This opinion will be unpublished and

may not be cited except as provided by

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






Doug Gunderson,
Plaintiff and Counterclaim Defendant,



Roy C. Gunderson,
Defendant, Counterclaimant, Cross-Claimant and Third-Party Plaintiff,

Ann K. Gunderson,
Defendant, Counterclaimant, Cross-Claimant and Third-Party Plaintif





Brian J. Gunderson,

Defendant and Cross-Claim Defendant,





Stanton Gunderson, et al.,

Third-Party Defendants,



Filed June 21, 2005


Poritsky, Judge*


Itasca County District Court

File No. C5031151


John P. Dimich, Dimich, Swanson & Sterle, 102 Northeast Third Street, Suite 120, Grand Rapids, MN 55744 (for respondent Doug Gunderson)


Steven K. Marden, 2136 Ford Parkway, Suite 359, St. Paul, MN 55116 (for appellant)


Charles H. Andresen, Andresen & Butterworth, P.A., 1000 Alworth Building, 306 West Superior Street, Duluth, MN 55802 (for respondents Stanton Gunderson and Mary Johnson)


            Considered and decided by Schumacher, Presiding Judge; Wright, Judge; and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant challenges the district court’s denial of her claims seeking to invalidate deeds that conveyed property to four of her children and retained a life estate for her and her husband, who has since passed away.  She argues that the deeds are void due to (1) fraud, (2) undue influence, and (3) lack of delivery.  Because we conclude that the district court did not err when it determined that (1) the deeds were not the product of fraud, (2) the deeds were not the product of undue influence, and (3) appellant has not presented sufficient evidence showing lack of delivery, we affirm.  We also affirm the district court’s holding that an earlier determination of an easement will not be modified.


            Appellant Ann Gunderson and her husband Roy Gunderson, who died in December 2003, lived together on a piece of property in Grand Rapids, Minnesota, for more than 20 years.  Ann and Roy Gunderson had seven children: Mary Johnson, Brian Gunderson, Stanton Gunderson, Douglas Gunderson, Larry Gunderson, Richard Gunderson, and Michael Gunderson.  During the 1990s, Ann and Roy consulted with Douglas about financial matters including their investments.  Douglas and Ann stipulate that Douglas was in a fiduciary relationship with Ann and Roy at the time the deeds at issue were drafted, signed, and recorded. 

            Douglas testified that his parents “wanted to get all their affairs in order.”  According to Douglas, he went with his parents to see attorney Warren Anderson, whom his parents had used previously for a land sale, and they discussed the effect of deeds conveying their property to four of their children, while retaining a life estate.  The irreversibility of this action was discussed.  Douglas testified that Anderson told him that to avoid taxes the property would be conveyed over multiple years.  Douglas further testified that he was not with his parents later when they returned to meet with Anderson and signed the deeds.  Copies of the signed deeds were then sent to Douglas, who testified that he recorded one of the deeds and the Anderson’s firm recorded the other two. 

            Ann and Roy Gunderson signed the following four deeds conveying portions of their property to Mary Johnson, Brian Gunderson, Stanton Gunderson, and Douglas Gunderson; the deeds retained a life estate for Ann and Roy: (1) a deed dated Saturday, December 28, 1996, and recorded June 23, 1997; (2) a deed dated Monday, January 5, 1997 (this deed contained an error and was replaced by another deed that was signed the same day); (3) a second deed dated Sunday, January 5, 1997, and recorded June 23, 1997; (4) a deed dated Monday, January 5, 1998, and recorded January 23, 1998.  Anderson prepared all of these deeds.

             Ann testified that she did not understand what the documents were when she signed them and that Roy never asked any questions about the deeds.  Ann also testified that she signed the documents because she trusted Douglas and thought he was looking out for her and Roy’s best interests.  She testified that she trusted her husband and he knew more about these types of things, so that if he told her to sign she would have.  Roy gave a deposition, which was admitted at trial, and in his deposition, Roy testified that nobody exerted any influence over him to sign the deeds and that he signed them of his own free will.  Roy further testified that he did not read over the documents before signing them.  Although he did not remember much about the transaction, Roy stated that he asked questions of Anderson and that Anderson answered them.  Roy also stated that he understood that his conveyance to his children was forever, but that he thought it might be possible to change his mind.    

            After signing the deeds, Ann and Roy Gunderson told some of their children that they were satisfied with their actions.  Mary Johnson testified that Ann told her that it was Ann’s understanding that Ann and Roy could stay on the property until they died and then it transferred.  Ann expressed that she was happy that they no longer had to worry about what was going to happen to the farm.  Stanton Gunderson testified that Ann told him that she had set up a life estate and was happy that this burden had been taken care of.  He also testified that his father, Roy, was also happy with what they had done.   

Three of the children, Larry, Michael, and Richard Gunderson, were not included in the deeds signed by Ann and Roy Gunderson.  When Roy was asked in his deposition if there were reasons why the three children were excluded, he answered, “Right.”  The matter was not pursued further with Roy, butAnn testified that Larry was not on the deeds because he was having financial trouble and there was a fear his creditors might come after his interest.  She also stated that Michael had debts, and in response to a question regarding whether a fear existed that they might become an encumbrance on the property, she stated his life was unsettled at the time.  Mary Johnson testified that Richard was probably not included in the deeds because he and Roy had a business partnership that ended in bitterness.

            The district court made extensive findings of fact and accompanied them with a well-reasoned opinion.  The court found that Ann’s testimony was not “particularly credible,” and the court did “not place great weight” on Roy’s testimony that he did not read the documents before signing them.  The court also specifically found that the deeds were not all signed on the date that Douglas Gunderson went with his parents to see Anderson.  The court concluded that it had not been established that there was any fraud, undue influence, or misrepresentation involved in the deeds conveying property from Ann and Roy Gunderson to their children.  The court also concluded that it was irrelevant whether the deeds were signed on the dates shown on the deeds because the deeds were effective when delivered.  The court also held there was no basis for modifying the easement from what had been determined in an earlier decision of a district court.  Ann Gunderson appealed the ruling that the deeds should not be set aside.   



On appeal from a trial where the judge is the factfinder, the findings of fact “shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.”  Minn. R. Civ. P. 52.01; Norlander v. Cronk, 300 Minn. 471, 474, 221 N.W.2d 108, 111 (1974); Werner v. Miller, 248 Minn. 75, 79, 78 N.W.2d 63, 66 (1956).

A.        Undue Influence

            Ann claims that the deeds from her and Roy were not valid because her son Douglas exerted undue influence over them to make these conveyances. 

The burden for proving undue influence lies with the party asserting it.  Norlander, 300 Minn. at 475, 221 N.W.2d at 111-12.  Undue influence exists if the influence is such as to overcome the free will of the individual.  Id. at 475, 221 N.W.2d at 111.  It must be established not only that the influence was exerted, but that dominance and control of the grantor’s mind was such that he or she “became a mere puppet of the wielder of that influence.”  In re Estate of Congdon, 309 N.W.2d 261, 268 (Minn. 1981).  The question of whether undue influence exists is a question of fact and is for the factfinder to determine, unless the evidence is conclusive one way or the other.  Agner v. Bourn, 281 Minn. 385, 393, 161 N.W.2d 813, 819 (1968).  “Where confidential relations exist between parties and one of them uses the relationship to secure an inequitable advantage, equity will set aside the transaction.” 390, 161 N.W.2d at 817.  However, even when a confidential relationship exists, there still must be evidence that undue influence was in fact exerted.  Id. at 392, 161 N.W.2d at 818.  It is possible to infer undue influence when there is a disposition of property in favor of the one who had an opportunity to influence, while other natural recipients are ignored.  Id.  To determine if a grantor’s free will has been overcome, courts will consider the grantor’s age, intelligence, experience, physical and mental health, and strength of character.  Id. 

            The district court did not give credibility to Roy and Ann’s testimony that they signed the deeds without reading them or to Ann’s testimony that she signed the documents because she believed that Douglas was looking out for their best interests.  Even accepting their testimony as true, there is no real evidence that Douglas exerted any undue influence.  Roy stated that no one exerted any influence over him to sign the documents and that he signed them of his own free will.  The district court specifically found that Douglas did not accompany his parents to meet with Anderson when they actually signed the deeds.  The most that Ann and Roy’s testimony shows is that they did not entirely understand what they were signing, not that Douglas Gunderson exerted any influence over them to sign the deeds.  In addition, there is testimony that Ann and Roy told their children that they were happy with their actions and understood what they had done.  Although not all of the children were grantees, three children (other than Douglas) who were grantees had nothing to do with the execution of the deeds.  Ann and Roy testified that there were reasons why three of the children were not grantees.  Under these circumstances the district court’s finding that Douglas did not exert undue influence is not clearly erroneous.

B.        Fraud

Ann claims that the deeds are void because of fraud.  The party asserting fraud has the burden of proof.  See State by Humphrey v. Alpine Air Prods., Inc., 500 N.W.2d 788, 790-91 (Minn. 1993).  A party must show the following to establish a claim for fraud: 

(1) A false representation of a material past or present fact susceptible of knowledge;

(2) The defendant either knew it to be false or asserted it as his own knowledge without knowing whether it is true or false;

(3) The defendant intended the plaintiff to act on his representation;

(4) The plaintiff was induced to act in reliance on the representation; and

(5) The plaintiff suffered damages which were the proximate cause of the representation. 


Rognlien v. Carter, 443 N.W.2d 217, 220 (Minn. App. 1989), review denied (Minn. Sept. 21, 1989); see Heidbreder v. Carton, 645 N.W.2d 355, 367 (Minn. 2002).    

Appellant claims that the evidence that all of the deeds may have been signed on the same date, even though three different dates appear on the deeds, is evidence of fraud by Douglas.  Douglas testified that attorney Anderson believed that to avoid certain taxes the property should be conveyed over several years.  This gives a plausible explanation for the possibility that the dates on the deeds do not correspond to the dates when the  deeds were signed.  There is no claim or evidence that Ann or Roy did not sign the deeds or that there was a misrepresentation about what the deeds stated.  Douglas was not present when Ann and Roy signed the deeds.  Even if the dates on the deeds were incorrect, this is not evidence that Douglas made a material false representation to Roy or Ann, or that Roy or Ann were induced to rely on any such representation.   

            Finally, Ann argues that her interests are separate from Roy’s and that his knowledge cannot be imputed to her.  Although it is not clear, she apparently makes this argument in support of her claims of undue influence and fraud.  While it is true that Roy’s knowledge cannot be imputed to Ann, nonetheless she testified that she signed the deeds because her husband told her to and she always trusted her husband.  So even if Ann relied on her husband and did not understand exactly the effect of the deeds she was signing, this does not demonstrate any type of undue influence or fraud on Douglas’s part. 

C.        Delivery

            Ann claims that the deeds were not a valid conveyance because there was no valid delivery due to the possible post-dating of the deeds. 

            The valid delivery of a deed requires that the grantor have a present intention to surrender control over the deed.  Exsted v. Exsted, 202 Minn. 521, 524-25, 279 N.W. 554, 557 (1938); Mollico v. Mollico, 628 N.W.2d 637, 640 (Minn. App. 2001).  Whether delivery occurred is a question of fact.  Exsted, 202 Minn. at 525, 279 N.W. at 557.  No particular form is necessary for delivery of a deed and transfer occurs at the time of delivery.  Id. at 524. 279 N.W. 557.  Recording a deed creates a presumption of delivery, even if it is done without the knowledge of the grantee.  Ingersoll v. Odendahl, 136 Minn. 428, 431, 162 N.W. 525, 526 (1917).     

              Ann claims that the dates on the deeds do not correspond to the dates on which the deeds were actually signed, and therefore there was no valid delivery.  The district court found that although it was possible that the deeds were post-dated, there was not sufficient evidence to overcome the presumption that the deeds were executed on the dates shown on the deeds.  However, even if the dates on the deeds are incorrect, this does not affect the validity of the delivery.  Delivery occurs when the intent to transfer title occurs, not based on any official date.  See Nybladh v. Peoples State Bank of Warren, 247 Minn. 88, 93, 76 N.W.2d 492, 497 (1956); Exted, 202 Minn. at 524-25, 279 N.W. at 557-58.  There is sufficient evidence in the signatures of Ann and Roy Gunderson on the deeds that they had intent to transfer the property.  None of the testimony indicates that there was some further contingency that needed to occur before the property would be transferred.  These deeds were then recorded, signifying that delivery had occurred, and there is no claim that the recording dates were false.  Whether or not the dates on the deeds were the actual dates was immaterial.  Also, the testimony of Mary Johnson and Stanton Gunderson shows that after they signed the deeds, Ann and Roy were happy with their actions to convey the land.  This shows that they had the intention to convey the land and did not feel that there was still some further step that needed to occur before they relinquished title to the land.   It is undisputed that the deeds were recorded.  In light of the rule that recording a deed creates a presumption of delivery,we conclude that the district court was correct when it ruled that there was nothing in connection with the delivery of the deeds that would cause them to be void.  


            The district court held that there was no basis for modifying the earlier decision of a district court fixing the locations of the easements at issue in this case.  Respondent Douglas Gunderson argues that the district court’s holding regarding the easement should be affirmed.  This issue is not contested by any of the other parties and therefore is affirmed on appeal.


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