This opinion will be unpublished and

may not be cited except as provided by

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






G. Bradford Merkl,


Timothy T. Pendleton,


Filed August 23, 2005


Minge, Judge


Winona County District Court

File No. C2-03-512



G. Bradford Merkl, Rt. 2, Box 75A, P.O. Box 133, La Crescent, MN 55947 (pro se appellant)


David A. Joerg, David A. Joerg, P.A., P.O. Box 257, Preston, MN 55965 (for respondent)


            Considered and decided by Minge, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.

U N P U B L I S H E D  O P I N I O N


MINGE, Judge

Appellant challenges the district court’s dismissal of his claim that the sheriff’s sale of real property should be invalidated and denial of his motions to amend his complaint and to extend the time for and to compel discovery.  Because issues regarding the sheriff’s sale have been decided by previous judgments that are no longer appealable, because appellant did not timely raise new issues, and because the district court did not abuse its discretion by denying appellant’s motions to amend and for discovery, we affirm.


            This action arises out of a long-running dispute related to real property in Winona County.  The underlying facts are set forth in our earlier decision, T.B.T.G. Found. v. Pendleton, No. C7-00-615 (Minn. App. Nov. 14, 2000).  Respondent Timothy T. Pendleton built a house on land which was owned by T.B.T.G. Foundation (T.B.T.G.).  Appellant G. Bradford Merkl established and controlled T.B.T.G.  After Merkl brought an action to remove Pendleton from the land, Pendleton brought an unjust-enrichment claim against T.B.T.G. and obtained a judgment for $36,499.35.  Pendleton then obtained a writ of execution to collect the amount due on the judgment, and the land was sold at a sheriff’s sale to satisfy the judgment.  Less than a month before the execution sale, T.B.T.G. conveyed its interest in the land to Merkl.

            After the redemption period ended without any redemption, Pendleton commenced suit to evict Merkl from the land.  As a defense to that action, Merkl challenged the validity of the sheriff’s sale on the ground that the sheriff’s office failed to first search for personal property to satisfy the judgment against T.B.T.G.  The district court rejected the defense and granted a writ of restitution evicting Merkl.  This was unsuccessfully appealed. 

            Next Merkl initiated the present action, requesting that the sale of the property be voided, requesting that the eviction judgment be set aside, and claiming that there was unjust enrichment because Pendleton would be receiving property worth more than the price paid at the sale.  Incident to his action, Merkl filed a motion for a temporary injunction to halt the eviction; the district court denied the motion.  Merkl brought an interlocutory appeal of the denial of the motion to this court and we affirmed.  Merkl v. Pendleton, No. A03-959, 2004 W.L. 1152502 at *2 (Minn. App. May 25, 2004).  In upholding the denial of the temporary injunction, we stated that upon expiration of the redemption period, respondent received all right, title and interest in the real estate that had been sold at the sheriff’s sale.  Id. at *1-2.  We further stated that there is no evidence that the execution sale of the real estate was fraudulent or oppressive or that the deputy sheriff knew of Merkl’s personal property at the time of the sale.  Id. at *2.

After the interlocutory appeal, the district court adopted a scheduling order and both parties filed motions.  Pendleton requested summary judgment dismissing Merkl’s claims because there were no issues of material fact and because Merkl had forfeited all his personal property that was still on the premises.  Merkl brought the following motions:  (1) for clarification; (2) to amend the scheduling order; (3) to compel respondent to comply with discovery requests; (4) to show cause; (5) to amend the complaint, primarily to allege fraud and collusion; (6) for a stay; and (7) to enlarge the time for discovery. 

A hearing was held on these motions.  The district court granted Pendleton’s motion for summary judgment and dismissed all of Merkl’s motions, finding that Merkl was not prejudiced by inadequate time for discovery, that Merkl was barred by res judicata from challenging the sale and eviction, that dismissal of Merkl’s motion to amend the complaint to include fraud was appropriate because the claim could not survive summary judgment, and that the issues of personal-property ownership were not pleaded and therefore were not before the court.  The district court also stated that if after 30 days the parties were unable to negotiate a time for Merkl to remove what was his undisputed personal property, it would be sold at a public auction with the proceeds going to Merkl.  This appeal follows. 



When reviewing a summary judgment, an appellate court asks two questions: (1) are there any genuine issues of material fact and (2) did the district court err in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  Summary judgment is proper when the evidence in the record shows there is no genuine issue of material fact and either party is entitled to a judgment as a matter of law.  Minn. R. Civ. P. 56.03; DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).  “On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).  A genuine issue for trial must be established by substantial evidence.  D.L.H., 566 N.W.2d at 69-70.


The first issue is whether the district court abused its discretion by denying appellant’s motion to void the execution sale of the real property.  Merkl claimed the sale was void because of inaccuracies in the return of service and the sheriff’s failure to search for personal property to satisfy the judgment.  When there is a money judgment against a party, the sheriff is statutorily required to seek satisfaction of the judgment first from the judgment debtor’s personal property, and if this is insufficient, from the party’s real property.  Minn. Stat. § 550.04 (2004).  The court’s actual writ of execution had the same requirement.   

Merkl did not challenge the validity of the sale during the one-year redemption period.  Based on Minn. Stat. § 550.22, the title passed to Pendleton following the expiration of the redemption period, and Merkl could no longer challenge the validity of the sale.  This issue has already been decided in the district court’s April 3, 2003, decision in the unlawful detainer action.  Since this was already litigated, was necessary and essential to the prior judgment, and involved the same parties, the doctrine of collateral estoppel precludes Merkl from again raising this issue.  Aufderhar v. Data Dispatch, Inc., 452 N.W.2d 648, 650 (Minn. 1990).[1] 


            The next issue is whether the district court abused its discretion by denying Merkl’s motion to amend the complaint to plead fraud.  The rule is that after an answer is served, a party may amend a pleading only with permission from the court or written consent from the opposing party, but that permission should be freely given when justice so requires.  Minn. R. Civ. P. 15.01.  A district court’s decision to grant or deny leave to amend a complaint will not be disturbed absent an abuse of discretion.  Fabio, 504 N.W.2d at 761.  A motion to amend the complaint can be denied when the additional claim would not survive summary judgment.  Bebo v. Delander,632 N.W.2d 732, 740 (Minn. App. 2001), review denied (Minn. Oct. 16, 2001). 

            Merkl claims that the sale was fraudulent because the writ of execution signed by the deputy stated that he had made a diligent search for personal property.  Merkl claims that Pendleton’s lawyer drafted the writ of execution that the deputy used and that this is part of a larger pattern of collusion between Pendleton and public officials and employees to fraudulently gain Merkl’s land.  However, there is no evidence that there was any overt act or intent by the deputy or any other public official or employee to favor Pendleton in the sheriff’s sale.  Merkl has not produced any evidence that T.B.T.G., as opposed to Merkl himself, had personal property to satisfy the judgment.  In addition, if T.B.T.G. or Merkl knew of personal property that could have been used to satisfy the judgment, they could have brought this to the attention of the sheriff or Pendleton, and they did not.  There is no reason that Merkl and T.B.T.G. would rely on a statement by a deputy in the writ of execution that there was not sufficient personal property to satisfy the judgment because they would be in the best position to have knowledge of what personal property was available.  Furthermore, this court previously observed in the context of an appeal of the district court’s denial of a temporary restraining order that “the district court correctly noted that there is no evidence of fraud in the sale of the land.”  Merkl, 2004 W.L. 1152502, at *2.  Lacking such evidence, not only was summary judgment appropriate, but there is no factual basis for amending the complaint.  Therefore, the district court’s denial of Merkl’s motion to amend the complaint to plead fraud is not an abuse of discretion. 


            The third issue is whether the district court abused its discretion by not allowing Merkl further discovery.  A district court has wide discretion in the area of discovery orders.  Shetka v. Kueppers, Kueppers, Von Feldt, & Salmen, 454 N.W.2d 916, 921 (Minn. 1990).  Although the district court may impose sanctions for failure to properly comply with requirements related to discovery, the court has broad discretion in making this determination.  Minn. R. Civ. P. 37.02; Bowman v. Bowman, 493 N.W.2d 141, 145 (Minn. App. 1992). 

            Merkl contends that he was allowed insufficient discovery and that Pendleton did not properly comply with discovery.  For these reasons, Merkl claims his motion for clarification, motion to amend the scheduling order, motion to compel to show cause, and motion to enlarge time for discovery were improperly dismissed.  However, as the district court observed, Merkl has taken two lengthy depositions of Pendleton and served interrogatories on Pendleton.  Although Merkl contends that Pendleton did not properly answer the interrogatories, in fact, Pendleton provided a detailed list of personal property accompanied by a map showing the location of that property on the land.  Furthermore, we note that the pleadings and issues in this case concern the ownership of the land, that the vast majority of Merkl’s discovery focuses on the ownership of personal property, and that this ownership was not within the scope of the case.  Merkl had more than a year to conduct discovery; it was not an abuse of discretion for the district court to have closed discovery on July 20, 2004.

Likewise, although Merkl may have felt that sanctions should have been imposed against Pendleton for failure to properly comply with discovery orders, the imposition of sanctions is within the discretion of the district court.  See Minn. R. Civ. P. 37.02.  The record does not support a finding that the district court abused its discretion in dismissing this claim for sanctions.


            The final issue is whether the district court improperly found that Merkl had forfeited his uncontested personal property by not removing it from the land and improperly accepted Pendleton’s representation that personal property north of the creek belonged to Merkl and that personal property south of the creek belonged to Pendleton.  The district court stated in its April 8, 2004 order that if Merkl failed to remove the personal property that both parties conceded was his, the property would be sold and that the proceeds of the sale go to Merkl.[2]  The district court never found that Merkl forfeited the property.  Merkl has not provided any explanation why he failed to remove his personal property within three years after the expiration of the redemption period despite court-structured opportunities to do so.  The district court explicitly stated that it was not determining the ownership of that personal property claimed by both parties.  This issue remains an open dispute.[3]  


[1] Merkl has not presented any evidence that T.B.T.G, the actual judgment debtor, had any personal property.  In addition, the execution sale is not fraudulent because both the deputy who served the notice and Pendleton have stated that they had no knowledge of personal property owned by T.B.T.G. that could have satisfied the judgment.  See Cunningham v. Water-Power Sandstone Co., 74 Minn. 282, 284-85, 77 N.W. 137, 138 (1898) (finding that execution sale will only be set aside when creditor knew that there was ample personal property to satisfy the judgment).

[2] Merkl applied for a motion to stay the public sale of the property, and this court affirmed the district court’s denial of that motion on December 27, 2004. 

[3] The district court has displayed remarkable patience in its handling of this case, and the Winona Sheriff’s Office has taken substantial time to maintain the peace and otherwise perform its duties in matters related to the underlying controversy.  We commend these officials for their work.