This opinion will be unpublished and

may not be cited except as provided by

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







Richard T. Ketterling,





Carolyn Hamilton, et al.,





James Hamilton,





Richard T. Ketterling, et al.,



Filed August 8, 2006

Affirmed; motion denied

Willis, Judge


Scott County District Court

File Nos. 70-CV-05-17579, 70-CV-05-15899, & CV-05-19264


James J. Kretsch, Jr., Ronald J. Rasley, Curtin & Rasley, P.A., 8500 Normandale Boulevard, Suite 960, Minneapolis, MN  55437 (for respondent)


Erik F. Hansen, Benjamin R. Skjold, Christopher P. Parrington, Hellmuth & Johnson, PLLC, 10400 Viking Drive, Suite 500, Eden Prairie, MN  55344 (for appellants)


            Considered and decided by Randall, Presiding Judge; Willis, Judge; and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N


            In this consolidated appeal, appellants argue that the district court (1) abused its discretion by denying a motion for a temporary injunction staying respondent’s eviction action and (2) erred by ordering their eviction.  Because we determine that the district court did not abuse its discretion by denying the temporary-injunction motion and that the record supports the district court’s judgment of eviction, we affirm.  Respondent moves to strike the statement of facts in appellants’ brief on appeal, as well as appellants’ appendix and certain of their arguments, and to dismiss appellants’ appeal.  We deny respondent’s motion.


            In December 2003, respondent Richard Ketterling, a real-estate agent, prepared a document titled “exclusive right to sell listing contract” regarding appellants James and Carolyn Hamilton’s property in Prior Lake, which consisted of a house and approximately seven acres of land.  The listing agreement was to be effective December 30, 2003, and terminate December 31, 2004.  Ketterling testified that although the listing agreement contained his “printed signature” and that he “dropped the paper work off” with the Hamiltons, he did not enter into a contract with them because they never returned the agreement to him.

In February 2004, the Hamiltons sold their property to Ketterling, giving him a warranty deed.  Ketterling testified that in March or April 2004, he and Carolyn Hamilton entered into an oral lease agreement by the terms of which the Hamilton family rented the property from Ketterling for a monthly payment of $3,500.

Ketterling testified that although the Hamiltons made rental payments from June through October 2004, they stopped making payments in November even though they continued to live in the house.  That winter, James Hamilton had a stroke and underwent brain surgery.  In January 2005, during Hamilton’s hospitalization, Ketterling visited the hospital and spoke with Carolyn Hamilton and two Hamilton children, Shane and Alexander, both of whom lived with their parents.  Ketterling testified that he told the family that “they needed to make their rent but they shouldn’t worry about that month’s rent at that time.  That they could make that month up the next month.” 

Ketterling testified that although he thereafter made repeated demands for payment, the Hamiltons did not “come current on their rent.”  In the summer of 2005, Ketterling served eviction notices on James, Carolyn, Shane, and Alexander Hamilton.  Ketterling filed a motion in limine seeking to bar the Hamiltons from introducing in the eviction proceeding any claims of ownership of the property.  The district court granted Ketterling’s motion, reasoning that an eviction proceeding determines the right to present possession and that the “appropriate procedure in a case with title-related counterclaims is for the defendant to proceed with a separate district court action and to use that action to enjoin [the] eviction order,” citing AMRESCO Residential Mortgage Corp. v. Stange, 631 N.W.2d 444, 445-46 (Minn. App. 2001), which describes such a procedure.   

Therefore, in September 2005, James Hamilton filed a complaint against Ketterling and others, alleging fraud, deceptive trade practices, unjust enrichment, insufficiency of consideration, unconscionability, breach of fiduciary duty, promissory estoppel, and conspiracy.  Hamilton asserted, inter alia, that (1) as part of Ketterling’s purchase of the Hamilton property, the parties agreed that Ketterling would give the Hamiltons a contract for deed for repurchase of the property but that Ketterling never gave the Hamiltons the contract for deed; (2) Ketterling’s purchase of the property was “invalid” for insufficient consideration; and (3) Ketterling breached his fiduciary duty because he “fraudulently” obtained ownership of the property while acting as the Hamiltons’ real-estate agent.  As part of his requested relief, James Hamilton asked that the court grant a temporary restraining order enjoining the eviction proceedings “pending the duration of [Hamilton’s] action and a determination by the Court as to who has legal title to the Property.” 

On September 13, 2005, the district court held both a hearing on James Hamilton’s motion for the temporary restraining order and the trial of the eviction action.  On September 14, 2005, the district court issued an order denying Hamilton’s motion for a temporary injunction and a separate order in the eviction proceeding, determining that Ketterling was entitled to possession of the property.  James Hamilton appealed the order denying his motion for a temporary injunction, and the Hamiltons together appealed the eviction judgment.  This consolidated appeal follows.



As a threshold matter, Ketterling moves, inter alia, to strike the statement of facts in the Hamiltons’ brief and a portion of the appendix because the statement of the facts relies almost entirely on James Hamilton’s unverified complaint as support and the objected-to portion of the appendix contains a copy of the complaint.  The record shows that nearly all of the claims in Hamilton’s complaint are allegations unsupported by affidavit.  Because the objected-to portions of Hamiltons’ statement of the facts and appendix are not supported by evidence, we have not relied on them in this appeal.  Thus, we determine that Ketterling’s motion to strike is moot and deny it.  See Berge v. Comm’r of Pub. Safety, 588 N.W.2d 177, 180 (Minn. App. 1999) (finding it unnecessary to address merits of motion to strike when appellate court did not rely on objected-to portions). 

Ketterling also moves to strike James Hamilton’s arguments challenging the district court’s denial of the temporary injunction, asserting that there is “no evidence before this Court to support [Hamilton’s] appeal” because Hamilton’s request for a temporary injunction was not supported by affidavit, deposition, or oral testimony.  But our review of the merits of Hamilton’s claim requires that we evaluate whether the evidence, or lack thereof, supports the district court’s denial of the motion for a temporary injunction.  See Minn. R. Civ. P. 65.02(b) (providing that a temporary injunction may be granted when affidavits, depositions, or oral testimony establish sufficient grounds for the injunction).  Therefore, we deny Ketterling’s motion to strike Hamilton’s temporary-injunction arguments.

Other than the arguments made in support of his motion to strike, Ketterling asserts no further reason for his motion to dismiss.  Thus, because we have denied Ketterling’s motion to strike, we further deny his motion to dismiss the Hamiltons’ appeal.


“A decision on whether to grant a temporary injunction is left to the discretion of the trial court and will not be overturned on review absent a clear abuse of that discretion.”  Carl Bolander & Sons Co. v. City of Minneapolis, 502 N.W.2d 203, 209 (Minn. 1993).  We review the district court’s decision by determining whether the district court properly considered the following factors: (1) the nature and relationship of the parties; (2) the balance of relative harm between the parties; (3) the likelihood of success on the merits; (4) public-policy considerations; and (5) any administrative burden involving judicial supervision and enforcement.  Dahlberg Bros. v. Ford Motor Co., 272 Minn. 264, 274-75, 137 N.W.2d 314, 321-22 (1965).  The district court determined that appellants were unlikely to succeed on the merits and that public-policy considerations weighed against the granting of the temporary injunction.  The Hamiltons assert that the district court abused its discretion in its consideration of the Dalberg factors.

The district court determined that James Hamilton did not have “any kind of realistic hope of prevailing on the merits” because, although Hamilton’s primary argument was that Ketterling agreed to give the Hamiltons a contract for deed for the property, there was no written contract to “memorialize the terms of this purported deal” and the statute of frauds would bar any other evidence of the existence of the alleged contract for deed.  See Minn. Stat. § 513.05 (2004) (providing that contracts for the sale of land must be in writing).  Appellants assert, however, that the statute of frauds would not bar evidence of the alleged contract for deed because the statute of frauds may not be used to protect a fraud.  See Nelson v. Smith, 349 N.W.2d 849, 853 (Minn. App. 1984) (providing that “[w]hen an application of the Statute of Frauds is used to protect, rather than prevent, a fraud, equity requires that the doctrine of equitable estoppel be applied”), review denied (Minn. July 26, 1984).  But the record shows that James Hamilton provided the district court with no evidence of fraud by Ketterling. 

Appellants further assert that the statute-of-frauds issue is irrelevant because James Hamilton does not have toshow the “existence” of the contract for deed toprevail on his cause of action.  They assert that, instead, James Hamilton can prevail by showing either that (1) Ketterling did not provide adequate consideration for the warranty deed that James and Carolyn Hamilton gave him or that (2) Ketterling violated his fiduciary duty as a real-estate agent by obtaining the warranty deed to the property because he “fraudulently” obtained the deed by not delivering to the Hamiltons a contract for deed for repurchase of the property.  But the district court determined that Hamilton had not presented “any potential evidence to the Court that would make [Hamilton’s] claim likely viable.”  The record supports this determination.  James Hamilton provided no evidence to the district court on the issue of consideration for the warranty deed; Ketterling, however, supplemented the record with additional information that shows that he paid off hundreds of thousands of dollars of the Hamiltons’ debts in exchange for their execution of the warranty deed to him.  And Ketterling’s affidavit and testimony indicate that, although he gave Hamiltons the listing agreement for their property, they decided not to list the property for sale and did not return the agreement to him.  James Hamilton offered no contrary evidence. 

Because the record shows that James Hamilton submitted no evidence to support any of the claims in his complaint, the district court did not abuse its discretion by determining that appellants were unlikely to succeed on the merits.  And because a district court errs as a matter of law by granting a temporary injunction if a plaintiff cannot show likelihood of success on the merits, we need not consider whether the district court abused its discretion in its analysis of public-policy considerations.  See Metro. Sports Facilities Comm’n v. Minn. Twins P’ship, 638 N.W.2d 214, 226 (Minn. App. 2002), review denied (Minn. Feb. 4, 2002).

The district court alternatively determined that James Hamilton was not entitled to a temporary injunction based on the “clean-hands” doctrine.  See Edin v. Jostens, Inc., 343 N.W.2d 691, 694 (Minn. App. 1984) (determining that a party seeking equitable relief must do so “with clean hands”).  Because we affirm the district court’s decision to deny the temporary injunction on the ground that it properly determined that the Dahlberg likelihood-of-success factor weighed against granting a temporary injunction, we need not consider either whether the district court properly decided the clean-hands issue or Ketterling’s motion to strike appellants’ argument regarding that issue. 


Appellants argue that the district court erred in the eviction action by finding that Ketterling was entitled to possession of the property and that he did not waive his right to rent.  On appeal from an eviction judgment, this court reviews the district court’s findings of fact for clear error.  Cimarron Village v. Washington, 659 N.W.2d 811, 817 (Minn. App. 2003).

Appellants assert that Ketterling failed to provide sufficient evidence that he was entitled to possession of the property because he owned the property and, thus, was their landlord.  The plaintiff in an eviction action must plead and prove facts that show that the defendant is in unlawful possession of the property, and the only issue for trial is whether the facts alleged in the complaint are true.  Mac-Du Props. v. LaBresh, 392 N.W.2d 315, 317 (Minn. App. 1986) (applying rule in unlawful-detainer case), review denied (Minn. Oct. 29, 1986).  An eviction action has a limited scope and is summary in nature.  Minn. Stat. § 504B.001, subd. 4 (2004); Lilyerd v. Carlson, 499 N.W.2d 803, 812 (Minn. 1993); AMRESCO Residential Mortgage Corp. v. Stange, 631 N.W.2d 444, 445 (Minn. App. 2001).  The district court’s determination is limited to the right of present possession, and the action does not adjudicate the ultimate legal or equitable right of ownership.  Dahlberg v. Young, 231 Minn. 60, 68, 42 N.W.2d 570, 576 (1950).  Generally, a party may not challenge the ownership or title of the property in an eviction action but should raise these issues in separate district court proceedings.  AMRESCO, 631 N.W.2d at 445-46.[1]  Thus, because (1) Ketterling testified at the eviction trial that he entered into an oral, month-to-month lease with Carolyn Hamilton, who agreed to pay him monthly rent of $3,500, (2) Ketterling testified that the Hamiltons failed to pay rent from November 2004 to August 2005, and (3) the Hamiltons produced no contrary evidence, we conclude that the district court did not err by holding that Ketterling was entitled to possession of the property.

            The Hamiltons next assert that the district court erred by finding that Ketterling did not waive his right to receive rent under the alleged lease agreement and, therefore, was not entitled to evict them.  Ketterling testified that when he visited the Hamilton family in the hospital following James Hamilton’s stroke, he told them that “they needed to make their rent but they shouldn’t worry about that month’s rent at that time” because “they could make that month up the next month.”  Alexander Hamilton testified that Ketterling told the family “not to worry about the payments right now.”  Shane Hamilton testified that Ketterling told the family, “You guys have enough worry – you guys have enough to worry about here.  Don’t worry about the payments.”  The district court found that although Ketterling had told the Hamiltons that they would be given additional time to make rent payments because of health and financial difficulties, it was “clear that at some point those payments would be resumed.”  Because there is reasonable evidence to support the district court’s findings, the district court did not err by determining that Ketterling did not waive his right to receive rent.

            Affirmed; motion denied.

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


[1] Minn. Stat. § 504B.121 (2004) could be construed to allow the litigation of title questions in eviction actions if certain factual prerequisites are present in the eviction action.  But the statute was not cited to the district court or to this court.  And the meaning of the current version of this statute has not been addressed by the appellate courts of this state.  Under these circumstances, we decline to address what application, if any, Minn. Stat. § 504B.121 might have to the facts here.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that appellate courts generally address only issues presented to and considered by the district court).