This opinion will be unpublished and

may not be cited except as provided by

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






Jeffrey P. Magnuson,



Estate of Michael S. Magnuson, et al.,





Kristine Ann Diekmann,



Filed August 15, 2006

Klaphake, Judge


Ramsey County District Court

File No. C8-03-2612


Joseph W. Anderson, 6338 Main Street, Box 8, North Branch, MN  55056 (for respondent)


Roger D. Anderson, 700 St. Paul Building, Six West Fifth Street, St. Paul, MN  55102 (for appellant)


            Considered and decided by Dietzen, Presiding Judge, Klaphake, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N


            Appellant Kristine Diekmann challenges the district court’s decision to appoint a receiver and order the sale of certain residential property located in Maplewood, Minnesota.  The property was the subject of a prior appeal, in which this court affirmed the district court’s reformation of a 1991 deed to allow appellant and her brother, respondent Jeffrey Magnuson, to inherit the property as joint tenants rather than as tenants in common.  Magnuson v. Diekmann, 689 N.W.2d 272 (Minn. App. 2004) (Magnuson I).

            Because appellant was given adequate notice of the relief sought by respondent and because the district court did not err or otherwise abuse its discretion in appointing a receiver and ordering the property sold, we affirm.


            The parties describe this as a partition action, but it is more akin to an action to enforce a settlement agreement.[1]  While the underlying action was in the nature of a partition action, the merits of that action were fully determined in Magnuson I.  The present matter involves respondent’s motion to enforce the parties’ “Binding Settlement Agreement,” in which appellant agreed to purchase respondent’s interest in the property for “$85,000.00—one-half of the agreed upon sale price of $170,000.00” within “90 days of the final court decision.”  Although the final court decision, Magnuson I, was issued by this court in November 2004, appellant has yet to pay respondent $85,000 for his interest in the property.  Respondent thus was forced to bring this motion to find appellant in default of the settlement and to order the property sold; respondent alternatively requested the appointment of a receiver to effectuate a sale.  Respondent claimed that he had been attempting to complete a sale of the property but had been unsuccessful in dealing with appellant.

            Appellant insists that she was not given adequate notice of the relief sought by respondent because his motion was one seeking to find her in “default” of the settlement agreement.  A reading of respondent’s motion and supporting affidavits, however, makes it clear that he was seeking to enforce the parties’ settlement agreement by obtaining the sale of the property and appointment of a receiver.

            Appellant further argues that the district court’s order fully determined the rights of several parties, not just under the settlement agreement, but as to the merits and rights in the underlying action as well, “all without considering any evidence and without any findings of fact to explain and warrant dismissal of [appellant’s] rights in the matter.”  The merits of the case, however, were fully determined in Magnuson I, when this court affirmed the district court’s grant of summary judgment and its reformation of the 1991 deed to allow the parties to take the property as joint tenants.  Respondent’s motion merely sought to enforce the parties’ agreement.

            Appellant next argues that the district court lacked authority or abused its discretion by appointing a receiver.  Respondent requested that the district court appoint a receiver to sell the property at current market value and to divide the proceeds equally between the parties.  At the hearing on his motion, respondent explained that he requested a receiver so that “we can avoid further delays and dates about purchase prices or getting documents signed.”

            The appointment of a receiver is an equitable remedy.  Minn. Hotel Co. v. ROSA Dev. Co., 495 N.W.2d 888, 892 (Minn. App. 1993) (holding that receiver may be appointed when party has consented to appointment in settlement contract).  The initiation of this action as one seeking partition did not remove the district court’s authority to do equity.  See Swogger v. Taylor, 243 Minn. 458, 466-67, 68 N.W.2d 376, 383 (1955) (stating that “once the court has taken jurisdiction of the individual case, its equitable determinations . . . are not restricted to the specific situations and the methods or plans of partition enumerated in the partition act, but it may exercise its general equitable powers and resort to the most advantageous plans”).  In a partition action, the district court is guided by the principles of equity.  The court’s use of the equitable remedy of appointment of a receiver in order to enforce the settlement of the prior partition action was not an abuse of discretion in this case.  See Anderson v. Anderson, 560 N.W.2d 729, 730 (Minn. App. 1997).

            Appellant finally argues that the district court abused its discretion by ordering a sale of the property.  Under Minn. Stat. § 558.14 (2004), the district court may order the sale of property subject to a partition action, if it is alleged in the complaint and established by the evidence that the property is so situated that partition cannot be had without great prejudice to the owners.  Respondent’s complaint made the required allegation, and appellant’s answer and counterclaim did not seek partition in kind.  Moreover, the evidence establishes that the property in dispute here is not amenable to partition in kind:  it is a single-family residence on a city lot.  Finally, by their settlement agreement, the parties contemplated sale of the property in order to satisfy their interests, but appellant has frustrated that agreement by failing to finalize the purchase.  We cannot conclude that the district court abused its discretion by ordering a sale of the property, thus permitting both parties to enjoy the proceeds of their inheritance.


[1]  Respondent insists that this appeal is untimely because not brought within 30 days after July 19, 2005, which is the date that the district court’s order was filed.  Under Minn. Stat. § 558.215 (2004), an appeal in a partition action must be made to the court of appeals “within 30 days after the making and filing of the order or interlocutory judgment.”  Because we construe this case as one to enforce a settlement agreement, rather than an action for partition, and the appeal was taken within 60 days after entry of the judgment, we reject respondent’s assertion that the appeal is untimely.  See Minn. R. Civ. App. P. 104.01 (time to appeal judgment).