This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Ella Mae Folley,
Lloyd S. Thompson,
Filed June 14, 2005
Stearns County District Court
File No. C4-04-2609
David W. Buchin, Buchin Law Office, 16 North Ninth Avenue, St. Cloud, MN 56303 (for appellant)
William Spooner, Frauenshuh & Spooner, P.A., 113 Washburne Avenue, Paynesville, MN 56362 (for respondent)
Considered and decided by Peterson, Presiding Judge; Kalitowski, Judge; and Wright, Judge.
U N P U B L I S H E D O P I N I O N
On appeal directly from judgment in this real-estate dispute, appellant Ella Mae Folley contends that the district court erred in finding that a payment of $15,000 was to be applied to a commercial-property contract for deed rather than a homestead contract for deed. We affirm.
D E C I S I O N
It is not the province of
the appellate courts “to reconcile conflicting evidence. On appeal, a [district] court’s findings of
fact are given great deference, and shall not be set aside unless clearly
erroneous. . . . If there is reasonable evidence to
support the [district] court’s findings of fact, a reviewing court” will not
disturb those findings. Fletcher v. St. Paul Pioneer Press, 589
N.W.2d 96, 101 (
Appellant and respondent entered into two contracts for deed. The first, a contract for deed on a homestead, was executed in April 1999. The contract established a purchase price of $15,000. The second, a contract for deed on a commercial property used by appellant as a restaurant, was executed one year later, in March 2000. On the same day that the commercial-property contract was executed, appellant executed a written assignment to respondent of her interest in her mother’s estate as security for the commercial property. Appellant closed the restaurant in August 2000. One month later, in September 2000, appellant directed the executor of her mother’s estate to send a check for $15,000, drawn from the estate, to respondent. Almost four years later, in April 2004, respondent served appellant with notices of cancellation of contract for both properties.
Appellant argues the district court erred in finding that the $15,000 payment was to be applied to the commercial-property contract because the parties intended the payment to apply toward the homestead contract. Appellant contends that this was demonstrated by the fact that the purchase price of the homestead was the same as the payment amount, appellant closed the restaurant before making the payment, and respondent waited four years after receiving the payment before bringing the cancellation actions.
Appellant testified that she directed the executor of her mother’s estate to send respondent a check for $15,000 to “pay off [her] house.” She further testified that she told Thompson “several times” that the purpose of the $15,000 was to “pay off the house.” But respondent testified that the assignment of interest in appellant’s mother’s estate was for the purpose of paying off the commercial-property contract. He stated that he understood the $15,000 to be a partial payment on that contract, that the estate “was suppose to be enough to cover the restaurant,” and that there “was more supposed to be coming.” He introduced the assignment of the estate interest that specifically stated that it secured “the principle balance plus any arrearages on the contract for deed executed between [the parties] on March 1, 2000,” which is the date the commercial-property contract was executed. And respondent further testified that he and appellant never agreed that the assignment was no longer in effect at the time the contested payment was made.
The district court was entitled to reconcile the conflicting testimony of the parties. The district court found appellant’s testimony was not credible and believed the testimony of respondent. Based on respondent’s testimony, the written assignment of interest, and the check drawn from appellant’s mother’s estate, we cannot conclude that the district court clearly erred in finding that the payment of $15,000 was to be applied to the commercial-property contract.
We note that appellant
raises a number of legal challenges to the district court judgment, including
abandonment of contracts for deed, laches, the statute of frauds, and unjust
enrichment. Because these issues were
not raised to or considered by the district court, we decline to consider them
on appeal. See Thiele v. Stich, 425 N.W.2d 580, 582 (