This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-96-1170

James R. Lorr,

Appellant,

vs.

Jeffrey A. Oppegard, et al.,

Respondents.

Filed January 14, 1997

Affirmed

Forsberg, Judge

[*]

Dakota County District Court

File No. C89510031

Stephen M. Meisinger, Meisinger and Meisinger, 60 E. Marie, Suite 109, West St. Paul, MN 55118 (for Appellant)

Harry E. Eliason, Harry E. Eliason Law Office, 2121 Highland Parkway, St. Paul, MN 55116 (for Respondents)

Considered and decided by Short, Presiding Judge, Davies, Judge, and Forsberg, Judge.

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

FORSBERG, Judge

Appellant signed a quitclaim deed to the co-owner of residential property, but later claimed that he did not understand the effect of the deed at the time and thus sought an interest in proceeds from the subsequent sale of the property. The trial court rejected his claims. We affirm.

FACTS

In 1986, appellant James Lorr and respondent Jeffrey Oppegard purchased a house together in Dakota County. They each paid half of the down payment and financed the rest of the purchase with a joint mortgage. Both lived in the house and divided mortgage and other payments equally. In 1987, Lorr's girlfriend and children moved in, and Oppegard then decided to move out. Lorr and Oppegard agreed that Lorr would be responsible for all payments.

Lorr lived in the house until 1991. Twice during Lorr's occupancy, the lender placed the home in foreclosure proceedings. In 1991, the parties agreed that Lorr would move out and Oppegard would move in, taking over responsibility for the payments. Sometime during that year, Oppegard offered Lorr $10,000 to buy out Lorr's interest. Lorr declined, and the offer was not reinstated at any time.

After moving out of the house, Lorr purchased a home in Chisago County and homesteaded it for tax purposes. In the spring of 1993, Dakota County learned of Lorr's improper dual homestead and imposed a penalty against the Dakota County house.

On May 19, 1993, Oppegard and Lorr refinanced the house at a meeting that was also attended by respondent Cheryl Oppegard (Oppegard's wife), a realtor. The parties agree that Oppegard was to be responsible for all payments, including the tax penalty.

The real dispute revolves around the fact that at the meeting where the refinancing documents were executed, Lorr signed a quitclaim deed conveying all of his interest in the property to Oppegard. Oppegard claims that this was contemplated by both parties when they discussed the refinancing. Lorr claims that he thought the deed was necessary for the refinancing, but didn't understand that it relinquished his entire interest. He points to the fact that he also signed a document acknowledging that the deed did not release him from liability on the mortgage (this was apparently required by the lender). He claims that the Oppegards fraudulently failed to disclose to him the effect of the deed.

The Oppegards continued to live in the house after refinancing. The trial court found that during the time he lived there, Oppegard invested approximately $10,000 in materials and $5,000 in labor to make improvements to the house "for the purpose of restoring the property to salable condition."

In 1994, Oppegard sold the property to a third party, retaining salvage rights to the home (the purchaser intended to and eventually did tear down the house). In 1995, Lorr filed this lawsuit, seeking half of the proceeds from the sale of the house and half of the salvage value. The complaint is vague, as noted by the trial court:

[The] Complaint does not clearly assert any cause of action against [the Oppegards], with the possible exception of a claim for fraud referenced in paragraph XVI * * *. [The Oppegards], however, apparently concede that [Lorr], at a minimum, is attempting to claim a lien interest in the premises. At the close of trial, [Lorr's] counsel also claimed to have asserted a cause of action for breach of contract.

The transcript indicates that the "contract" referred to is an alleged oral joint venture or partnership agreement, and that Lorr's attorney also mentioned unjust enrichment as a theory for relief.

The trial court found that the deed transferred Lorr's interest and was supported by sufficient consideration. It noted Lorr's signed acknowledgment of his continuing liability, but found that as a practical matter the property served as the security for the refinancing and the acknowledgment was a mere technicality. The trial court further found that Lorr had failed to establish the existence of fraud, a lien, or a contract, "much less a breach of contract." Judgment was entered in favor of the Oppegards, and Lorr appeals.

D E C I S I O N

This court reviews a trial court's factual findings under the "clearly erroneous" standard, and "due regard" is given to the trial judge's evaluation of the credibility of the witnesses. Minn. R. Civ. P. 52.01.

The trial court here was well within its discretion in finding no fraud by the Oppegards with respect to Lorr's execution of the quitclaim deed. Oppegard testified that when discussing the refinancing plans with Lorr, the idea that Lorr was going to relinquish all interest in the property was "out on the table." Although Lorr disagrees, we must defer to the trial judge's evaluation of credibility. Further, there is no evidence suggesting that the Oppegards affirmatively misled Lorr as to the effect of the document. Rather, Lorr simply suggests--incorrectly--that the Oppegards had some duty to counsel him.

Moreover, Lorr's claim of an interest in the property is barred by the statute of frauds because there is no writing memorializing such an interest.

No estate or interest in lands, other than leases for a term not exceeding one year, nor any trust or power over or concerning lands, or in any manner relating thereto, shall hereafter be created, granted, assigned, surrendered, or declared, unless by act or operation of law, or by deed or conveyance in writing, subscribed by the parties * * * or by their lawful agent * * *.

Minn. Stat. § 513.04 (1994).

The deed here does not contain any reservation of an interest in the property; that is the nature of a quitclaim deed. No other documents establishing an interest in Lorr's favor appear in the record.

Lorr attempts to avoid application of the statute of frauds by arguing that the parties had a legal partnership and that real estate owned by such an entity is personalty not covered by the statute. The trial court did not address the issue, but the record would plainly not support a finding of partnership, and thus we decline to consider the theory further.

Affirmed.

[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, SS10.