This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Lynn M. Borders,





James S. Pipp,



Filed ­­­April 19, 2005

Reversed and remanded

Toussaint, Chief Judge


Sherburne County District Court

File No. C9-03-2433


Richard W. Curott, Curott & Associates, P.O. Box 206, 116 Second Avenue Southwest, Milaca, MN 56353 (for appellant)


Joan M. Quade, Barna, Guzy & Steffen, Ltd., 400 Northtown Financial Plaza, 200 Coon Rapids Blvd., Coon Rapids, MN 55433-5894 (for respondent)


            Considered and decided by Shumaker, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N


TOUSSAINT, Chief Judge


Appellant challenges the summary judgment dismissing her claim for an interest in respondent’s home.  Because we conclude there are genuine issues of material fact as to appellant’s alleged partial performance, we reverse and remand.


            Appellant Lynn Borders and her two children lived in the house of respondent James Pipp, to whom appellant was engaged to be married.  Because the ownership of respondent’s house was then in litigation, the parties looked for and found a new house.  Appellant gave respondent the $42,000 down payment; she gave $37,000 of this amount with a Gift Certification.  When respondent’s first house was sold, he gave appellant what he received from it, $18,000.

            Appellant, her children, and respondent lived in the new house for about 16 months.  During that time, respondent made the monthly mortgage payments of approximately $1,200 monthly and paid for insurance and property taxes; appellant paid for utilities and food.  Appellant did not pay rent.

            The relationship deteriorated and respondent moved out, ultimately bringing an unlawful detainer action against appellant.  The district court issued an order giving respondent the right to immediate possession of the property. 

            Appellant then brought this action, seeking a declaratory judgment that she had an interest in the house and claiming breach of contract, unjust enrichment, constructive trust, partition, conversion, and damage to property.  Respondent counterclaimed for damage to property.  He also moved for, and was granted, summary judgment on all appellant’s claims.  Appellant challenges the summary judgment, arguing that genuine issues of material fact preclude it.  


On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  “Summary judgment is not a trial of issues of fact.  It is a proceeding designed to determine if issues of fact exist.”  Corwine v. Crow Wing County, 309 Minn. 345, 36, 244 N.W.2d 482, 491 (1976).

It is undisputed that there was no written contract between the parties, but appellant claims an oral contract gives her roughly a half interest in respondent’s real property.[1]  To make this argument, appellant relies on an exception to the statute of frauds: “Nothing in this chapter [513, the statute of frauds] shall abridge the power of courts of equity to compel the specific performance of agreements in cases of part performance thereof.”  Minn. Stat. § 513.06 (2004).  Appellant argues that making the down payment, taking possession of the property with respondent, staying on it after respondent left, and improving it with a concrete slab and trees were part performance that entitles her in equity to an interest in the property.  Respondent claims that none of these acts was related to any oral contract between the parties.

“Whether acts of part performance are unequivocally referable to a vendor-vendee relationship under an oral contract is a question of fact to be determined by the trier of fact.”  Johnson v. Quaal, 250 Minn. 154, 158, 83 N.W.2d 796, 799 (1957).  And “summary judgment is not intended as a substitute for trial when there are factual issues to be determined.”  Naegele Outdoor Advertising Co. of Minneapolis v. City of Lakeville, 532 N.W.2d 249, 252 (Minn. App. 1995), review denied (Minn. July 20 1995).  Therefore, summary judgment was not an appropriate resolution of appellant’s claim of part ownership of respondent’s house.

Summary judgment was equally inappropriate to resolve appellant’s claims of constructive trust, conversion, damage to property, and unjust enrichment.  The district court found that “any amounts due and owing to [appellant] are outweighed by the fact that . . . [appellant’s] waste and destruction of the property was so substantial that it offsets any amount to which she would have any claim.”  But “[t]he district court’s function on a motion for summary judgment is not to decide issues of fact, but solely to determine whether genuine factual issues exist. . . . [T]he court must not weigh the evidence on a motion for summary judgment.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 70 (Minn. 1997) (citations omitted).  Because the district court weighed the evidence, we conclude that summary judgment was inappropriate.

Reversed and remanded.

[1] Appellant claims she is entitled to the balance of her original down payment, any portion of the increase in the value of the property attributable to the down payment contribution, and half of what remains after payment of the mortgage and taxes, real estate commissions, and closing costs.