hired its own engineer to plan the improvements. The second portion of the alleged statement also fails to support an action for fraud. Compliance with city standards for unpaved roads (if such standards exist) does not amount to a warranty. The Developer's Agreement required plaintiff to improve the road by paving it. How that improvement was to be done was entirely up to plaintiff. This statement cannot, as a matter of law, be material since it has no bearing on the amount of work or cost that plaintiff would incur in improving the road. The test of materiality is whether the alleged representation would naturally affect the conduct of plaintiff. SaWYer v. Tildahl, 275 Minn. 457, 148 N.W.2d 131 (1967). A statement that a driveway meets city requirements cannot be material when plaintiff agrees to bear the costs of paving it. In fact, plaintiff hired its own engineer and crew to perform the improvements. Accordingly, plaintiff will not be able to prove that any statement by the city induced it to reach an agreement - 14 - with the school district. In Tavlor v. Sheehan, 435 N.W.2d 575 (Minn. App. 1989), a fraud claim brought by a purchaser of a company was dismissed where the purchaser hired an accountant who reviewed the company's books. Similarly, plaintiff will not be able to demonstrate either inducement or reliance since he hired hi s own expert to plan the improvement. If plaintiff has any complaint concerning the adequacy of the work done, it should have sought a remedy from the engineer and contractor it hired. 2. Plaintiff's alleqations fail to state the circuMstances of fraud with sufficient particularity. Rule 9.02 of the Rules of Civil Procedure requires: In all averments of fraud or mistake, the circumstances consti tuting the fraud or mistake shall be stated with sufficient particularity. Malice, intent, knowledge, and other condition of mind of a person may be averred generally. This requirement has been enforced by the appellate courts. Westaor v. Grimm, 318 N.W.2d 56 (Minn. 1982). Fraud claims have been dismissed where plaintiff has failed to specify the false statement, Juster Steel v. Carlson Cos., 366 N.W.2d 616 (Minn. App. 1985), and the extent of damages. $eafirst Commercial Croo. v.. Soeakmans" 384 N.W.2d 895 (Minn. App. 1986). In StuJ;)blefiftid v. G~uenbe;:g, 426 N.W.2d 912 (Minn. App. 1988), defendant alleged that the plaintiff fraudulently induced him to sign a note but did not state any facts to support this allegation. The appellate court affirmed the trial court's grant of summary judgment to the plaintiff on the grounds that the fraud - 15 - defense was not sufficiently pled. Similarly, the trial court's refusal to permit an amendment to the Complaint was upheld in Baines v. Piner. Jaffrev & Honwood. Inc.., 497 N.W.2d 263, 272 (Minn. App. 1993), where plaintiff had failed to connect a false statement to damages suffered. Plaintiff's fraud allegation violates Rule 7.02 in several respects: 1. It does not state HhQ made the alleged statement. The reader is left to speculate concerning which of the two defendants employed the alleged representor, the identity of that person and the circumstances of the statement. 2. It fails to specify what is false about the statement. 3. It fails to specify how the statement was material. 4. It does not indicate how plaintiff relied upon the statement or how the statement caused plaintiff damage. Plaintiff had to make arrangements with the school district to acquire a right-of-way to Highway 13. The school district wanted $25,204.70. If plaintiff had not agreed to the school district's terms, it would not have received the right-of-way and plat approval. Plaintiff's allegations have not, and cannot tie any alleged false statement to any specific damage. Se~ Baines., supra. s. Damages are not specified. Plaintiff's claim that damages exceed $25,204.70 and II continued" are insufficient. ~e~ S~afirst Commerc~, supra. Accordingly, the fraud claim against the city must be dismissed. 3. The city is immune from suit for fraud based upon the doctrine of discretionary immunity. Fraud is a tort. West v. Walker, 181 Minn. 169, 150 N.W. 826 (1930); Annot., 13 A.LR.3d 875, 883 (1967). Liability of - 16 - municipalities for tort is governed by Minn. Stat. ch. 466. Section 466.03, Subd. 6 provides immunity for: Any claim based upon the performance on the failure to exercise or perform discretionary function or duty, whether or not the discretion is abused. Governmental conduct is protected from liability when the conduct is of a policy-making nature involving social, political, or economical considerations. Nusbaum v. Blue Earth Countv" 422 N.W.2d 713, 722 (Minn. 1988). This exemption recognizes that the courts are not an appropriate forum to review and second-guess acts of government which involve the exercise of judgment or discretion. Cairl v. State, 323 N.W.2d 20, 23 (Minn. 1982). The city's role here was to pass judgment upon plaintiff's application for approval of its subdivision and PUD. Cities enjoy immunity in the exercise of that function. ~lson v. Radache~, 352 N.W.2d 389 (Minn. 1984); Anderson v. Citv of Minnea~oli~, 287 Minn. 287, 178 N.W.2d at 215 (1970). Plaintiff's lawsuit is against the city - not any city employee. If plaintiff had sued a specific ci ty employee, that employee could invoke a broader immunity - official immunity - which would apply absent a showing of malice. In this case, the doctrine of discretionary immunity governs. E. Plaintiff's Claim For Punitive Damaqes Must Be Stricken. Plaintiff's prayer for relief demands punitive damages in excess of $25,000 against the school district and the city. Plaintiff's claim violates the clear mandate of Minn. Stat. 549.191 which requires plaintiff to receive court approval before any claim - 17 - for punitive damages can be asserted. Plaintiff has violated that statute, and its claim for punitive damages must be stricken. IV. CONCLUSION Plaintiff is a developer who sought approval for two subdivisions within the city of Prior Lake. In accordance with state law and city ordinance, the city required plaintiff to provide access to its development and the appropriate streets and utilities. Plaintiff executed two Developer's Agreements and complied with the provisions of those agreements. The city did not breach any agreement that it had with plaintiff and was not unjustly enriched by its acceptance of Five Hawks Avenue. Plaintiff's action for fraud is improperly pleaded and does not state a cause of action against the city. Accordingly, plaintiff's complaint against the city of Prior Lake must be dismissed. Dated: September 22, 1993. LOMMEN, NELSON, COLE & STAGEBERG, P.A. BY Stephen C. Rathke, I.D. No. 89771 Attorneys for City of Prior Lake 1800 IDS Center 1800 South 8th Street Minneapolis, MN 55402 (612) 339-8131 S: \SHDATA\P31893\SCR\PRIOR. PMl - 18 -