This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).







The Estate of:  Theodore B. Nistler,




Filed October 16, 2007


Lansing, Judge



Stearns County District Court

File No. P5-02-4784


Douglas A. Ruhland, Ruhland Law Office, Ltd., 366 Church Street North, Post Office Box 439, Eden Valley, MN 55329 (for appellant Estate of Theodore B. Nistler)


Tim Sime, Rinke-Noonan, 1015 West St. Germain Street, Suite 300, P.O. Box 1497, St. Cloud, MN 56302-1497 (for respondent Stearns County)


            Considered and decided by Lansing, Presiding Judge; Klaphake, Judge; and Muehlberg, Judge.*

U N P U B L I S H E D   O P I N I O N


On appeal following remand, the heirs of Theodore Nistler challenge the district court’s order granting a decree of descent that assigns each of them a one-fifth interest in the redemption rights to Nistler’s former homestead.  The heirs’ principal argument is that the district court failed to comply with the remand instructions.  The district court’s determination of descent necessarily took into account an intervening sheriff’s execution sale of the estate’s sole asset, and the descent decree is not inconsistent with the remand instructions.  Because the remaining challenges provide no basis for reversal, we affirm.


            This five-year series of petitions, motions, and appeals centers on the Stearns County homestead of Theodore Nistler and the competing claims to an interest in the property asserted by Nistler’s five children, as beneficiaries under his will, and by Stearns County, as the provider of medical-assistance benefits that qualify as a lien against the property under Minnesota’s estate-recovery statute, Minn. Stat. § 256B.15 (2006). 

            At the time of Nistler’s death in 1994, he owned and lived on the homestead with his wife who held a life estate created by a prenuptial agreement.  In the years before his death, Nistler received substantial medical assistance from Stearns County Human Services.  The homestead, Nistler’s only major asset, was devised to his children under his will.  Following his death, Nistler’s wife continued to live on the homestead until she moved to a nursing home in 2002.  Nistler’s heirs did not submit his will to probate until his wife moved to the nursing home.  

            In 2002 Nistler’s heirs decided to sell the homestead.  They spent about $17,000 preparing the property for sale and entered into a sales agreement with a purchase price of $89,000.  At closing, Nistler’s heirs were unable to establish marketable title to the property because Nistler’s estate had not been probated.  By agreement with the purchaser, Nistler’s heirs deposited $2,700 in an escrow account to cover the legal costs of obtaining a decree of descent.  The remaining proceeds, after deduction of the home-improvement and sale costs, were distributed to the five children equally as heirs.

            In October 2002 Daniel Nistler, as an interested person, filed a petition in Stearns County District Court for a decree of descent to distribute interests in the propety equally to the five Nistler children who were listed as heirs in the will accompanying the petition.  In November 2002 Stearns County filed a medical-assistance claim for $79,013.12.  Nistler’s heirs objected to the claim as time-barred and as unjust enrichment.  On July 23, 2003, the district court overruled the Nistler heirs’ objections, held that the county could recover the claim for medical assistance, and concluded that the heirs’ expenditure of money to prepare the property for sale, although unfortunate in light of the precedence of the medical-assistance claim, could not qualify as an expense of administration in a decree-of-descent proceeding.  On December 17, 2003, the district court issued an order requiring the Nistler estate to pay the county’s $79,013.12 claim for medical assistance expended on Nistler’s behalf.

            No appeal was taken from the July 23, 2003 or the December 17, 2003 order.  On August 4, 2005, the county entered judgment on the December 17, 2003 order.  The Nistler heirs appealed the August 4, 2005 judgment to this court.  A special-term panel determined that because the Nistler heirs failed to appeal the July 23, 2003 and December 17, 2003 orders within the statutory six-month appeal period, they could no longer obtain review of the district court’s determination of the validity of the county’s medical-assistance claim or the denial of their claim for unjust enrichment, but any remaining claims could proceed.  Estate of Nistler, No. A05-1956 (Minn. App. Nov. 15, 2005) (order).

            After oral argument in the initial appeal, this court reversed and remanded on narrow grounds that involve issues collateral to the county’s medical-assistance judgment.  Estate of Nistler, No. A05-1956, 2006 WL 2598053, at *3 (Minn. App. Sept. 12, 2006).  The opinion noted that the heirs’ claim for $17,000 as an administration cost had not been presented to the district court and consequently the district court’s determination that it was time-barred was reversed and remanded.  Id. at *4.  The opinion further noted that, because the district court had not ruled on either the availability of funds to pay the county’s claim or the claimed priority of the heirs’ claim for attorneys’ fees, it was premature to decide these issues on appeal.  Id. at *3.  In remanding, the opinion referred to the fact that the purchaser of the homestead property was not a party to the litigation and expressed an expectation that the remaining issues could all be considered in one proceeding on remand.  Id. at *3 n.2.

While the appeal was pending, the county notified the Nistler heirs of its intent to obtain a writ of execution, levy on, and sell the property at a sheriff’s execution sale unless the heirs provided a supersedeas bond to stay the enforcement proceeding.  No supersedeas bond was filed.  The record contains no indication that the parties informed this court of the writ of execution while the first appeal was pending.  This court’s opinion, issued in September 2006, specifically states that “there has been no action attempting to collect on the judgment against the estate or to recover the proceeds from the sale paid to Nistler’s heirs.”  Id. at *3.  On August 9, 2006, before the release of the opinion in the initial appeal, the real estate was sold at a sheriff’s execution sale to Stearns County Human Services to satisfy the judgment on the medical-assistance claim.

            At the hearing following remand, the district court took into consideration the execution sale.  The district court concluded that, as a result of the levy and sale of the homestead, the only property remaining in the estate that could be decreed to the heirs is the right of redemption.  By separate order the district court ordered a decree of descent that assigned each heir one-fifth of the redemption rights from the sheriff’s sale of the house. 


            The Nistler heirs frame their principal issue in this second appeal as a question of whether the district court complied with this court’s remand instructions in the first appeal.  Although the remand instructions form a basis for some of the issues raised in this second appeal, these instructions must be examined in the context of the parallel action enforcing the medical-assistance judgment and also in light of the touchstone of reasoned appellate review:  that an issue must first be properly raised and decided in the district court before it can be raised on appeal.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

            In general, a district court lacks authority to modify or amend the mandate of an appellate court.  Halverson v. Vill. of Deerwood, 322 N.W.2d 761, 766 (Minn. 1982).  But if the appellate court does not specifically direct the district court on how to proceed, the district court has broad discretion to handle the matter so long as its discretion is exercised consistent with the remand order.  Duffey v. Duffey, 432 N.W.2d 473, 476 (Minn. App. 1988) (citing John Wright & Assocs., Inc. v. City of Red Wing, 256 Minn. 101, 102-03, 97 N.W.2d 432, 434 (1959)).

            If, on remand, an issue arises that was not part of the determination in the initial appeal or that the instructing court did not anticipate, the district court acts within its authority by taking the intervening facts into account so long as it proceeds in a manner that is not inconsistent with the remand instructions.  Halverson, 322 N.W.2d at 766-67 (addressing unanticipated problems that precluded determination of boundaries according to remand instructions); Wright, 256 Minn. at 103-04, 97 N.W.2d at 434-35 (addressing unanticipated lease agreement not presented to district court or appellate court in initial proceedings).

            The county’s enforcement of its medical-assistance lien was not a part of the facts presented in the initial appeal.  The opinion in the first appeal specifically commented that no enforcement action had been initiated.  Estate of Nistler, No. A05-1956, 2006 WL 2598053, at *3 (Minn. App. Sep. 12, 2006).  This parallel action for enforcement, which was not raised in the first appeal, was nearly concluded when the first appeal was argued in this court.  The Nistler heirs did not respond to the county’s letters indicating that a supersedeas bond was necessary to prevent a sheriff’s execution sale and did not attempt to stay the enforcement proceeding by filing a bond.  See Minn. R. Civ. App. P. 108.01, subd. 1 (stating that filing of appeal does not stay enforcement of judgment but appellant may obtain stay by filing supersedeas bond).  Although Minn. Stat. § 525.714 (2006) also addresses suspension of the operation of an order or judgment pending appeal in a probate action, this provision does not relieve an appellant from the obligation to file a supersedeas bond under Minn. R. Civ. App. P. 108.01, subd. 1, to obtain a stay of enforcement pending appeal.  In re Estate of Goyette, 376 N.W.2d 438, 441 (Minn. App. 1985).

            Before the district court’s hearing on remand, the county had levied on and sold the homestead property.  The sale of the property meant that the county’s medical-assistance claim had been satisfied and that the district court could conclude the descent-decree proceedings.  See Minn. Stat. § 525.312 (2006) (stating that court shall enter decree of descent when medical-assistance claim is paid or satisfied); see also Minn. Stat. § 645.44, subd. 16 (2006) (stating “shall” is mandatory). 

            On remand, the district court responded to the circumstances as they existed at the time of the remand hearing.  It acted well within its discretion to recognize the effect of the sheriff’s sale and to grant the decree of descent on the only remaining property interest, which was the right of redemption.

            The remand instructions did not envision the sale of the homestead property and the satisfaction of the county’s claim through a sheriff’s execution sale.  Because of the changed circumstances that had not been anticipated in the first appeal or litigated in the underlying proceeding, the only issue left for the district court to determine on remand was whether the decree of descent could issue.  The court’s issuance of the decree was, in these circumstances, within its discretionary power and not inconsistent with the remand instructions.  The remaining issues were either not presented to the district court or do not provide a basis for reversal.


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