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Conklin v. ETOC Co., Inc.

Court of Appeals of Minnesota

September 9, 2013

Daniel C. Conklin, Appellant,
ETOC Company, Inc., a Minnesota Corporation, Respondent, and Grand View Vacation Properties, LLC, Respondent.


Crow Wing County District Court File No. 18-CV-12-592.

Sarah R. Jewell, John R. Koch, Reichert Wenner, P.A., St. Cloud, Minnesota (for appellant)

James M. Gammello, Thomas C. Pearson, Daniel M. Hawley, Gammello, Qualley, Pearson & Mallak, PLLC, Baxter, Minnesota (for respondent ETOC Company)

William L. Davdison, Ryan P. Myers, Lind Jensen, Sullivan & Peterson, P.A., Minneapolis, Minnesota (for respondent Grand View Vacation Properties)

Considered and decided by Peterson, Presiding Judge; Bjorkman, Judge; and Klaphake, Judge. [*]


Appellant challenges the summary judgment granted to respondents on his fraudulent-misrepresentation and breach-of-contract claims. Because appellant failed to make a showing sufficient to establish a genuine issue for trial, we affirm.


In July 2008, appellant Daniel C. Conklin purchased an approximately 4.4-acre parcel of property with 365 feet of lakeshore on Round Lake in Crow Wing County from respondent ETOC Company, Inc., which had listed the property for sale with respondent Grand View Vacation Properties, LLC (Grand View). Appellant learned about the property from his real estate agent, Pat Heinen, who told appellant that the property represented a good investment. Heinen knew that appellant had sold a commercial building and that he was looking for an investment venture. Appellant and Heinen inspected the property on June 7, 2008, and found that it was heavily wooded, with some rough terrain near the water, and that there were some dead reeds from the previous year in the lake within 20 feet of the shore. Appellant and Heinen walked along the shoreline and saw that the water was "clear and smooth" beyond the reeds and there was sparse evidence of vegetation growth. The following day, appellant and his wife and Heinen stood on a neighboring property owner's dock on the west side of the property and looked into the lake and could see sand on the lake bottom. Heinen lived on Round Lake and told appellant that the lake in front of her property had a sand bottom. Heinen also told appellant that the detail sheet for the Multiple Listing Service (MLS) listing for the property stated that the lake in front of the property had a sand bottom. The listing, however, described the lake bottom as "Sand Soft." And at the bottom of the listing, there was a disclaimer that said, "Verify the accuracy of this information before relying on it." There is no evidence that appellant saw the MLS listing; all that he knew about the listing is what Heinen told him about it.

On Heinen's advice, appellant offered the full asking price for the property, and his offer was accepted on June 10. The offer was contingent on it being possible to split the parcel into three buildable lots with driveway access. ETOC was required to provide a certificate of survey showing the property divided into three lots, each with its own property identification number and legal description. Grand View hired Landecker & Associates, Inc. to prepare a survey and plat the property. Appellant filed a preliminary plat application before the closing date. The application included a lake survey prepared by Landecker, which reported about the lake in front of the property that the "bottom substrate consisted of sand and few cobbles from shore to a depth of 7.0 feet of water. From 7.0 to 10.0 feet of water the bottom substrate transitions to silty sand." The survey described the types of aquatic vegetation growing in those locations and noted that recent precipitation levels had been normal, and the survey included a wetland location map that showed significant wetlands on the lakefront.

Before the closing, appellant attended the first planning-commission hearing where the plat application was considered, and he described the hearing as "perfunctory." At the hearing, appellant noted that a strip of property near the lakeshore was designated as wetlands, which "concerned" him, but an unnamed person told him that "this would not impair access to the lake and therefore would not affect property values."

Appellant closed on the land purchase on July 25, 2008, and received a warranty deed; a corrective warranty deed was filed in October 2008 to correct errors in the legal description of the property conveyed. The legal descriptions in both the original deed and the corrective deed describe the western boundary of the property as "the West line of said Government Lot 1." A final plat of the property divided into three lots with driveway access and called Lendee First Addition was filed in November 2008.

In 2009, appellant spent some time clearing brush from the property. In 2010, he attempted to clear vegetation from the lake and discovered that the lake bottom was "dense muck and mud." The only area of sandy bottom that he discovered was ...

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