1 The Honorable Michael J. Davis, United States District Judge for the District of Minnesota. 

## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

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No. 05-1972

___________ Janice S. Hope, *

* Plaintiff - Appellant, * * v. * Appeal from the United States * District Court for the Mirek Klabal, also known as Miroslav * District of Minnesota. Klabal; Lynn G. Epsteen, also known as * Lynn Tescher, *

* Defendants - Appellees. *

___________ Submitted: March 14, 2006 Filed: August 7, 2006

___________ Before WOLLMAN, JOHN R. GIBSON, and ARNOLD, Circuit Judges.

___________ JOHN R. GIBSON, Circuit Judge.

Janice Hope appeals from two or ders of the district court 1 granting summary judgment to Mirek Klabal and Lynn Epsteen on her claims arising out of a series of art transactions. She allege s that she purchased artwor k from Klabal and Epsteen at fraudulently inflated prices and seeks some $10 million in damages. The district court ruled that all of Hope's claims were barre d by their respective statutes of limitations,-2- except with respect to a singl e art transaction between Hope and Klabal. Hope argues on appeal that the district court misapplied the discovery rule and the law of fraudulent concealment, erred in finding that the continuing tort doctrine did not apply, and erred in applying the law of the case when issuing its summary judgment order as to Epsteen. We affirm.

I.

We state the facts in the light most favorable to Hope. In 1984, Klabal approached Hope, a close friend of his wife, about purchasing investment art from him. Klabal held himself out as an art expe rt and told Hope thathe would be able to acquire art for her at prices substantially below fair market value. From 1984 through 1998, Hope purchased approximately 100 pieces of artwork from Klabal for a total of more than $8 million. These pieces include d works of art by major figures in the modern and pop art fields, including Pablo Picasso, Alexander Calder, Marc Chagall, Willem de Kooning, Roy Lichtenstein, Henri Matisse, and Andy Warhol. While a few of the individual purchases were priced below $10,000, Hope purchased many of the pieces for more than $100,000. For each piece, Klabal provided Hope with an invoice, a certificate of auth enticity, and an insurance ev aluation stating the "current international value" of the piece. These valu es exceeded the prices that Hope paid for the pieces. In many instances, Hope purch ased the artwork "sight unseen," based solely on Klabal's representations, and in certain instances Klabal never delivered works that Hope had purchased, claiming that he had found them to be forgeries, that he would trade them for more valuable pieces, or that it wa s in Hope's best interests for him to retain them.

Klabal also introduced Hope to Epsteen , who similarly represented that her expertise would enable her to obtain art for Hope at significant discounts. From 1987 through 1994, Hope purchased seven pieces of art from Epsteen for a total of over $2.1 million. Six of the pieces were wo rks by Andy Warhol, and one was a piece by-3- Pablo Picasso. Epsteen issued written invoices a nd certificates of authenticity for these pieces, along with a letter containing an appraisal "made solely for insurance purposes" and a statement describing how to obtain full appraisals from the Art Dealers Association of America. Again, as with the insurance evaluations obtained from Klabal, the amounts listed were much hi gher than what Hope actually paid for the pieces.

In 1997, Hope advised Klabal that she wanted to sell some of the art in order to diversify her investment portfolio. A lthough Klabal told Hope that he would make every effort to sell the art, no sales occurre d until a year or two later, when Hope was able to sell sixteen pieces at Sotheby's through Klabal and Epsteen. All but one piece of art was sold at a substantial loss. Hope later hired an independent art expert, Dr. Elin Lake Ewald, to evaluate 23 pieces that she had purchased from Klabal. Dr. Ewald completed a report in October 2000, concluding that Hope had purchased the artwork at prices significantly above fair market value at the times of purchase. Dr. Ewald also evaluated the wo rks Hope had purchased from Epsteen and advised her that six of the seven pieces were purchased at inflated prices.

On June 19, 2002, Hope filed a 45-page complaint against Klabal and Epsteen alleging fraud, conspiracy to defraud, breach of fiduciary duty, conversion, breach of contract, negligent misrepresentation, c onsumer fraud, deceptive trade practices, and violations of 18 U.S.C. § 1964 (RICO). Th e complaint listed more than one hundred pieces of art Hope had bought from Klabal, as well as the seven pieces of art she purchased from Epsteen. In lieu of an an swer, Epsteen filed a motion to dismiss, while Klabal answered and later filed a motion for summary judgment. Following a hearing, the magistrate judge issued a report and recommendation, later adopted by the district court, finding that Hope's claims against Epsteen should be dismissed without prejudice and that Klabal's moti on for summary judgment should be granted except with respect to a single transaction that was not barred by the statute of limitations. In that transaction, which occu rred in 1998, Hope traded a work by Jean-2 This procedure of submitting such a lengthy, detailed ve rified complaint is not one that we recommend, but it certainly enlarges the factual basis underlying the district court's entry of summary judgment against Hope.

-4- Michel Basquiat that she already owned for a painting by Marc Chagall entitled "Le Couple Allonge." Hope then served an ame nded verified complaint, totaling some 147 pages, including 73 pages of exhibits and affidavits, on Epsteen, and Epsteen moved for summary judgment. 2 The magistrate judge issued a second report and recommendation finding that Epsteen's motion should be granted as to all of Hope's claims. The district judge adopted this report and recommendation, and it denied Hope's request to certify the judgment for immediate appeal under Fed. R. Civ. P. 54(b).

As a result of the two summary judgment orders, the only claims remaining in the case related to the single transaction between Hope and Klabal in 1998 which had survived the first summary judgment order. Klabal agreed to enter into a stipulation dismissing these remaining claims, and the parties filed the stipulation with the court under Fed. R. Civ. P. 41. Pursuant to this stipulation, the district court entered an order dismissing the remaining claims without prejudice. Hope now appeals from the two summary judgment orders.

II.

In light of the peculiar procedural posture of this case, we must first determine whether we have jurisdiction over the appeal. Thomas v. Basham , 931 F.2d 521, 523 (8th Cir. 1991). The jurisdiction of the fede ral appellate courts is limited to appealsfrom final decisions of the district courts, 28 U.S.C. § 1291, subject to the wellestablished exceptions set forth in 28 U.S.C . § 1292, Fed. R. Civ. P. 54(b), and the collateral order doctrine. Reinholdson v. Minnesota , 346 F.3d 847, 849 (8th Cir. 2003). Because none of these exceptions apply to the facts of this case, we must-5- address whether the district court's summary judgment orders as to Klabal and Epsteen, coupled with the dismissal of th e remaining claims in the case, which happened to involve only Klabal, together constitute a "final decision" for purposes of § 1291. In other words, the question is whether the voluntary dismissal of the only claims that survived the earlier partial summary judgment orders was sufficient to make those orders final for purposes of this appeal.

A final decision requires "some clear a nd unequivocal manifestation by the trial court of its belief that the decision made, so far as [the court] is concerned, is the end of the case." Goodwin v. United States , 67 F.3d 149, 151 (8th Cir. 1995). We are guided by the rule that the requirement of finality under § 1291 is given a "practical rather than a technical construction." Cohen v. Beneficial Indus. Loan Corp. , 337 U.S. 541, 546 (1949). In addition, the Supreme C ourt long ago established that a dismissal without prejudice can create an appealable final order if it ends the suit so far as the district court is concerned. See United States v. Wallace & Tiernan Co. , 336 U.S. 793, 794 n.1 (1949).

Admittedly, this circuit has been less than clear in establishing the rules for finality when parties dismiss some of their claims without prejudice in order to appeal a partial summary judgment order or an in terlocutory order of dismissal. See generally Terry W. Schackmann & Barry L. Pick ens, The Finality Trap: Accidentally Losing Your Right to Appeal (Part II) , 58 J. Mo. B. 138, 142-45 (2002) (collecting cases). However, in Chrysler Motors Corp. v. Thomas Auto Corp. , 939 F.2d 538, 540 (8th Cir. 1991), we assumed juri sdiction over an appeal in a similar situation. In that case, the district court granted a motion for partial summary judgment but did not issue a Rule 54(b) certification. The parties later filed a stipulation of dismissal of all remaining claims without prejudice under Fed. R. Civ. P. 41, and the court entered an order of dismissal, as it did he re. We held that the effectof the dismissal was to make the earlier partial summary judgment "a fi nal judgment for purposes of appeal, even-6- though the district court had not so certifiedunder Fed. R. Civ. P. 54(b)." 939 F.2d at 540.

We have since expressed concern that parties will use the voluntary dismissals of their claims without prejudice as an "end-run" around Rule 54(b), and in one instance we assumed jurisdiction over th e appeal but deemed the dismissal of remaining claims to be with prejudice. Minnesota Pet Breeders, Inc. v. Schell & Kampeter, Inc. , 41 F.3d 1242, 1245 (8th Cir. 1994) (commenting that the parties "badly miscalculated" if they assumed they could later revive the dismissed claims); see also Orion Fin. Corp. v. Am. Foods Group, Inc. , 201 F.3d 1047, 1048-49 (8th Cir. 2000) (dismissing appeal for lack of fina lity where parties entered a stipulation following partial summary judgment order becau se the parties intended to revive those issues later and were "play[i ng] fast and loose with the limited appellate resources that we have.").

Nonetheless, many of our cases conti nue to follow the rule established in Chryslerand state that jurisdiction exists unde r the circumstances that we face here, without opining on whether the dismissed claims should be deemed dismissed with prejudice. See, e.g. , Great Rivers Coop. of South eastern Iowa v. Farmland Indus.,
Inc. , 198 F.3d 685, 690 (8th Cir. 1999) ("Though we strongly disapprove of this use of a dismissal without prejudice to create what is in substance an impermissible interlocutory appeal, our prior case law did not foreclose that effort here."); Morris v. Crawford County, Ark. , 299 F.3d 919, 921 (8th Cir. 2002) (partial summary judgment followed by voluntary dismissal of remaining claims without prejudice "had the dual effect of resolving all claims ag ainst the defendants and bestowing us with appellate jurisdiction"); Porter v. Williams , 436 F.3d 917, 920 (8th Cir. 2006) ("[A] partial summary judgment becomes a final judgment once the remaining parts of the case are dismissed or otherwise resolved ."); Acton v. City of Columbia, Mo. , 436 F.3d 969, 974 (8th Cir. 2006) ("[I]f the firefighters had voluntarily dismissed their meal-7- allowance and willfulness claims, this di smissal would have rendered the district court's [partial summary judgment] order unquestionably final.").

The procedural posture of this appeal is most closely analogized to that in Chrysler , and so we conclude that the volunt ary dismissal of the remaining claims made the two earlier summary judgment orders final for purposes of this appeal. After the voluntary dismissal, there was nothing left for the district court to resolve, and the suit had ended as far as that court was concerned, ther eby creating a final judgment. We now turn to the merits of Hope's arguments.

III.

We review a grant of summary judgmen t de novo. Klehr v. A.O. Smith Corp.
, 87 F.3d 231, 234 (8th Cir. 1996). Summary judgment is appropriate if the record, when viewed in the light most favorable to the nonmoving party, reveals that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). Minnesota law applies in this diversity case, and we review the district court's interp retation of that law de novo. Bockelman v. MCI Worldcom, Inc. , 403 F.3d 528, 531 (8th Cir. 2005). We are bound by decisions of the Minnesota Supreme Court, and if th at court has not considered an issue, we must follow decisions of the Minnesota Court of Appeals if they are the best evidence of Minnesota law. Id.

A.

Hope first argues that the district court misapplied the discovery rule and the law of fraudulent concealment as they relate to whether the statute of limitations had expired for her fraud, breach of fiduciary duty, and RICO claims. Under Minnesota law, common law fraud and breach of fiduciary duty claims are governed by a sixyear statute of limitations, while RICO clai ms have a four-year statute of limitations.-8- Minn. Stat. Ann. § 541.05, subd. 1(6); Anderson v. Anderson , 197 N.W.2d 720, 726 (Minn. 1972); Rotella v. Wood , 528 U.S. 549, 552 (2000). Accordingly, absent a delay in the beginning of the limitations period, Hope's claims are time-barred. Epsteen's most recent sale to Hope wa s on December 5, 1994; thus, all of Hope's claims against Epsteen became time-barred on December 5, 2000. Other than the 1998 transaction involving "Le Couple Allonge", which is no longer at issue in the case because of the parties' stipulation, the last sale by Klabal occurred on January 22, 1996, so Hope's claims against him became time-barred, at the latest, on January 22, 2002. Hope did not bring her original complaint until June 19, 2002.

Nonetheless, fraud, breach of fiduciary, a nd RICO claims are all subject to the "discovery rule," which dictates that th e limitations period begins to run "when the facts constituting fraud were discovered or, by reasonable diligence, should have been discovered." Toombs v. Daniels , 361 N.W.2d 801, 809 (Minn. 1985); see also Anderson , 197 N.W.2d at 726 (breach of fiduciary duty); Rotella , 528 U.S. at 553-54 (RICO). If the parties were in a fiduciary relationship, delay in discovering the fraud may be excusable. Toombs , 361 N.W.2d at 809. Ordinarily, a plaintiff's due diligence and the existence of a fiduciary re lationship will be questions of fact for a jury, but "[w]here the evid ence leaves no room for a reasonable difference of opinion ... the court may properly resolve fact issues as a matter of law." Veldhuizen v. A.O. Smith Harvestore Prods., Inc. , 839 F. Supp. 669, 674-75 (D. Minn. 1993) (citing Miles v. A.O. Smith Harvestore Prods., Inc. , 992 F.2d 813, 817 (8th Cir. 1993)). The district court, adopting the report and recommendati ons of the magistrate judge, concluded as a matter of law that Hope was not dilig ent in discovering her cause of action and that Klabal and Epsteen had not acted as Hope's fiduciaries.

Hope argues that she created a genuine i ssue of material fact as to whether Klabal and Epsteen were her fiduciaries and that therefore her delay in discovering her claims was excusable. She alleges that she had never purchased any art as an investment before buying art from Klabal a nd Epsteen and that she relied entirely on-9- their advice to inform her of the value, nature, significance and quality of each piece of artwork. She claims that both defenda nts solicited and accepted her trust in their art expertise. Hope also contends thatbecause she developed personal friendships with both Klabal and Epsteen, she was en titled to place her trust and confidence in them.

State law determines whether a fiduciary relationship exists, Davis v. Merrill Lynch, Pierce, Fenner & Smith, Inc. , 906 F.2d 1206, 1215 (8th Cir. 1990), and under Minnesota law a "fiduciary relationship exis ts 'when confidence is reposed on one side and there is resulting superiority and influe nce on the other; and the relation and duties involved in it need not be legal, but may be moral, social, domestic, or merely personal.'" Toombs , 361 N.W. at 809 (quoting Stark v. Equitable Life Assurance Soc'y , 285 N.W. 466, 470 (Minn. 1939). Howeve r, a fiduciary relationship is not established under Minnesota la w in the context of commercial transactions simply by a long acquaintance between the parties or by the plaintiff having faith and confidence in the defendant where the plaintiff should have known the defendant was representing an adverse interest. See, e.g. , Wells-Dickey Trust Co. v. Lien , 204 N.W. 950, 952-53 (Minn. 1925) (seller of property did not have a fiduc iary duty to a buyer, even where the parties were intimate and longtime friends a nd the seller served as the executor of the buyer's husband's estate); Stark , 285 N.W. at 470 (absent a policy provision explicitly assuming a duty to the plaintiff, an insurance agent would not have had a fiduciary duty to a plain tiff who was illiterate, had limited business experience, and had been close friends and business acquaintances with the agent for years).

We are persuaded that no fi duciary relationship was pr esent here. Hope did not produce any evidence indicating that Klabal or Epsteen explicitly assumed a duty to protect Hope's rights or that they had access to her finances or control over her decisions, thereby distinguishing their relationship from those where Minnesota courts have tolled the statute of limitations for fraud based on a fiduciary relationship. See,-10- e.g. , Toombs , 361 N.W.2d at 809 (between a trustee and a beneficiary); Cohen v. Appert , 463 N.W.2d 787, 790 (Minn. Ct. App. 1990) (between an attorney and a client); Appletree Square I Lt d. P'ship v. Investmark, Inc. , 494 N.W.2d 889, 892 (Minn. 1993) (between partners in a partnership); Murphy v. Country House Inc. , 240 N.W.2d 507, 512 (Minn. 1976) (between direct ors of a corporation). The Minnesota Supreme Court has stated on numerous occasions that a fri endship between the parties does not elevate an arms-length, commercia l transaction to a fiduciary relationship. See, e.g. , Kennedy v. Flo-Tronics, Inc. , 143 N.W.2d 827, 830 (Minn. 1966); Shema v. Thorpe Bros. , 62 N.W.2d 86, 91 (Minn. 1954); Stark , 285 N.W. at 470; WellsDickey Trust , 204 N.W. at 952. While Hope wa s not particularly knowledgeable about the art market, she admits to being a sophisticated business person and she should have known that Klabal and Epsteen represented an adverse interest. See Amended Complaint ¶ 77. Th erefore, under Minnesota law, Hope has not raised a genuine issue of material factas to whether Klabal and Epsteen were her fiduciaries, and the statute of limitations for her claims cannot be tolled on this ground.

Hope's alternative argument is that she created a genuine issu e of material fact as to whether she could ha ve discovered the fraud through the exercise of reasonable diligence within six years of bringi ng her claims. Bustad v. Bustad , 116 N.W.2d 552, 555 (Minn. 1962). "The mere fact that th e aggrieved party did not actually discover the fraud will not extend the statutory limitati on, if it appears that the failure sooner to discover it was the result of negligence, and inconsistent with reasonable diligence." Id. (citing First Nat. Bank of Shakopee v. Strait , 73 N.W. 645, 646 (Minn. 1898)). Even if Hope presents evid ence that the defendants affirm atively concealed the initial fraud, she bears the burden of proving that she could not, through reasonable diligence, have discovered the facts constitu ting the fraud until within six years of the commencement of the action. See Blegen v. Monarch Life Ins. Co. , 365 N.W.2d 356, 357 (Minn. Ct. App. 1985); see also Klehr v. A.O. Smith Corp ., 521 U.S. 179, 194 (1997) (in RICO context, a plaintiff who is not reasonably diligent may not raise fraudulent concealment to toll the statute of limitations).-11- Hope argues that she exercised reas onable diligence in discovering the fraud. She contends that she had no reason to i nvestigate whether she had a claim prior to 2000 because Klabal and Epsteen's fraud was "by its nature and design selfconcealing," in that the pair misrepresent ed the nature and qua lities of the art they sold, continually assured her that she was purchasing the artwork at prices below fair market value, praised each other's professed expertise and trustworthiness, and issued fraudulent insurance evaluations for her pur chases. In addition, she alleges that Klabal discouraged her from selling her art th rough others and, in order to conceal the fraud, told her that Sotheby's was wrong wh en it appraised the art at lower prices. Hope states that these actions "removed any incentive [she] may have had to suspect misconduct or to investigate the possibility that she had any claim against either Defendant."

We conclude that Hope ha s failed to create a genuine issue of material fact as to her diligence in discovering the alleged fraud. Hope, a sophisticated business person, spent a total of $10 million on artwork, much of which was purchased "sight unseen" or never delivered, w ithout independently confirming the value of the works she was purchasing either before or after th e transactions. She was on notice that the insurance valuations provided to her by Klabal and Epsteen were not statements of the pieces' fair market value and that full appraisals could be obtained through the Art Dealers Association of America. Hope ad mits in her complaint as to Klabal that contemporary art pricing was available, and concedes as to both defendants that she was able to hire an indepe ndent expert to appraise the value of her purchases. In addition, Dr. Ewald's affidavit states that auction houses, if provided with a work of art or a clear photograph, will "identify three comparable works from the house's or a comparable house's sales records which were sold in that year, if available." Once Hope decided to hire an independent art appr aiser, Dr. Ewald was able to ascertain the appropriate values of the work s, so had Hope enga ged the services of an art appraiser earlier she could have discovered that she had been overcharged. Cf. Barry v. Barry 78 F.3d 375, 380 (8th Cir. 1996) (plaintiff created genuine issue of fact as to her-12- diligence under Minnesota law where she hire d attorneys and a fi nancial advisor to advise her about a company's financial position, but the advisors were unable to discover the company's true financial c ondition because of affirmative fraudulent concealment). Furthermore, the price of the artwork Hope purchased was not so low that getting a second opinion would have been financially prohibitive. Cf. Balog v. Center Art Gallery- Hawaii, Inc. , 745 F. Supp. 1556 (D. Haw. 1990) (discovery rule applied where the sellers' actions and th e low price of the artwork effectively precluded the buyers from hiring an independent evaluator). While Hope contends that she could not have discovered that she paid inflated prices for the works because Klabal and Epsteen fraudulently concealed their actions, nothing Klabal or Epsteen did prevented her from having the art appr aised and they were not in exclusive possession of pricing information for the pieces. See Marvin Lumber& Cedar Co. v. PPG Indus., Inc. , 223 F.3d 873, 878 (8th Cir. 2000) (where a plaintiff has access to the facts that would make out the cause of action, the plaintiff has not been reasonably diligent). The Minnesota courts deem facts to have been discovered when "with reasonable diligence, they could and ought to have been discovered." Blegen , 116 N.W.2d at 357. Through the exercise of reasonable diligence, Hope could have discovered that she was paying inflated pri ces for the artwork more than six years before she brought her claims, and the distri ct court did not err in finding as a matter of law that her claims were barred by the statute of limitations.

B.

Hope also contends that the district court erred in finding that the continuing tort doctrine did not toll the statute of limitations. She argues that Klabal and Epsteen's conduct constituted an ongoing fraud because they urged her to make many investments in order to achieve a significant and balanced portfolio of art. Under the continuing tort doctrine, the final act is used to determine when the statute of limitations period begins for the entire course of conduct. See Mille Lacs Band of Chippewa Indians v. Minnesota , 853 F. Supp. 1118, 1126 (D. Minn. 1994). However,-13- a plaintiff who is merely "feeling the pres ent effects" of a past wrongful act may not avoid the statute of limitations. Id. Minnesota courts have held that where each transaction is separate, distinct, and coul d have been challenge d by a plaintiff, the continuing tort doctrine does not apply. See Davies v. West Pub. Co. , 622 N.W.2d 836, 842 (Minn. 2001) (sixteen stock distri butions made over a period of years were discrete acts not tolling the statute of limita tions). Each of th e sales to Hope was individually priced and insured, and the transactions occurred over a period of many years. Consequently, the district court did not err in failing to toll the limitations period under the continuing tort doctrine.

C.

Finally, Hope argues that the district c ourt erred in applying the law of the case doctrine when granting summary judgment to Epsteen. When the magistrate judge issued his report and recommendation on Epsteen's motion for summary judgment, he declined to reconsider his prior conclusions that (1) Klabal was not Hope's fiduciary; (2) Klabal did not engage in fraudulent c oncealment because Hope was not diligent in seeking to discover her cau se of action; (3) Epsteen and Klabal’s actions did not amount to a continuing tort because each pur chase of art was a distinct transaction; and (4) Klabal and Epsteen did not engagein conspiracy to defraud Hope. Hope's argument that the magistrate judge used these earlier rulings to preclude her claims against Epsteen is without merit. In deciding that Epsteen was entitled to summary judgment, the magistrate judge thoroughly reviewed Hope's amended complaint and conducted an independent analysis of whether Hope used due diligence in discovering her claims against Epsteen, whether Epst een engaged in fraudulent concealment, and whether Epsteen acted as Hope's fiduciary. The magistrate judge declined to reconsider the argument that Klabal and Epsteen's conduct amounted to a continuing tort in light of the fact that Hope's amended complaint did not present any new evidence that would change its earlier conclu sion that each art sale was a separate and discrete transaction. We conclude that there was no error on this ground.-14- IV.

For the foregoing reasons, we affirm the judgment of the district court.

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