This opinion will be unpublished and

may not be cited except as provided by

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






In re Estate of James McCarthy.


Filed April 27, 2004


Stoneburner, Judge


Dakota County District Court

File No. P50209374


Chad D. Lemmons, Linda K. Thompson, Kelly & Fawcett, P.A., 2350 US Bancorp Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for appellant)


Rollin H. Crawford, Stephen H. Fochler, LeVander, Gillen & Miller, P.A., Suite 400, 633 South Concord Street, South St. Paul, MN 55075 (for respondent)


            Considered and decided by Stoneburner, Presiding Judge; Anderson, Judge; and Hudson, Judge.


U N P U B L I S H E D  O P I N I O N




            Appellant Tollefson Development, Inc., (Tollefson) challenges the dismissal of its claim to enforce an amended purchase agreement against the estate of James A. McCarthy.  The probate division of the district court (probate court) found that, because the terms of the purchase agreement are impossible to enforce, there was no valid agreement, and denied the claim.  Tollefson argues that the probate court erred in determining that there was no real agreement between the parties.  Because the terms of the agreement presented to the probate court are impossible to enforce, we affirm. 


            James McCarthy and his brother, Patrick McCarthy, were co-tenants of an approximately 160-acre farm in Eagan.  Each owned an undivided one-half interest in the property, which has been in the McCarthy family for 150 years.  In August of 2000, real estate developer, appellant Tollefson Development, Inc., (Tollefson) and James McCarthy entered into a purchase agreement for James McCarthy’s interest in a portion of the property. 

            The purchase agreement does not contain a legal description of the property to be sold, but the boundaries of the parcel were roughly sketched on a copy of a map of the property that was attached to the purchase agreement as Attachment A.  On Attachment A, the property to be sold is outlined by a line following Westcott Road to the south, a line following the property line for an adjacent housing development to the west, a line following the property line for an adjacent housing development to the north, and a line bisecting a cultivated acreage to the east, with “Approx. 60 acres” written in the enclosed area.  The purchase price was $2.2 million, “ $37,000 per acre based on approximately sixty (60) acres. The price will be adjusted if the acreage is more or less.”  The exact acreage was to be “determined finally at or before the closing.” 

            The purchase agreement provided that James McCarthy would cooperate in a partition action to be brought by Tollefson to resolve Patrick McCarthy’s interest in the property.  The closing date for the transaction was set for March 31, 2001, or later if the partition action was not resolved by that date.

            When James McCarthy failed to perform under the contract, Tollefson sued him to enforce the purchase agreement.  Prior to trial, Tollefson and James McCarthy settled by agreeing to a number of amendments to the original purchase agreement.  The terms of the settlement were put on the record in district court on April 30, 2002, and included an increase in the purchase price to $4. 2 million, and a new closing date of November 14, 2002.  Other than amendments to the purchase agreement placed on the record, the terms of the original purchase agreement were not altered.  The transcript of the April 30, 2002, hearing is the only written record of the terms of the purchase agreement as amended by the settlement agreement.

            During the recorded discussion of each party’s understanding of the settlement agreement, James McCarthy insisted that the property to be sold did not include any land east of the tree line shown on Attachment A, and that the exact acreage to be sold was not “60 acres exactly.  It’s survey up to the tree line, that’s going to be it.”  Corey Tollefson, on behalf of Tollefson stated: “I’m not exactly sure where 60 acres would be without having a survey in front of me now.  But it’s my understanding that for 4.2 million we do get 60 acres.”  Counsel for James McCarthy noted a problem because the original purchase agreement provided for a per-acre price adjustment, but as amended by the settlement agreement there was no such provision.  When James McCarthy was asked if he agreed to be bound by the terms of the agreement read into the record by the judge, he replied: “Up to the last question on the property line that was, I’m still holding on that.  I want an answer from Tollefson and the Judge.”  James McCarthy referred to the eastern boundary shown on Attachment A and said “But now I just want it up to the tree line. . . .  Whatever up to the tree line surveys, that’s going to be the sale.”  The court noted that the offer was made “60 acres for the price of 4.2 million dollars.  That was accepted. . . . you try to respect [James McCarthy’s] wishes. . . . But the agreement was for 60 acres.  It wasn’t approximately 60 acres, it was 60 acres.  And that was communicated and it was stated and it was accepted.  All right.”

            James McCarthy died intestate in June 2002.  Patrick McCarthy was appointed personal representative of James McCarthy’s estate.  Another hearing in Tollefson’s action against James McCarthy took place on October 14, 2002, but the record before us does not reflect how that hearing came about.  A transcript of that hearing is not part of the record in the probate court proceeding or in this appeal, but it is undisputed that the eastern boundary of the property to be sold was discussed.  Following that hearing the district court issued “Findings of Fact, Conclusions of Law, and Order for Settlement”.  Finding of fact #2 provides:

James McCarthy shall sell 60 acres of land as set forth in the purchasing agreement for the sum of 4.2 million dollars.  The 60 acres does not include that portion of land beyond the tree line and into a field as specified by James McCarthy that is set forth on the record beginning on page 15 of the transcript and continuing thereon.


The order states that the purchase agreement was amended to reflect the parties’ intent and that it “shall not include that portion of property asserted by James McCarthy as that was not part of the final agreement between the parties.”  The district court also concluded that Patrick McCarthy was not a party bound by the terms and conditions of the settlement agreement.  The order states, “[A] binding settlement agreement was reached . . . with the enforcement of these terms being properly submitted to probate for further compliance and resolution of all matters.”  Closing was extended to 90 days after conclusion of the probate of James McCarthy’s estate “or until final resolution by court order or otherwise involving these matters.”  And the case was assigned to the probate court.

            Tollefson then filed a claim in the probate court for its interest in James McCarthy’s property “[p]ursuant to a Settlement Agreement entered April 30, 2002. . . .”  Patrick McCarthy, as personal representative, disallowed Tollefson’s claim.  Tollefson petitioned the probate court for allowance of the claim. 

            At the hearing on its claim, Tollefson sought enforcement of the sale of 60 acres under the amended purchase agreement and an order requiring the estate of James McCarthy to initiate a partition action to resolve Patrick McCarthy’s interest in that property.[1]  The probate court denied Tollefson’s claim concluding that the eastern boundary line necessary to convey 60 acres is beyond the tree line, and includes land that was not included in either the original or amended purchase agreement.  The court stated that it would not require the personal representative of the estate to bring a partition action because partition would only result in an available parcel of land that does not fit the description of the property to be sold in the amended purchase agreement.  The probate court concluded that because the agreement cannot be enforced[2], it was not a valid agreement.  This appeal followed. 


When reviewing orders of the probate court, this court’s review is limited to determining whether the probate court’s findings were clearly erroneous and whether it erred in its conclusions of law.  In re Estate of Sangren, 504 N.W.2d 786, 788 (Minn. App. 1993), review denied (Minn. Oct. 28, 1993).

            Tollefson’s brief on appeal is devoted entirely to arguing that the original purchase agreement, prior to amendment through settlement of its enforcement action, sufficiently defines the property to be sold, making it enforceable.   But Tollefson did not argue to the probate court that the original purchase agreement should be enforced.  A survey presented to the probate court showing a surveyor’s proposed description using the rough line drawn on Attachment A as the eastern boundary, shows that the resulting parcel is only 54.555 acres.  Tollefson argued for enforcement of an agreement to sell 60 acres for $4.2 million.  The probate court found that the surveyor’s property description based on Attachment A was speculative, did not approach 60 acres and extended east of the tree line, encroaching on land specifically excluded from the purchase agreement as that agreement was amended by the settlement agreement.  And, Tollefson’s surveyor’s description of 60 acres, using the fixed north, south, and west boundaries, placed the eastern boundary even further into the excluded land than the surveyor’s placement of the line from Attachment A.  The record supports the probate court’s finding that the sale of 60 acres with the eastern boundary being the tree line is impossible.

            The probate court relied on Frank Sullivan Co. v. Midwest Sheet Metal Works, 335 F.2d 33 (8th Cir. 1964) and Druar v. Ellerbe & Co., 222 Minn. 383, 24 N.W.2d 820 (1946), cited in Frank, to conclude that the agreement Tollefson sought to enforce was not a valid agreement.  The cited cases state that a contract “so uncertain as to any of its essential terms that it cannot be carried into effect without new and additional stipulations between the parties . . . is not a valid agreement.”  Druar, 222 Minn. at 395, 24 N.W.2d at 826.  This case is somewhat different from the cited cases because the problem is not vague and uncertain terms, but overly specific terms that describe property that does not exist.  But, as in the cited cases, the purchase agreement presented to the probate court in this case cannot be enforced without new and additional stipulations between the parties.  Therefore, the probate court properly concluded that the purchase agreement for 60 acres with the tree line as the eastern border was not a valid agreement. The probate court did not err by concluding that the agreement Tollefson sought to enforce is, by its terms, unenforceable or by denying Tollefson’s request for a partition action initiated by James McCarthy’s estate.

            Tollefson told the probate court that it disagreed with language in the district court’s October 16, 2003, order that fixed the eastern boundary at the tree line.  Tollefson argued that fixing the eastern border at the tree line constituted a change in the settlement agreement after it was reached.  But Tollefson did not request reconsideration of that order and did not argue to the probate court, as it did on appeal, that the October 16, 2003 order, or the entire settlement agreement should be vacated.  Nor did Tollefson argue to the probate court that the original purchase agreement is sufficiently definite to be enforced.  This court will generally not consider matters not argued and considered in the district court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  We decline Tollefson’s invitation to vacate the October 16, 2003, order, or the settlement agreement.  We also decline to comment on whether the original purchase agreement was enforceable, and decline Tollefson’s request that we remand this matter for further proceedings on the original contract, because none of this relief was requested or argued to the probate court. 



[1] Tollefson had earlier attempted to bring a partition action in its name, but the action was dismissed and this court affirmed the dismissal.  Tollefson Dev. Inc. v. McCarthy, 668 N.W.2d 701 (Minn. App. 2003).

[2] Tollefson made it clear that it was not interested in purchasing anything less than 60 acres.