This opinion will be unpublished and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
Michael Mickolichek, et al.
Delores F. Saar,
Filed October 3, 2006
McLeod County District Court
File No. C2-04-1023
Eric J. Braaten, Nicklaus,
Braaten & Hollenhorst, PLLC,
Peter J. Kasal, Keefe &
Kasal, 720 Century Avenue Southwest,
Considered and decided by Halbrooks, Presiding Judge; Hudson, Judge; and Parker, Judge.*
U N P U B L I S H E D O P I N I O N
On appeal in this dispute relating to the breach of a real estate purchase agreement, appellant-seller argues the record does not support the district court’s findings that (a) her agent had actual or apparent authority to sell the property, or (b) the contract was validly formed. Because the district court’s findings that appellant’s agent had actual authority to sell the property and that a valid contract existed were not clearly erroneous, we affirm.
Delores Saar is the owner of commercial real property (the property) located
outside the city of
a case tried by the district court without a jury, this court is limited to
determining whether the district court’s findings are clearly erroneous and
whether the court erred in its conclusions of law. Powell v.
MVE Holdings, Inc., 626 N.W.2d 451, 457 (Minn. App. 2001), review denied (
appellant challenges the district court’s findings that appellant’s agent acted
with either actual or apparent authority to complete the transaction. Whether an agent acted with the principal’s
authority is a question for the fact-finder.
See Gulbrandson v. Empire Mut.
Ins. Co., 251
Here, the district court found that appellant gave Peterson express, actual authority without limitation to act as her agent in selling the property. Alternatively, the district court found that “even if [appellant] had not given [Peterson] unlimited express authority with respect to selling the [property], this Court finds that [Peterson] had apparent authority to negotiate all of the terms of the purchase agreement.” These findings are amply supported by the record. Peterson had been appellant’s accountant for nearly 30 years, and appellant had numerous business dealings with him during the four-year period prior to the trial. And on this specific occasion, appellant acknowledged that she employed Peterson as her agent to help with the sale of the property. Further, the record includes testimony from respondent that when he called appellant to ask her about the property, she told him that the property was for sale and that he should contact Peterson because “she was 80-years-old and did not want to take on the dealings of the sale.” Appellant further testified that “anybody that called because of the [property], I would send them to [Peterson].” Appellant testified that she went to Peterson’s office and signed blank RE/MAX papers on January 7, 2004. Appellant testified that, because of her relationship with Peterson, she would have signed anything he asked “because he was my confidant.” Further, during cross-examination appellant was asked if she felt that it was “Peterson’s responsibility, acting as your agent, to negotiate a proper price.” Appellant answered, “Yes.” In sum, the record demonstrates that appellant relied on Peterson and held him out to be her agent, thereby giving Peterson—at a minimum—apparent authority to act on her behalf to sell the property. And if, as appellant claims, she signed a blank purchase agreement with Peterson, her conduct shows that Peterson had actual authority to negotiate the terms of the agreement as well. Moreover, if the purchase agreement was not blank when appellant signed it (as Peterson, Otteson, and respondents contend), appellant’s signature on those pages demonstrates that she agreed with Peterson’s negotiated terms of the purchase agreement at the time she signed the agreement. Although appellant now claims that Peterson had no authority to set the terms of the sale or to sign any documents for appellant, on this record, and in deference to the district court’s credibility determinations, we conclude that the district court did not clearly err in finding that appellant gave Peterson actual authority to act as her agent in selling the property.
appellant argues that the district court clearly erred in finding that the
contract was valid because the contract was not fully executed before the deadline
imposed for acceptance under the terms of the contract. Generally, whether a contract actually
exists, as well as the terms of the contract, are questions of fact to be
determined by the fact finder. TNT Props., Ltd. v. Tri-Star Developers LLC,
677 N.W.2d 94, 101 (
Appellant argues that, under Callender v. Kalscheuer, 289 Minn. 532, 533, 184 N.W.2d 811, 812 (1971), a contract with a time limit is null and void if not accepted before that limit expires. In Callender, the supreme court affirmed summary judgment for a seller when the buyer attempted to accept seller’s offer three days after the expiration of the limited offer and there was no written extension of time. Callender, 184 N.W.2d at 812.
Callender, however, is inapposite. First, in Callender
the supreme court affirmed summary judgment, thus the standard of review was
different from that in the present case.
Callender and the instant case
share some similarities but on pivotal points are factually distinguishable as
well. Like Callender, the operative document here included a clause setting a
specific deadline for acceptance—in this case February 6, 2004. And in Callender,
the court observed that when “the time for acceptance of an offer is limited
. . . the limit is absolute and time is of the essence.”
Further, the time-is-of-the-essence provision was included for respondents-buyers’ benefit, as they wanted to hire contractors to prepare the property for its planned use. It is also noteworthy that appellant does not dispute any of the terms of the addendum page. Indeed, the district court found that the real bases for appellant’s refusal to perform was her belief that the negotiated price was too low and that she would have difficulty moving her belongings off the property by the time of the closing. On this record, the district court did not clearly err in determining that a valid contract existed.
decline to address appellant’s remaining arguments. Appellant’s argument regarding lack of acceptance
due to an alleged counteroffer was not raised before the district court, and we
decline to consider it here. See Thiele v. Stich, 425 N.W.2d 580, 582
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 Peterson testified that the RE/MAX papers were complete when appellant signed them and Otteson testified that she drafted the papers on January 30, 2004.
 Otteson testified she had subsequently prepared a new first page for the purchase agreement when appellant changed the purchase amount to shift Otteson’s fees to the buyer.