This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, sub. 3 (2000).






Ronald E. Rehm, et al.,





Romeo J. Tlougan, et al.,



Filed May 28, 2002

Reversed and remanded

Gordon W. Shumaker, Judge


Olmsted County District Court

File No. C4011284





William L. French, 627 Woodhaven Ct. Northeast, P.O. Box 6323, Rochester, MN 55903; and


Jeffrey E. Thompson, 2258 Marion Road Southeast, Rochester, MN 55904 (for appellants)


Raymond L. Hansen, O’Brien & Wolf, L.L.P., 206 South Broadway, Suite 611, P.O. Box 968, Rochester, MN 55903 (for respondents)




            Considered and decided by Shumaker, Presiding Judge, Harten, Judge, and Willis, Judge.


U N P U B L I S H E D   O P I N I O N


            Appellants contend that the district court erred in granting summary judgment to respondents, sellers of real estate.  Because there exist issues of fact and law properly determinable at trial, we reverse and remand.


            On March 23, 1998, appellants Ronald Rehm and Kay Rehm (Rehm) and respondents Romeo Tlougan and Marion Tlougan (Tlougan) signed a purchase agreement that provided for the Rehms’ purchase of “vacant farm land” in Haverhill Township owned by the Tlougans.  The agreement contained no legal description of the property but rather provided:  “See attached tax statements – abstract to govern.”  The purchase price was $171,500, to be paid in earnest money of $1,000, $70,500 on closing, and $100,000 by contract for deed.  Closing was set for “4-30-98 or when split is approved.”  The “split” was explained in an addendum to the agreement:

Seller shall retain 4 acres in s.w. corner of Parcel where homestead is currently located approx 200 x 871 per drawing attached.  The acreage may need to be increased if require[d] by planning and zoning.  Price will be adjusted on a pro rata basis if acreage needs to be adjusted.


            The township zoning administrator informally requested the town board to approve the split on April 15, 1998.  The board did not do so.

            Between May 30 and June 13, 1998, Tlougan advertised the entire parcel of land for sale.

            Tlougan and Rehm appeared before the board on July 15, 1998.  The board minutes reflect their participation:

Romeo Tlougan and Ronald Rehm talked to the board concerning bills for legal fees and surveying costs that were incurred while they were discussing land use and a proposed variance with R. Ihrke, Zoning Administrator, on property owned by R. Tlougan.  The board has taken no action on a variance since there has been no formal application by the land owner.


            On March 26, 1999, Tlougan applied to the board for a split of his homestead from the rest of his farmland.  The board approved the split.

            In June 1999, Rehm sued Tlougan for specific performance.  Tlougan contended that there was no valid purchase agreement because it lacked an essential term; there had been a failure of a condition precedent; the agreement had been terminated or abandoned; and the action had not been started within the six-month limitation period provided in the agreement.  Tlougan also counterclaimed for a declaratory judgment that there was no valid agreement or, in the alternative, that the agreement had been rescinded.

            The parties filed cross-motions for summary judgment.  The district court granted Tlougan’s motion and denied Rehm’s motion.  The court determined that any claim for breach of contract that Rehm had accrued no later than July 1998, the month in which Rehm saw Tlougan’s ad for the sale of the entire farm, and that, because Rehm did not start the lawsuit until more than six months later, the action is barred by the limitation in the purchase agreement.  The court also determined that Rehm had abandoned the purchase agreement.  Rehm appeals.


            On appeal from summary judgment, the reviewing court asks whether there are any issues of material fact for trial and whether the district court erred in its application of law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

            We hold that there exist genuine issues of material fact for trial and thus summary judgment was inappropriate.  We base our holding on three things.

            First, the attorneys conceded at oral argument that, depending on interpretations of the facts and credibility determinations, some material facts are in dispute.  To some extent, the district court interpreted facts.  This is not the court’s function on summary judgment.  Albright v. Henry, 285 Minn. 452, 464, 174 N.W.2d 106, 113 (1970).  As an example, the district court correctly ruled that abandonment is a question of intent, citing Ahlstrand v. McPherson, 285 Minn. 398, 401, 173 N.W.2d 330, 333 (1969), but then interpreted Rehm’s silence after he saw the sale ad in 1998 to evince abandonment.

            Rehm argues that the sellers and purchasers were friendly neighbors and that Rehm did not want to put pressure on Tlougan to obtain the split and complete the sale.  Whether or not this explanation is plausible, it is not inherently incredible, and thus presents a credibility issue for the trier of fact to decide.  St. Paul Fire & Marine Ins. Co. v. Honeywell, Inc., 611 N.W.2d 51, 59 (Minn. App. 2000), review denied (Minn. Aug. 15, 2000).

            Second, the mere fact that parties have brought cross-motions for summary judgment does not mean there is no issue for trial.  Murphy v. Wood, 545 N.W.2d 52 (Minn. App. 1996).

            Third, Donnay v. Boulware is instructive:

Summary judgment is a “blunt instrument” and should not be employed to determine issues which suggest that questions be answered before the rights of the parties can be fairly passed upon.  It should be employed only where it is perfectly clear that no issue of fact is involved, and that it is not desirable nor necessary to inquire into facts which might clarify the application of the law.


Donnay v. Boulware, 275 Minn. 37, 45, 144 N.W.2d 711, 716 (Minn. 1966).

            We see several fact-dependent issues that ostensibly can be clarified only through a trial, including, but not necessarily limited to:

1.         Did Tlougan’s ad for the sale of the entire farm evince his intent to terminate the agreement?  It would not be improper for him to solicit a back-up buyer in the event he could not get approval for the split.


2.         Was the board’s informal rejection of the split sufficient to cause the condition of the split to fail?  Or was Tlougan required at least to make a formal application?


3.         Did Rehm’s inaction after July 15, 1998, evince an intent to abandon the purchase?


4.         Considering the parties’ dealings with each other, what was a reasonable time for Tlougan to apply for the split?


There are likely other issues for trial as well.  On this record, the district court erred in granting summary judgment.  

            Reversed and remanded.