This opinion will be unpublished and

may not be cited except as provided by

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






Tollefson Development, Inc.,


The Estate of James McCarthy,


Filed May 23, 2006

Reversed and remanded

Stoneburner, Judge


Dakota County District Court

File No. C201008446


Chad D. Lemmons, Kelly & Fawcett, P.A., 2350 Piper Jaffray Plaza, 444 Cedar Street, St. Paul, MN 55101 (for appellant)


Rollin H. Crawford, Stephen H. Fochler, Jay P. Karlovich, LeVander, Gillen & Miller, P.A., Suite 400, 633 South Concord Street, South St. Paul, MN 55075 (for respondent)


            Considered and decided by Stoneburner, Presiding Judge; Willis, Judge; and Crippen, Judge.*

U N P U B L I S H E D  O P I N I O N




            In this third appeal arising out of a real-estate purchase agreement between appellant and respondent’s decedent, appellant argues that the district court erred in granting summary judgment in favor of respondent and should not have dismissed its claim under the doctrines of collateral estoppel and impossibility.  Because the issues in this case are not identical with issues previously litigated, and because the evidence does not show that, as a matter of law, it is impossible to enforce the purchase agreement through no fault of decedent, we reverse and remand.



            Appellant Tollefson Development, Inc. entered into a purchase agreement with decedent James McCarthy to purchase approximately 60 acres (subject property) of roughly 130 acres that James McCarthy owned as co-tenant with his brother Patrick McCarthy.  The purchase agreement contained nine contingencies and a partition clause that provided:

[Tollefson] agrees to take action in the form of a partition for sale or partition in kind to resolve the interest of [Patrick McCarthy] in the subject property.  [Tollefson] will retain the attorney to process the action.  [James McCarthy] shall reimburse [Tollefson] for the expenses incurred in the litigation action, including attorney fees, at the time of the closing on the property.  [James McCarthy] agrees to cooperate with [Tollefson] in processing said litigation. [James McCarthy] represents that the [sic] owns a one-half undivided tenancy in common interest in the property with his brother, Patrick McCarthy. [James McCarthy] intends to be bound by these terms, and further intends that the partition action resolve the interest of Patrick McCarthy such that this Agreement can proceed to closing on its terms.


            Counsel for Tollefson prepared a summons and complaint to partition the entire 130 acres, naming James McCarthy and Tollefson as plaintiffs.  When James McCarthy refused to sign the complaint verification, asserting that he would not sue his brother, Tollefson sued him to require his participation in the lawsuit under the partition clause.  James McCarthy and Tollefson entered into a settlement agreement that amended several terms of the purchase agreement, but did not specifically address the partition action. 

James McCarthy died, and Patrick McCarthy became the personal representative of James McCarthy’s estate (the estate), respondent in this matter.  Tollefson brought a partition action against Patrick McCarthy.  The district court dismissed the action based on its conclusion that Tollefson’s contingent equitable interest in the property did not give it a sufficient interest in the property to maintain a partition action and that even if Tollefson could maintain a partition action, it could only obtain James McCarthy’s one-half interest in the subject property, making enforcement of the purchase agreement to sell the entire subject property impossible.  In Tollefson Dev. Inc. v. McCarthy, 668 N.W.2d 701 (Minn. App. 2003), (Tollefson I), this court affirmed the dismissal, holding that Tollefson did not have sufficient interest in the property to maintain the action.  Tollefson I did not reach the issue of impossibility of performance. 

            Tollefson next filed a claim in probate court for enforcement of the settlement agreement that it had reached with James McCarthy.  The personal representative disallowed the claim, and Tollefson petitioned the probate court for allowance of the claim.  The probate court concluded that enforcement of the purchase agreement, as modified by the settlement agreement between Tollefson and James McCarthy, was impossible because the settlement agreement required the sale of 60 acres, but limited the location of the boundaries of the subject property, resulting in a parcel that was less than 60 acres.  This court affirmed in an unpublished opinion.  In re Estate of McCarthy,No. A03-1183, 2004 WL 885741, at *2 (Minn. App. Apr. 27, 2004). 

            Tollefson then moved the probate court to set aside the settlement agreement based on impossibility of performance.  The motion was granted.  Tollefson also notified the estate that Tollefson unilaterally waived all contingencies in the purchase agreement.  Tollefson then sued the estate to enforce the original purchase agreement by forcing the estate to initiate a partition action regarding the entire 130 acres owed by James and Patrick McCarthy such that the estate would obtain title to all of the subject property, which it could then convey to Tollefson.  The probate court granted summary judgment in favor of the estate based on collateral estoppel and impossibility of performance.  This appeal followed.



            “On an appeal from summary judgment, we ask two questions:  (1) whether there are any genuine issues of material fact and (2) whether the [district] court[] erred in [its] application of the law.”  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).

A motion for summary judgment shall be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that either party is entitled to a judgment as a matter of law.  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) (citation omitted).

[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.


DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  No genuine issue for trial exists “[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party.”  Id. at 69 (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)).  “[T]he party resisting summary judgment must do more than rest on mere averments.”  Id. at 71.  A genuine issue for trial must be established by substantial evidence.  Id. at 69-70.

The probate court granted summary judgment in favor of the estate, based on its conclusion that under the doctrine of collateral estoppel, it was bound to the conclusion that Tollefson could not bring a partition action against Patrick McCarthy and that even if it could bring such an action, the action would not result in delivery of the property that Tollefson bargained to purchase, making enforcement of the purchase agreement impossible through no fault of the estate.[1]  Tollefson argues that the probate court improperly applied collateral estoppel.  We agree.

The doctrine of collateral estoppel is employed to prevent litigants from relitigating in subsequent actions identical issues that were determined in a prior action.  But we do not apply collateral estoppel rigidly and focus instead on whether an injustice would be worked upon the party upon whom the estoppel is urged. 


Heine v. Simon, 702 N.W.2d 752, 761 (Minn. 2005) (quotation and citations omitted).

The availability of collateral estoppel is a mixed question of law and fact subject to de novo review.  Id.  Collateral estoppel prevents a party from relitigating an issue when the following four-prong test is met:

(1) the issues in the prior and present adjudication must be identical; (2) there must have been a final adjudication on the merits; (3) the estopped party must have been a party or in privity with a party to the prior adjudication; (4) and the estopped party must have been given a fair and full opportunity to be heard on the adjudicated issue.




Tollefson correctly asserts that the issue in the current litigation is distinct from issues in the prior actions.  Tollefson I was a direct action by Tollefson against Patrick McCarthy seeking a partition, and the prior claim against the estate sought to enforce the amended purchase agreement which has now been vacated.  The current claim is against the estate, to compel the estate to fulfill the terms of the original purchase agreement by initiating or joining an action to partition the entire 130 acres owned by the estate and Patrick McCarthy.  This issue has not previously been litigated.  Because the issues previously litigated are not identical with the issue in this litigation, collateral estoppel does not apply.  Because the probate court’s finding of impossibility was also based on the erroneous application of collateral estoppel, we reverse the summary judgment.

The estate urges affirmance of summary judgment on other grounds that were briefed and argued, but not addressed by the probate court.  First, the estate argues that the plain language of the purchase agreement requires only that Tollefson bring a partition action.  The estate contends that the purchase agreement cannot be read to require the estate to bring or join an action to partition the entire 130 acres in order to effectuate the purchase agreement.  The estate argues that because under the plain language of the purchase agreement only Tollefson is required to be a party to the partition action, Tollefson can never obtain title to more than one-half of the subject property, making enforcement of the purchase agreement impossible under its unambiguous terms.  We disagree. 

The partition clause requires James McCarthy to cooperate in “said litigation,” and provides that James McCarthy “intends to be bound by these terms, and further intends that the partition action resolve the interest of Patrick McCarthy such that this Agreement can proceed to closing on its terms.”  At a minimum, this provision creates a fact question about whether the estate is bound by the provision to initiate or join in a partition action that will allow the purchase to proceed.  Tollefson has demonstrated that without such cooperation the agreement cannot proceed to closing on its terms and that with such cooperation the agreement can proceed to closing on its terms, as intended by James McCarthy. 

The estate next argues that even if the partition clause can be read to require the estate to join a partition on the entire 130 acres, Tollefson should be judicially estopped from enforcing such a provision in light of its prior inconsistent arguments to the courts.  Specifically, the estate points to Tollefson’s arguments in its partition action against Patrick McCarthy that “Tollefson, as contract purchaser, is the only party who can seek partition in this matter[,]” that “because Tollefson sought full performance of the contract, the Estate of James McCarthy can no longer seek partition[,]” and that “[i]f the Estate can no longer seek partition, who can?  The only answer is Tollefson as the contract purchaser[.]”

The estate acknowledges that the doctrine of judicial estoppel has never been applied in Minnesota, but argues that this is the perfect case for such application.  In State v. Pendleton, 706 N.W.2d 500, 507 (Minn. 2005), the supreme court declined to adopt the doctrine of judicial estoppel.  The supreme court stated:

Generally, the doctrine requires that three conditions be met.  First, the party presenting the allegedly inconsistent theories must have prevailed in its original position (a litigant is not forever bound to a losing position).  Second, there must be a clear inconsistency between the original and subsequent position[s] of the party.  Finally, there must not be any distinct or different issues of fact in the proceedings.


Pendleton, 706 N.W.2d at 507 (quotation omitted)Therefore, even if this court were inclined to consider application of the doctrine of judicial estoppel, which it is not, the doctrine would not apply in this case because Tollefson did not prevail on its previous claims that only Tollefson could bring a partition action.

Reversed and remanded.

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

[1] There is no dispute that the estate has stepped into the shoes of James McCarthy and assumes the rights and duties of James McCarthy under the purchase agreement.