This opinion will be unpublished and 

may not be cited except as provided by 

Minn. Stat. § 480A.08, subd. 3 (2014). 

STATE OF MINNESOTA 

IN COURT OF APPEALS 

A15-1154 

Kenneth S. Benigni, 

Appellant, 

vs. 

St. Louis County, 

Respondent, 

State of Minnesota, 

by Department of Human Services, 

Respondent, 

Lake Superior Community Health Center, 

Respondent. 

Filed June 13, 2016 

Affirmed 

Stauber, Judge 

St. Louis County District Court 

File No. 69DU-CV-13-1931 

Peter J. Nickitas, Peter J. Nickitas Law Office, L.L.C., Minneapolis, Minnesota (for 

appellant) 

Mark Rubin, St. Louis County Attorney, Nicholas D. Campanario, Assistant County 

Attorney, Duluth, Minnesota (for respondent St. Louis County) 

Lori Swanson, Attorney General, Aaron E. Winter, Assistant Attorney General, St. Paul, 

Minnesota (for respondent Department of Human Services) 

Kevin C. Riach, Anupama D. Sreekanth, Ryan C. Young, Fredrickson & Byron, P.A., 

Minneapolis, Minnesota (for respondent Lake Superior Community Health Center) 

 Considered and decided by Ross, Presiding Judge; Johnson, Judge; and Stauber, 

Judge. 
2 

U N P U B L I S H E D O P I N I O N 

STAUBER, Judge 

 Appellant recipient of medical-assistance benefits brought claims for promissory 

estoppel, negligent misrepresentation, consumer fraud, and data-practices violations 

against his medical provider, the county, and the state, after he learned that the receipt of 

medical-assistance benefits could lead to a claim against his estate or a lien against his 

real-property interests. The district court dismissed all of appellant’s claims as timebarred, except his negligent misrepresentation claim against the county. The district 

court also ruled in the alternative that some of appellant’s claims failed to state a claim 

upon which relief could be granted. The district court then granted summary judgment to 

the county on appellant’s negligent misrepresentation claim. Appellant challenges each 

ruling and argues that reversal is also required because the district court was biased. We 

affirm. 

FACTS 

 In June 2004, appellant Kenneth S. Benigni applied for medical assistance (M.A.) 

through respondent Lake Superior Community Health Center (LSCHC) in Duluth. 

According to appellant, the individual assisting him with the M.A. application form 

removed a six-page section of the form without showing it to appellant. This section of 

the form included information about the state’s ability to place a lien on appellant’s 

property to recoup appellant’s share of his M.A. 

 At some point in 2005, appellant received a M.A. renewal application form. The 

renewal application form contained the “Notice of Privacy Practices and 
3 

Responsibilities” section, which states that “[t]he state or county may try to recover the 

cost of medical services that MA . . . paid for you. They do this by filing a claim against 

your estate or by filing a lien against your real property.” 

 After receiving the 2005 renewal form, appellant contacted Kathy Pavolwich, his 

social worker with respondent St. Louis County (county), and “requested information 

concerning the sum that St. Louis County . . . or the state . . . had paid out to date to the 

insurance company relating to [appellant’s] M.A. account.” Appellant also requested 

“complete clarification concerning the ‘lien and estate claims’ that the state or county 

may . . . try to attach, to recover the cost of medical services that M.A. paid for 

[appellant].” According to appellant, he then “relied on” Pavolwich’s assurances that 

“the stated lien claims would not apply to him.” But despite his alleged reliance on 

Pavolwich’s assurances, appellant “made numerous requests for access to data” to the 

county and respondent Minnesota Department of Human Services (DHS) under the 

Minnesota Government Data Practices Act (MGDPA) to “ascertain the nature and extent 

of a potential lien or claim against his property and estate.” 

 In July 2007, appellant contacted Patti Theno, his county case worker, and 

requested that his M.A. account be canceled due to a potential lien being attached against 

his estate. Theno told appellant that he had nothing to worry about because no lien would 

be placed on his estate. Appellant subsequently contacted Ina Minehan at DHS who 

informed him that Theno’s representations were incorrect. Appellant then made several 

calls over the course of the next few days in an attempt to learn whether a lien could be 

placed on his estate to recover the amount he received in M.A. benefits. During this 
4 

process, appellant spoke with Theno’s supervisor, Renee Selleck on July 31, 2007, who 

informed appellant that the only time recoupment of M.A. benefits is sought is if the 

recipient is “not entitled to [M.A. benefits].” 

 Despite Selleck’s representations, appellant sought further clarification. Appellant 

again spoke with Minehan who stated that the government “does put liens on estates to 

recover M.A. expenditures.” Appellant subsequently contacted Selleck on August 3, 

2007, who informed appellant that she “was wrong” and that his M.A. benefits were 

subject to recovery through liens and estate claims. Appellant then canceled his M.A. 

 In July 2012, appellant received a “Claims History Profile” from DHS indicating 

an accumulation of approximately $20,000 on his M.A. account. A year later, appellant 

brought this action against the county alleging that he was damaged when he received 

M.A. benefits because he was not informed of the state’s ability to place a lien against his 

property for unpaid amounts. Appellant subsequently amended his complaint twice, the 

second time adding DHS and LSCHC as defendants. In the second amended complaint, 

appellant asserted the following claims: (1) promissory estoppel against DHS; LSCHC, 

and the county1

; (2) negligent misrepresentation against the county; (3) violation of 

MGDPA against all respondents; (4) a second negligent misrepresentation claim against 

DHS and LSCHC; (5) intentional misrepresentation against LSCHC; and (6) a claim 

under Minn. Stat. §§ 325F.67-.70 (2014) against LSCHC for false advertising and 

consumer fraud. 

 

1

 DHS, LSCHC, and the county will hereinafter be collectively referred to as 

“respondents.” 
5 

 DHS and LSCHC moved to dismiss counts I, III, IV, V, and VI of appellant’s 

second amended complaint for failure to state a claim under Minn. R. Civ. P. 12.02(e). 

The county moved for partial judgment on the pleadings under Minn. R. Civ. P. 12.03 on 

the same counts. The district court found that respondents “each argue variations on the 

same themes in their quests for dismissal of this matter,” and that “primary to the various 

[respondents’] contentions are statute of limitations arguments.” The district court 

concluded that under the damage-accrual rule, appellant’s claims against respondents 

were barred by the statute of limitations. The district court also concluded that 

appellant’s claim against respondents for promissory estoppel (count I), and his claim 

against LSCHC and DHS for negligent misrepresentation (count IV), fail to “set forth . . . 

legally sufficient claim[s] for relief and dismissal is appropriate because it appears to a 

certainty that no facts exist which would support granting the relief demanded.” Thus, 

the district court granted LSCHC and DHS’s motions to dismiss and the county’s motion 

for judgment on the pleadings, and dismissed with prejudice counts I, III, IV, V, and VI 

of the second amended complaint. 

 In March 2014, the county moved for summary judgment on appellant’s negligent 

misrepresentation claim, count II, the only remaining count in the second amended 

complaint. The district court determined that (1) because the county employees made 

misrepresentations of law, they cannot be the subject of a negligent misrepresentation 

lawsuit and (2) appellant is unable to prove justifiable reliance on the statements of the 

county employees. Thus, the district court granted the county’s motion for summary 

judgment. This appeal followed. 
6 

D E C I S I O N 

I.

Minn. R. Civ. P. 12.02(e) allows a defendant to move to dismiss for “failure to 

state a claim upon which relief can be granted.” Under this rule, “a pleading will be 

dismissed only if it appears to a certainty that no facts, which could be introduced 

consistent with the pleading, exist which would support granting the relief demanded.” 

N. States Power Co. v. Franklin, 265 Minn. 391, 395, 122 N.W.2d 26, 29 (1963). No 

facts exist which would support granting the relief demanded “when it is clear and 

unequivocal from the face of the complaint that the statute of limitations has run on . . . 

the claims asserted.” Jacobson v. Bd. of Trs. of the Teachers Ret. Ass’n, 627 N.W.2d 

106, 109 (Minn. App. 2001), review denied (Minn. Aug. 15, 2001). 

Any party may move for judgment on the pleadings “[a]fter the pleadings are 

closed.” Minn. R. Civ. P. 12.03. The standard for relief under rule 12.03 is similar to the 

standard under rule 12.02(e): “To withstand a motion for judgment on the pleadings, [a 

plaintiff] must state facts that, if proven, would support a colorable claim and entitle it to 

relief.” Midwest Pipe Insulation, Inc. v. MD Mech., Inc., 771 N.W.2d 28, 31 (Minn. 

2009). “When a case is dismissed . . . for failure to state a claim for which relief can be 

granted, [an appellate court] review[s] the legal sufficiency of the claim de novo to 

determine whether the complaint sets forth a legally sufficient claim for relief.” Graphic 

Commc’ns Local 1B Health & Welfare Fund A v. CVC Caremark Corp., 850 N.W.2d 

682, 692 (Minn. 2014). 
7 

Appellant challenges the district court’s dismissal of counts I, III, IV, V, and VI of 

his second amended complaint, arguing that the district court erred by concluding that 

(1) these claims were barred by the statute of limitations and (2) in the alternative, 

appellant’s claim against respondents for promissory estoppel and his claim against DHS 

and LSCHC for negligent misrepresentation fail to state claims upon which relief could 

be granted. 

The parties agree that appellant’s claims are subject to the six-year statute of 

limitations period set forth in Minn. Stat. § 541.05, subd. 1 (2014). “The statute of 

limitations begins to run on a claim when ‘the cause of action accrues.’” Park Nicollet 

Clinic v. Hamann, 808 N.W.2d 828, 832 (Minn. 2011) (quoting Minn. Stat. § 541.01 

(2010)). “A cause of action accrues when all of the elements of the action have occurred, 

such that the cause of action could be brought and would survive a motion to dismiss for 

failure to state a claim.” Id. We review “de novo the construction and application of a 

statute of limitations, including the law governing the accrual of a cause of action.” Sipe 

v. STS Mfg., Inc., 834 N.W.2d 683, 686 (Minn. 2013) (quotation omitted). 

Minnesota follows the damage-accrual rule. Antone, 720 N.W.2d at 336. Under 

this rule, the statute of limitations begins to run as soon as “some” damage has occurred 

as a result of the alleged action. Hermann v. McMenomy & Severson, 590 N.W.2d 641, 

643 (Minn. 1999). “The running of the statute does not depend on the ability to ascertain 

the exact amount of damages.” Id. Minnesota caselaw supports a broad interpretation of 

“some” damage. Antone v. Mirviss, 720 N.W.2d 331, 336 (Minn. 2006). 
8 

Counts I, III, IV, V, and VI of appellant’s second amended complaint all arise out 

of appellant’s application for and receipt of M.A. benefits. Appellant’s alleged damage is 

his receipt of M.A. benefits because that is the action that conferred on the state the 

ability to place a lien on his estate. Because appellant began receiving M.A. benefits in 

September 2004, the statute of limitations on counts I, III, IV, V, and VI began to run at 

that time. Appellant did not file his complaint against the county until July 2013, and 

DHS and LSCHC were not added to the lawsuit until February 2014. These complaints 

were filed long after the six-year statute of limitations had expired. Therefore, the district 

court correctly concluded that they were untimely. 

Appellant argues that the district court erred by concluding that claims I, III, IV, 

V, and VI were time-barred because respondents’ “ongoing fraudulent concealment of 

the [M.A.] statutory lien information from [him] tolled the statute of limitations” on those 

claims. We acknowledge that fraudulent concealment of facts tolls limitation periods. 

Cohen v. Appert, 463 N.W.2d 787, 790-91 (Minn. App. 1990), review denied (Minn. Jan. 

24, 1991). But fraudulent concealment tolls the statute of limitations only “until the party 

discovers, or has a reasonable opportunity to discover the concealed defect.” HydraMac, Inc. v. Onan Corp., 450 N.W.2d 913, 918 (Minn. 1990). It is not necessary that a 

party “know the details of the evidence establishing the cause of action, only that the 

cause of action exists. When a party has this knowledge, it is his own fault if he does not 

avail himself of those means which the law provides for prosecuting or preserving his 

claim.” Id. at 919 (quotation omitted). 
9 

Appellant’s second amended complaint states that he “had no awareness of the 

consequence of the attachment of the lien, until his receipt of the 2005 renewal 

application form, appearing as Exhibit B.” Exhibit B to the complaint provides that the 

“state or county may try to recover the cost of medical services that MA . . . paid for you 

. . . by filing a lien against your real property.” Thus, when he received the M.A. renewal 

application form in 2005, appellant knew that the state could place a lien on his property 

to recoup his M.A. Although appellant suggests that the 2005 form is insufficient 

because it fails to state that the lien requirement is necessary, such a distinction is 

immaterial because regardless of whether it was mandatory, appellant was apprised of the 

state’s ability to place a lien on his property, which is the power that appellant claims was 

concealed from him. Therefore, by his own admission, appellant knew or should have 

known of the alleged concealment and facts giving rise to his claim as early as 2005 

when he received the 2005 renewal application form. Because he knew of these facts in 

2005, the six-year statute of limitations on appellant’s claim expired in 2011, two years 

before appellant filed his complaint. Accordingly, the district court did not err by 

dismissing counts I, III, IV, V, and VI of the second amended complaint. And because 

we conclude that appellant’s claims are time-barred, we need not address the district 

court’s alternative conclusion that appellant’s claims against respondents for promissory 

estoppel and his claim against DHS and LSCHC for negligent misrepresentation fail to 

state claims upon which relief could be granted. 

 
10 

II.

A district court must grant a motion for summary judgment if the evidence 

demonstrates “that there is no genuine issue as to any material fact and that either party is 

entitled to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. A genuine issue of 

material fact exists if a rational trier of fact, considering the record as a whole, could find 

for the non-moving party. Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564 

(Minn. 2008). We apply a de novo standard of review to the district court’s legal 

conclusions on summary judgment and view the evidence in the light most favorable to 

the non-moving party. RAM Mut. Ins. Co. v. Rohde, 820 N.W.2d 1, 6 (Minn. 2012); Day 

Masonry v. Indep. Sch. Dist. 347, 781 N.W.2d 321, 325 (Minn. 2010). 

 Negligent misrepresentations of fact may be actionable against government 

officers and employees to the extent that they involve misrepresentations as to “factual 

information maintained by the government” to which members of the public have no 

other access except through government officers and employees. Mohler v. City of St. 

Louis Park, 643 N.W.2d 623, 637 (Minn. App. 2002), review denied (Minn. July 16, 

2002). A misrepresentation of law, however, is not actionable. Northernaire Prods., Inc. 

v. County of Crow Wing, 309 Minn. 386, 388-89, 244 N.W.2d 279, 281 (1976). The 

rationale for this rule is that the law is presumed to be equally within the knowledge of 

the parties. Miller v. Osterlund, 154 Minn. 495, 496, 191 N.W. 919, 919 (1923). The 

rule of nonactionability has two exceptions: (1) where the “person misrepresenting the 

law is learned in the field and has taken advantage of the solicited confidence of the party 
11 

defrauded” and (2) where a fiduciary or other similar relationship exists between the 

parties. Northernaire Prods., 309 Minn. at 389, 244 N.W.2d at 281-82. 

 Appellant’s negligent misrepresentation claim against the county is based on 

statements made by Theno and Selleck, who allegedly “supplied false information to 

[appellant] relating to the expenditure of monies for M.A. medical services, and the 

resulting lien or claim to attach to [appellant’s] estate or real property.” But appellant 

does not dispute that the statements made by Theno and Selleck were legal 

representations, nor does he claim that Theno and Selleck are “learned” in the field. 

Instead, he argues that the district court erred by granting summary judgment in favor of 

the county because the issue of whether there was a fiduciary relationship between 

appellant and Theno and Selleck involves “fact questions that the jury must decide.” 

 “Ordinarily, the existence of a fiduciary relationship would be a question for the 

trier of fact.” Northernaire Prods., 309 Minn. at 389, 244 N.W.2d at 282. “A fiduciary 

relation exists when confidence is reposed on one side, and there is resulting superiority 

and influence on the other.” Stark v. Equitable Life Assurance Soc’y, 205 Minn. 138, 

145, 285 N.W. 466, 470 (1939) (quotation omitted). Simply reposing faith and 

confidence in a person does not create a fiduciary duty. Id.

 In Northernaire Prods., the plaintiffs, promoters of a rock concert, sued Crow 

Wing County and its employees after the plaintiffs were erroneously advised of the 

zoning requirements for the area where they had planned to stage a concert. 309 Minn. at 

387-88, 244 N.W.2d at 280. In affirming the dismissal of the complaint, the supreme 

court held “as a matter of law,” that the “individual defendants, solely by virtue of their 
12 

offices and in the absence of other facts evidencing an intent to assume such an 

obligation, owe no fiduciary duty to members of the public when giving advice.” Id. at 

389, 244 N.W.2d at 282. The supreme court elaborated that its 

holding is based on considerations of public policy. There is 

no dispute that the alleged misrepresentations were made in a 

good-faith effort to respond to plaintiffs’ inquiries. Plaintiffs 

concede that defendants acted without malice or intent to 

deceive. To subject county officials to the prospect of liability 

for innocent misrepresentation would discourage their 

participation in local government or inhibit them from 

discharging responsibilities inherent in their offices. Their 

reluctance to express opinions would frustrate dialogue which 

is indispensable to the ongoing operation of government. 

Id. at 389-90, 244 N.W.2d at 282. And the court noted that the plaintiffs “had alternative 

means of obtaining an interpretation of the zoning ordinance, either by consulting an 

attorney or by applying . . . for a formal interpretation pursuant to established 

procedures.” Id. at 390, 244 N.W.2d at 282. 

 As in Northernaire Prods., appellant does not claim that the county employees 

acted in bad faith, nor is there any evidence supporting such an allegation. Moreover, 

appellant could have sought advice from an attorney regarding the legal issue of whether 

the state could attach a lien to his estate after he began to receive M.A. benefits. In fact, 

appellant ultimately sought further legal advice on the issues when he contacted DHS. 

Thus, as in Northernaire Prods., there is simply no evidence to support the existence of a 
13 

fiduciary relationship between appellant and Theno and Selleck. The district court did 

not err by granting summary judgment in favor of the county.2

III.

 In evaluating a claim of judicial bias, there is a “presumption that a [district] court 

judge has discharged his or her judicial duties properly,” and a party alleging bias has the 

burden to establish allegations sufficient to overcome this presumption. McKenzie v. 

State, 583 N.W.2d 744, 747 (Minn. 1998). Adverse rulings are an insufficient basis to 

prove judicial bias. Olson v. Olson, 392 N.W.2d 338, 341 (Minn. App. 1986). And, an 

error cannot be argued based on “mere assertion” unsupported by argument or authority. 

Schoepke v. Alexander Smith & Sons Carpet Co., 290 Minn. 518, 519-20, 187 N.W.2d 

133, 135 (1971). 

 Appellant argues that the district court’s statement in the summary judgment order 

that appellant “has a longstanding distrust of government in almost any form,” is 

evidence of judicial bias and warrants reversal. We disagree. Appellant offers no 

support for his judicial bias argument other than this comment in the summary judgment 

order, and a reference to signs appellant apparently posts on his property. Moreover, the 

 

2

 Appellant also claims in his brief that in addition to Theno and Selleck’s 

representations, Pavolwich made misrepresentations dating back to 2005. But as the 

county points out, negligent misrepresentation must be pleaded with particularity. See 

Hardin Cnty. Sav. Bank v. Hous. & Redev. Auth. of Brainerd, 821 N.W.2d 184, 191 

(Minn. 2012). Although the county claims that appellant did not plead with particularity 

the allegations against Pavolwich, we need not decide the issue because even if the 

second amended complaint was pleaded with particularity with respect to Pavolwich, 

summary judgment would be appropriate under the same reasoning applicable to Theno 

and Selleck. 
14 

comment was made in analyzing the issue of whether there was a fiduciary relationship 

between appellant and Theno and Selleck. In determining that a fiduciary relationship 

was lacking, the district court mentioned that appellant has a “longstanding distrust for 

government,” and supported the statement by mentioning that appellant’s “multiple calls 

to multiple government actors demonstrates that he did not blindly place his trust and 

confidence in Ms. Theno or Ms. Selleck.” Although the district court’s comment was 

arguably inappropriate and perhaps unnecessary, the statement does not demonstrate a 

lack of partiality sufficient to overcome the presumption disfavoring a determination of 

bias. See Hooper v. State, 680 N.W.2d 89, 93 (Minn. 2004) (“While removal is 

warranted when the judge’s impartiality might reasonably be questioned, a[n] 

[appellant’s] subjective belief that the judge is biased does not necessarily warrant 

removal.”). Therefore, appellant is not entitled to a reversal based on judicial bias. 

Affirmed.