This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. sec. 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-524

Jane Walton,

Respondent,

vs.

Harold Sellers, et al.

Appellants.

Filed October 22, 1996

Affirmed

Thoreen, Judge

[*]

Clay County District Court

File No. C3-95-1855

H. Malcolm Pippin, Nilles, Hansen & Davies, Ltd., 1800 Radisson Tower, 201 North Fifth Street, P.O. Box 2626, Fargo, ND 58108 (for Respondent).

Randolph E. Stefanson, Tina Syring-Petrocchi, Stefanson, Plambeck & Foss, 403 Center Avenue, Suite 600, P.O. Box 1287, Moorhead, MN 56561-1287 (for Appellants).

Considered and decided by Huspeni, Presiding Judge, Amundson, Judge, and Thoreen, Judge.

U N P U B L I S H E D O P I N I O N

THOREEN, Judge

Respondent sued appellants for breach of contract. The district court granted summary judgment for respondent. Appellants argue on appeal that genuine issues of material fact precluded the grant of summary judgment. We affirm.

FACTS

Respondent purchased certain real property from appellants by contract for deed dated April 2, 1979 (contract, or Sellers-Walton contract). The contract required respondent to make a down payment of $34,500, and annual payments thereafter of $15,500 until respondent had paid off the balance of the $138,000 purchase price plus interest. Appellants agreed under the contract that upon respondent's payment of the full purchase price of the property, plus interest, appellants would deliver clear title to the property to respondent. At the time of the contract, appellants owed approximately $65,000 on FHA loans secured by a mortgage on the property.

On January 14, 1981, respondent entered into a second contract for deed (Walton-Driscolls contract), with Driscoll Brothers (Driscolls), a farming partnership, under which respondent agreed to deliver clear title to Driscolls upon Driscolls' payment to respondent of the full purchase price of the property. Pursuant to the Walton-Driscolls contract, respondent placed $12,000 in escrow as a guarantee against title defects in the property. From April 1981 until April 1983, and at the direction of appellants, respondent made payments due under the Sellers-Walton contract directly to the FHA to reduce appellants' debt with the FHA. In December 1983, appellants, respondent, and Driscolls agreed that Driscolls would make certain payments due under the Walton-Driscolls contract directly to appellants, or to the FHA on appellants' behalf.

Respondent made or caused to be made all payments required under the Sellers-Walton contract. Driscolls made all payments required under the Walton-Driscolls contract. When respondent completed performance under the Sellers-Walton contract, appellants could not, however, deliver clear title to respondent because FHA records indicated that appellants still owed $13,100 and the FHA would not satisfy its mortgage. Because appellants could not deliver clear title to respondent, respondent in turn could not deliver clear title to the property to Driscolls. In order to clear title to the property and prevent a breach of the Walton-Driscolls contract, $14,396.86 of respondent's funds (including the escrow funds) were sent to the FHA.

D E C I S I O N

On an appeal from summary judgment, a reviewing court must ask whether any genuine issues of material fact exist and whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). "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).

A district court shall grant a motion for summary judgment where the pleadings, depositions, answers to interrogatories, and affidavits and admissions on file show that no genuine issue of material fact exists and that either party is entitled to a judgment as a matter of law. Minn R. Civ. P. 56.03. In deciding a motion for summary judgment, a district court must not decide factual issues, but rather must determine whether any factual issues exist. Nord v. Herreid, 305 N.W.2d 337, 339 (Minn. 1981). A district court may, however, make findings of fact to clarify the basis for its decision. Whisler v. Findeisen, 280 Minn. 454, 455, n.1, 160 N.W.2d 153, 154 (1968).

Respondent sued appellants on a breach of contract. In order to prevail on this claim, respondent needed to show that: (1) the parties formed a valid contract; (2) respondent performed under the contract; (3) appellants failed to fully perform; and (4) appellants' nonperformance caused respondent damages. Industrial Rubber Applicators, Inc. v. Eaton Metal Products Co., 285 Minn. 511, 513, 171 N.W.2d 728, 730-31 (1969). The parties do not dispute that they formed a valid contract. Appellants admit by affidavit and in their answers to interrogatories that respondent fully performed under the contract by making all payments due appellants under the contract. The record further shows that appellants failed to convey clear title to respondent, causing respondent damages of $14,396.86. Appellants did not produce contradictory evidence on any of these factual issues.

Appellants contend the court's finding that respondent was not responsible for payment of the FHA loans was improper in light of respondent's payments to the FHA and respondent's alleged execution of an assignment of a contract for deed in favor of the FHA. Contrary to appellants' assertions, the evidence shows that respondent agreed to make payments due under the contract to the FHA with appellants' approval. The record does not show, as appellants allege, that respondent agreed to be responsible for appellants' indebtedness to the FHA. A party opposing summary judgment cannot rely on mere averments in pleadings or unsupported allegations. Naegele Outdoor Advertising Co. v. City of Lakeville, 532 N.W.2d 249, 254 (Minn. App. 1995), review denied (Minn. July 20, 1995). The district court properly determined that no genuine issue of material fact existed concerning respondent's obligations to the FHA.

The real dispute here is between appellants and the FHA. The fact that the FHA may have miscalculated the amount owing or made other errors that resulted in not properly crediting payment to appellants' loans does not relieve appellants of the obligation to furnish respondent clear title when they admitted that respondent has made all payments due under the contract. The fact that the district court refused to join the FHA as a third-party defendant is immaterial to its finding in favor of respondent. Appellants can assert these claims against the FHA in a separation action. The district court properly granted summary judgment for respondent.

Affirmed.

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