This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Wendy Jean Carlson,
Countrywide Home Loans,
Filed October 4, 2005
Hennepin County District Court
File No. CT0210637
Nicholas J. Eugster, John W. Lang, Messerli & Kramer, 1800 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402 (for appellant)
Considered and decided by Peterson, Presiding Judge; Wright, Judge; and Forsberg, Judge.*
U N P U B L I S H E D O P I N I O N
In this appeal from a judgment awarding respondent Jeffery Hansing an undivided one-half interest in a house titled in appellant Wendy Carlson’s name, Carlson argues that the district court erred in ruling that exceptions from the statute of frauds and Minnesota’s anti-palimony statutes applied when there was no written contract between the unmarried cohabitants. We affirm.
Each of the parties owned a house when they decided to buy a new house together. Because Hansing had not completed selling his old house by the time of the closing for the new house, Carlson used her savings and the proceeds from the sale of her old house to pay half of the purchase price of the new house and obtained a mortgage loan in her own name to pay the other half of the purchase price. Title to the new house was put in Carlson’s name.
After the parties moved into the house, Hansing made monthly payments to Carlson, and Carlson made the monthly mortgage payments. When the parties’ relationship deteriorated, Carlson obtained a court order precluding Hansing from entering the house, and Hansing sued Carlson and the mortgage lender to establish his interest in the house.
Following a trial to the court, the district court found that the parties had an oral agreement that (1) each of them would own an undivided one-half interest in the house; (2) Carlson would pay one-half of the purchase price in cash, and the parties would jointly obtain a mortgage loan to pay the other half of the purchase price; and (3) Hansing would be solely responsible for the mortgage-loan origination fee, prepaid interest at closing, and monthly mortgage payments. The district court also found that Hansing’s share of the purchase price was paid with proceeds from the mortgage loan obtained in Carlson’s name with the understanding that Hansing would make the mortgage payments. Finally, the district court found that Hansing made monthly mortgage payments by transferring funds or issuing a check to Carlson, who used the money to make the mortgage payments, and as of the date that Carlson excluded Hansing from the house, Hansing had fully performed his part of the parties’ oral agreement, and Carlson had breached the agreement.
The district court concluded that neither the statute of frauds nor the anti-palimony statutes precluded Hansing’s claims and ordered that the house be sold and the proceeds divided between the parties. A posttrial order denied the bulk of Carlson’s requested relief, but made Hansing responsible for all mortgage payments.
D E C I S I O N
“The applicability of a statute is an issue of
statutory interpretation, which appellate courts review de novo.” Ramirez
v. Ramirez, 630 N.W.2d 463, 465 (
the statute of frauds, “[e]very contract . . . for the sale of any lands, or
any interest in lands, shall be void unless the contract, or some note or
memorandum thereof, expressing the consideration, is in writing and subscribed
by the party by whom the lease or sale is to be made[.]”
Carlson argues that the terms of a written contract to convey land cannot be altered by parole evidence, that it is undisputed that the house was conveyed to her in her name only, and that absent some written agreement evidencing Hansing’s claimed interest in the house, his claim must be barred. But the district court found that the parties originally intended to purchase the house together, and when Hansing’s continued liability for his own house made him unable to obtain a favorable mortgage loan with Carlson for the new house, Carlson obtained a mortgage loan in her name only, and the parties “agreed that after the closing, they would execute a Contract for Deed whereby Carlson would convey to Hansing record title to an undivided one-half interest in The House.” Thus, the district court’s ruling is not based on an attempt by Hansing to alter the contract conveying the house to Carlson, but on Carlson’s separate agreement to convey a one-half interest in the house to Hansing. Carlson’s argument that the district court erred by not applying the statute of frauds to protect the integrity of the contract conveying the house to her is misplaced.
Carlson also challenges the district court’s use of the part-performance rationale to remove the parties’ agreement from the statute of frauds. While the district court noted that “payment of purchase money, standing alone, is ordinarily insufficient to remove an oral contract for the transfer of an interest in land from the statute of frauds[,]” it also stated:
Hansing’s part performance went beyond the mortgage payments to include identifying the opportunity to buy The House, negotiating the sale price, taking possession of The House, and selling his house . . . Moreover, the existence of the oral agreement is corroborated by several written documents, notably Carlson’s handwritten notes. In light of those factors, this case parallels [Camenker v. Greene, 251 Minn. 106, 86 N.W.2d 708 (1957)], where the Minnesota Supreme Court applied the rule that “the taking of possession by the purchaser, acting under an oral contract for the transfer of an interest in land, coupled with the making of part payment of the purchase price, in reliance upon and with unequivocal reference to the vendor-vendee relationship . . . is sufficient to avoid the statute [of frauds].”
Carlson argues that Camenker is distinguishable because
Hansing did not pay the purchase price for, take sole possession of, or sign a
note and mortgage for, the house. But
Carlson admits that while Hansing lived in the house, he made monthly payments
to her equal to the sum of the mortgage payments and half of the monthly bills,
and the district court found that “using cancelled checks and bank statements,
Hansing proved that he paid for each monthly mortgage payment from August 1,
2001 until March 1, 2002 by transferring funds or issuing a check to Carlson
who used that money to make the mortgage payments.” Regarding possession of the property, Hansing
lived in the house until Carlson obtained a court order to keep him off the
property. Like Hansing, the buyer in Camenker didnot take sole possession of that property. See
argues that the district court did not find that Hansing’s part performance was
coupled with what the Camenker courtcalled an “unequivocal reference to . .
. the vendor-vendee relationship.” 251
Because we affirm the district court’s determination that part performance takes the parties’ oral agreement out of the statute of frauds, we need not address Carlson’s challenges to the district court’s rulings regarding a constructive trust or a joint venture.
If sexual relations between the parties are contemplated, a contract between a man and a woman who are living together in this state out of wedlock, or who are about to commence living together in this state out of wedlock, is enforceable as to terms concerning the property and financial relations of the parties only if:
(1) the contract is written and signed by the parties, and
(2) enforcement is sought after termination of the relationship.
Unless the individuals have executed a contract complying with the provisions of section 513.075, the courts of this state are without jurisdiction to hear and shall dismiss as contrary to public policy any claim by an individual to the earnings or property of another individual if the claim is based on the fact that the individuals lived together in contemplation of sexual relations and out of wedlock within or without this state.
In re Estate of Palmen, 588 N.W.2d
493, 495 (
With respect to Hansing’s part of the agreement, consideration consisted primarily of monetary contributions toward the purchase of The House, e.g., providing funds for the monthly mortgage payments. Since the primary consideration for the agreement was unrelated to the parties’ sexual relations, Hansing’s claim is not subject to the jurisdictional bar imposed by [the statutes].
Carlson argues that the district
court’s reliance on Palmen is
misplaced. But the district court correctly
read Palmen, which states, “in In re Eriksen, we explicitly held that
the jurisdictional bar imposed by sections 513.075 and 513.076 applies only
when the ‘sole consideration for a
contract between cohabiting parties is their contemplation of sexual relations
* * * out of wedlock.’” 588 N.W.2d at
495 (quoting In re Eriksen, 337
N.W.2d 671, 674 (
Carlson also argues that the district court erred in relying on Palmen because Palmen only allows recovery of an individual’s own property, and here Hansing did not contribute to the purchase of the house, was unable to trace any other contributions to the house, and even after completing the sale of his old home, did not contribute to the house or the mortgage. But this argument is based on factual assumptions contrary to the district court’s well-supported findings. Carlson completely ignores the district court’s findings that (1) the parties agreed that each of them would own an undivided one-half interest in the house; (2) Carlson obtained the mortgage loan in her name with the understanding that Hansing would make the mortgage payments; and (3) Hansing made monthly payments to Carlson who then used the money she received from Hansing to make the mortgage payments. Also, the posttrial order makes Hansing “solely liable” for the mortgage loan that is in Carlson’s name.
Roatch v. Puera, 534 N.W.2d 560
(Minn. App. 1995), Carlson argues that the exceptions to the anti-palimony
statutes do not apply when the claimant did not contribute equally to the
purchase of the house and that Hansing’s general contributions to living
expenses, regardless of what debts the contributions helped pay, have no legal
effect on her ownership of the house. But
the district court rejected Carlson’s allegation that Hansing simply made
general contributions to living expenses and did not contribute to the
acquisition of the house. Unlike
Hansing, the Roatch claimant had
contributed only minimally to the acquisition of the property and was not
trying to protect her property.
Finally, Carlson argues that Palmen does not entitle Hansing to an undivided one-half interest in the house and, even if Hansing is owed some form of relief, a forced partition sale is not equitable. We disagree. Palmen addresses the applicability of the anti-palimony statutes. 588 N.W.2d at 495. Hansing sought to enforce an agreement that entitled him to a one-half interest in the house, the district court found that the anti-palimony statutes do not apply and ruled in his favor, and Carlson has not shown that the district court’s factual or legal determinations are erroneous.
The law favors partition in
kind rather than a sale, and the person requesting a sale has the burden of
proving that partition in kind cannot be made without great prejudice to the
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
By making Hansing liable for all mortgage payments, the district court addressed Carlson’s argument that awarding Hansing a one-half interest in the house gave Hansing a windfall. Making Hansing responsible for the mortgage means that each party is responsible for half of the cost of the house. The only windfall involved is the amount by which the parties bought the house below market value and any increase in market value after the parties bought the house. Hansing would have had a one-half interest in both of those amounts if Carlson had conveyed to Hansing a one-half interest in the house, as the district court found the parties had agreed.
 Carlson also cites an unpublished opinion to
support her argument. But unpublished
opinions are of limited value in deciding an appeal. Minn. Stat. § 480A.08, subd. 3(c)
(2004); Vlahos v. R & I Constr., Inc., 676 N.W.2d 672, 676 n.3 (