Statute of limitations Minn. Stat. § 541.05, Subd. 1, ran on breach of fiduciary duty claim- be mindful of tolling by fiduciaries

Hansen v. U.S. Bank, as Special Administrator and Personal Representative of the Estate of Robert J. Hansen, Filed July 2, 2018, A17-1608 (MN.App. 2018). Seller (and his brother) was to sell property to the City in 2009. The City was to provide Seller a 5 year forecast (compiled by a CPA or other independent financial consultant) projecting revenue that will be able to pay the City’s debt service to purchase the property. Seller died November, 2009 and the Court appointed U.S. Bank (and an individual) as special administrator of the estate. The purchase agreement was amended in April, 2010. No projections were presented to the seller and the closing on the sale took place in April, 2010. The special administration was closed and the estate opened. The City financing went under and by August, 2012, payments on the note to seller stopped. The heirs sued the bank in January, 2017 alleging breach of fiduciary duty. At issue is when the statute of limitations started to run. The Court found, applying the Antone v. Mirviss, 720 N.W.2d 331 (Minn. 2006) case, that “some damage” accrued when the sale closed in 2010 because they lost their right to the projections or to re-negotiate the contract. At that point the requirement of the City to give projections ended and the sale was complete. The contract became fixed. The suit against the bank was initiated more than 6 years after the close on the sale so the statute of limitations under Minn. Stat. §541.05, Subd. 1 had run on the case. In common law, a fiduciary can toll the SOL “for fraudulent misrepresentation by silence even though there was no evidence of fraudulent statements or intentional concealment.” Toombs v. Daniels, 361 N.W.2d 801 (Minn. 1985). But the record is void of any concealment even by silence. So the tolling argument is lost.

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