Bellboy Import Corporation, Appellant, vs. Colleen Banghart, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-762

 

 

Bellboy Import Corporation,

Appellant,

 

vs.

 

Colleen Banghart,

Respondent.

 

 

Filed November 30, 2004

Affirmed

Robert H. Schumacher, Judge

 

Hennepin County District Court

File No. CT0318632

 

 

Daniel J. Boivin, Konstandinos Nicklow, Meshbesher & Spence, Ltd., 1616 Park Avenue, Minneapolis, MN 55404 (for appellant)

 

Keith S. Moheban, Leonard, Street and Deinard, P.A., 150 South Fifth Street, Suite 2300, Minneapolis, Minnesota 55402 (for respondent)

 

 

            Considered and decided by Schumacher, Presiding Judge; Minge, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

Bellboy Import Corporation appeals from the dismissal of its complaint for failure to state a claim upon which relief could be granted.  Bellboy argues the district court erred by considering matters outside the pleadings and in determining that Bellboy failed to set forth a legally sufficient claim.  We affirm.

FACTS

Bellboy exports food and restaurant supplies to countries in the Middle East.  In its complaint, Bellboy alleged that respondent Colleen Banghart worked as chief bookkeeper, credit manager, and collection manager for Bellboy between March 1998 and June 2000.  In this position, Banghart was responsible for reviewing customer credit information and for securing payment prior to customers taking delivery of goods.  Bellboy alleged that Banghart, in violation of these responsibilities, allowed three customers to "get delivery of title documents and merchandise free of payment."  Despite Bellboy's subsequent collection efforts, all three customers have not fully paid for goods released by Banghart.  In an affidavit submitted in response to Banghart's motion to dismiss, Bellboy stated that Banghart had acted intentionally to benefit Imgarten, a competing business.

D E C I S I O N

1.         Bellboy contends the district court erred by considering matters outside the pleadings when deciding Banghart's motion to dismiss for failure to state a claim.  Under Minn. R. Civ. P. 12.02, a motion to dismiss for failure to state a claim must be treated as a motion for summary judgment if matters outside the pleadings are submitted to the district court for consideration and are not excluded.

A review of the record shows that matters outside the pleadings were submitted to the district court, including an affidavit submitted by Bellboy that stated Banghart had acted intentionally to benefit a competing business.  These matters were discussed by the district court in disposing of Banghart's motion to dismiss for failure to prosecute.  In disposing of Banghart's other motion, which was a motion to dismiss for failure to state a claim, the district court recognized that under rule 12.02 the court is confined to the facts alleged in the pleadings.  In compliance with the rule, the district court memorandum specifically excluded matters submitted outside the pleadings and confined its decision to the facts alleged in the complaint.  Thus, the district court did not err by considering matters outside the pleadings.

2.         Bellboy contends the district court erred in determining that Bellboy failed to set forth a legally sufficient claim.  In reviewing cases that were dismissed for failure to state a claim, the only question before this court is whether the complaint sets forth a legally sufficient claim for relief.  Barton v. Moore, 558 N.W.2d 746, 749 (Minn. 1997).  The reviewing court must consider only the facts alleged in the complaint, accepting those facts as true and construing all reasonable inferences in favor of the nonmoving party.  Bodah v. Lakeville Motor Express, Inc., 663 N.W.2d 550, 553 (Minn. 2003).

Bellboy pleaded two claims for relief, breach of fiduciary duties and negligence, asserting with regard to both that Banghart breached her duties of "loyalty and fidelity."  Negligence is a breach of a legal duty, imposed by common law or by statute.  Scott v. Independent Sch. Dist. No. 709, 256 N.W.2d 485, 488 (Minn. 1977).  Bellboy does not cite a statute imposing the fiduciary duties allegedly breached by Banghart.  Thus, on both claims, the issue is whether Bellboy pleaded facts that would support granting relief for a breach of a fiduciary duty imposed by common law.

Minnesota courts have stated generally that "all employees, to a lesser or greater extent, have a fiduciary relationship to their employers, . . . with a duty to act in the interests of the employer and not as an adversary."  State by McClure v. Sports and Health Club, Inc., 370 N.W.2d 844, 858 (Minn. 1985) (citing Restatement (Second) Agency §§ 1, 2, 13 (1957)).  But a claim upon which relief can be granted has been recognized only in limited circumstances: (1) soliciting business of the employer prior to leaving the employment relationship, (2) disclosing or misappropriating information that the employer has treated as a secret, and (3) engaging in serious misconduct such as embezzlement or referring customers to a competitor.  Electro-Craft Corp. v. Controlled Motion, Inc., 332 N.W.2d 890, 903 (Minn. 1983) (misappropriating information the employer has treated as a secret violates employee's duty of confidentiality); Sanitary Farm Dairies, Inc. v. Wolf, 261 Minn. 166, 175, 112 N.W.2d 42, 48 (1961) (soliciting business of an employer prior to leaving employment breaches employee's duty of loyalty); Hlubeck v. Beeler, 214 Minn. 484, 489, 9 N.W.2d 252, 254 (1943) (embezzlement breaches the duty to serve an employer "faithfully and honestly"); St. Cloud Aviation, Inc. v. Hubbell, 356 N.W.2d 749, 751 (Minn. App. 1984) (referring a customer to a competitor breaches fiduciary duty of salesperson).

Bellboy alleged that Banghart, in her position as a bookkeeper, allowed three customers to obtain goods without payment.  But these allegations, even if true, does not amount to an allegation that Banghart solicited the business of Bellboy prior to leaving her employment, disclosed or misappropriated Bellboy's trade secrets, embezzled corporate funds, or referred customers to a competitor.  Bellboy's only theory, according to its complaint, was that Banghart conducted her job as bookkeeper in violation of Bellboy's policy that overseas customers pay for goods prior to delivery.  The only inference available from this allegation is that Banghart did her job poorly.

At oral argument, Bellboy argued that if it had been allowed to proceed on the complaint as filed it could have discovered, through depositions, the facts necessary to support its claims.  But a complainant is required under rule 12.02 to state, in its pleadings, a complaint upon which relief could be granted.  The district court did not err in dismissing the complaint for failure to state a claim upon which relief could be granted.

            Affirmed.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.