This opinion will be unpublished and

may not be cited except as provided by

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




Robert T. Griffith, D.D.S.,



Al Paulson,


Alfred M. Teien,


Filed August 5, 1997


Harten, Judge

Carver County District Court

File No. C9-95-1839

Robert A. Nicklaus, Nicklaus Law Firm, P.O. Box 116, 103 West Second Street, Chaska, MN 55318 (for appellant)

Edward M. Christian, Attorney at Law, 8609 Lyndale Avenue South, Bloomington, MN 55420 (for respondent)

Considered and decided by Harten, Presiding Judge, Toussaint, Chief Judge, and Parker, Judge.



Appellant Robert T. Griffith brought this action against respondent Al Paulson and Alfred Teien seeking specific performance of a purported contract for the sale of a home located in Minnetonka. The district court issued findings of fact and conclusions of law, concluding that Griffith was entitled to specific performance only against Teien because an enforceable contract was never formed between Griffith and Paulson--Griffith had modified terms of the purchase agreement before signing it.[1] The district court denied Griffith's motion for a new trial or amended findings. Griffith appeals that denial and the judgment denying specific performance. He argues that the findings of fact are not supported by the evidence. We affirm.


Griffith claims that the district court's findings of fact are clearly erroneous and that we should remand to the district court with directions to make findings consistent with the evidence and order specific performance. The district court findings of fact will not be set aside unless they are clearly erroneous; also, we must give due regard to the district court's opportunity to judge the credibility of the witnesses. Minn. R. Civ. P. 52.01. We review the record in the light most favorable to the district court's findings. Red River Spray Serv., Inc. v. Nelson, 404 N.W.2d 332, 334 (Minn. App. 1987).

[T]his court will only reverse a [district] court's findings of fact if, upon review of the entire evidence, we are "left with the definite and firm conviction that a mistake has been made."

In re Guardianship of Dawson, 502 N.W.2d 65, 68 (Minn. App. 1993) (quoting Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987)), review denied (Minn. Aug. 16, 1993).

Griffith challenges the district court finding that his testimony was not credible and that he modified the terms of the purchase agreement before he signed it. Griffith argues that there is no evidence supporting the district court finding that he was not a credible witness because his testimony was consistent with Teien's testimony and the district court made no finding that Teien's testimony was not credible. Griffith also asserts that his testimony and that of Teien indicates that he signed the purchase agreement before modifying its terms and there is no evidence to support the district court finding that he modified the terms of the agreement before signing it.

As to the district court finding that Griffith was not a credible witness, the district court noted that Griffith and Teien are "lifelong friends." The district court's specific mention of their relationship in the memorandum implies that this relationship raised a question regarding the joint credibility of both Griffith and Teien. Furthermore, the district court findings and accompanying memorandum indicate that it rejected both Griffith's and Teien's testimony. The district court's memorandum stated that, although Griffith and Teien "insist they had signed the original purchase agreement before altering and modifying the purchase agreement," the fact that Griffith "originally sued on the altered document * * * indicates * * * that [Griffith] believed the agreement signed by Defendant Paulson was no longer in existence." In denying Griffith's motion for a new trial, the district court also noted that

[t]his court found it more plausible to believe that [Griffith] altered the terms of Defendant[ ] Paulson's offer before acceptance of any offer. His conduct afterwards certainly [implies] that he believed that the contract had been altered as he originally sought to sue on the contract as he had altered it.

We agree with the district court that Griffith's initial action on the modified terms of the agreement implies that Griffith believed that the original terms of the purchase agreement were no longer in existence. The evidence supports the district court's findings, and we decline to disturb the credibility determination of the district court. See State v. Daniels, 361 N.W.2d 819, 826 (Minn. 1985) (role of factfinder to determine witness' credibility); Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (appellate court affords deference to the opportunity of the district court to "assess the credibility of the witnesses"). We conclude that the district court findings, although not as extensive as might be preferred, are not clearly erroneous; that a contract was never formed between Paulson and Griffith; and that the district court did not err by denying specific performance. See Haugland v. Canton, 250 Minn. 245, 248, 84 N.W.2d 274, 277 (1957) (acceptance must comply in all respects with the requirements of the offer); Hough v. Harvey, 410 N.W.2d 53, 55 (Minn. App. 1987) (acceptance that seeks to vary, add to, or qualify terms of the offer, is not positive and unequivocal and constitutes a counteroffer and a rejection of the original offer); see also Twin City Bldg. & Loan Ass'n v. Johnson, 194 Minn. 1, 7, 259 N.W. 551, 553 (1935) ("the granting or denying of specific enforcement of a contract rests in the sound discretion of the [district] court.") Moreover, we note that even had the credibility findings been otherwise, no enforceable contract existed between Griffith and Paulson because Griffith's purported acceptance of the terms of the original offer was not communicated to Paulson. See Nodland v. Chirpich, 307 Minn. 360, 367, 240 N.W.2d 513, 517 (1976) (delivery is an essential element of contract formation); Pogreba v. O'Brien, 223 Minn. 430, 434, 27 N.W.2d 145, 146 (1947) (same).


[ ]1 Teien failed to answer Griffith's complaint and the district court entered default judgment in favor of Griffith.