This opinion will be unpublished and

may not be cited except as provided by

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




James R. Bastyr,



Marke A. Zipse, et al.,



Marilyn M. Anderson,



Mark A. Zipse, et al.,


Filed June 2, 1998


Harten, Judge

Mower County District Court

File No. C7-96-182

Donaldson V. Lawhead, Lawhead Law Offices, 301 South Main Street, Austin, MN 55912 (for appellants)

Lee A. Bjorndal, Bryan J. Baudler, Baudler, Baudler, Maus & Blahnik, 108 North Main Street, Austin, MN 55912 (for respondents)

Considered and decided by Davies, Presiding Judge, Harten, Judge, and Schultz, Judge.**

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



Real estate seller challenges a judgment for purchaser in purchaser's action for specific performance of a purchase agreement. Seller also challenges a judgment for a real estate broker in the broker's action to recover a commission, which was consolidated for trial with purchaser's action. We affirm.


On or about October 1, 1995, real estate broker Marilyn Anderson showed a home owned by appellants Mark and Carolyn Zipse to respondent James Bastyr. On October 6, the Zipses and Bastyr signed a purchase agreement. The agreement specified that the sale was contingent on Bastyr obtaining mortgage financing and provided that closing would occur on November 10. The financing addendum allowed the Zipses to cancel the agreement if the lender required them to fulfill a work order that would cost them more than $0 to satisfy.

The mortgage lender hired the Hoversten Law Firm to conduct the closing. The lender discovered that the Zipses shared a driveway with their neighboring property owners, the Romeos, and that the driveway was entirely on the Romeos' property. The lender issued a conditional financing commitment requesting a recorded shared driveway agreement as a condition of insuring the mortgage. An employee of Hoversten contacted the Zipses and requested the driveway agreement. The parties rescheduled closing for November 20 to afford the Zipses time to obtain the agreement. The Zipses contacted the Romeos and asked for an easement, but the Romeos refused.

On November 20, prior to the scheduled time of closing, Anderson told Hoversten that closing was cancelled because the Zipses could not obtain the agreement. Consequently, neither party arrived at the Hoversten office for closing. At 5:04 p.m. that day, the Zipses faxed a letter to Hoversten indicating that they were canceling the purchase agreement.

On November 30, 1995, Anderson filed a complaint in conciliation court against the Zipses to recover a broker's commission of $3,672.50 in accordance with the agreement that she and the Zipses had entered. Anderson alleged that she had found a buyer willing and able to purchase the property on the Zipses' terms and therefore she had earned the commission. Following an adverse judgment, the Zipses removed the case to district court.

On February 8, 1996, Bastyr filed a complaint against the Zipses seeking specific performance of the purchase agreement. The two cases were consolidated for trial.

On April 23, 1997, a bench trial began. The Zipses contended that when the Romeos refused to sign a shared driveway agreement, the request for a recorded shared driveway agreement became a request for a work order to install a new driveway. Because the cost of installing a new driveway would be in excess of $0, the Zipses claimed that they were entitled to cancel the purchase agreement according to its terms. Bastyr contended that the request for a driveway agreement addressed a title issue, not a work order.

The district court heard conflicting expert testimony. A real estate appraiser testified for the Zipses that the driveway agreement request was a work order under industry standards. But he admitted on cross-examination that he had no legal training, had not been involved in the development or interpretation of legal documents, and had only closed loan transactions from 1972 to 1976. David Hoversten, an attorney from the Hoversten firm, testified that he had been an examiner of titles since the mid-1980s, that about 50% of his practice involved real estate, and that he considered the issue one of marketable title. He stated that the space on the conditional commitment form where the shared driveway request was placed was not reserved for work orders. He believed that work orders only related to physical repairs, such as a request to fix a roof.

The district court held that the driveway issue was a matter of marketable title, not a request for a work order, and thus the Zipses' purported cancellation of the purchase agreement was a breach of the agreement. The district court awarded Anderson and Bastyr their requested relief. This appeal followed.


This court reviews de novo a district court's interpretation of a purchase agreement. Hanson v. Moeller, 376 N.W.2d 220, 225 (Minn. App. 1985).

The Zipses contend that they were not conveying the driveway, and therefore they could not have been required to provide title to the driveway. They rely on the fact that the purchase agreement's legal description of their property did not include a description of the driveway on the Romeo's property. A right-of-way affording egress and ingress to a dominant estate, however, passes by deed without express reference. Stapf v. Wobbrock, 171 Minn. 358, 362, 214 N.W. 49, 50 (1927). Thus, if the Zipses had any right-of-way over the Romeos' driveway, it would not have to be mentioned in the legal description of the Zipses' property to pass to a buyer.

Generally, the existence of an ambiguity in a contract is a legal question. Empire State Bank v. Devereaux, 402 N.W.2d 584, 587 (Minn. App. 1987). If an ambiguity exists, however, the meaning of the ambiguous provision is a factual question. Id. Findings of fact will not be reversed unless clearly erroneous. Minn. R. Civ. P. 52.01. Here, the district court defined "work order," within the meaning of the purchase agreement, to mean a request for physical improvement to the property. In light of the record, this definition was not clearly erroneous.

The district court held that the lender's request for a shared driveway agreement was not a request for a physical improvement to property, and thus did not fall within the definition of "work order." Here, the lender merely requested a document for recording purposes, not the installation of a new driveway on the property. Perhaps the lender's concern could have been satisfied if the Zipses installed a new driveway, but the lender did not expressly require any specific solution if a driveway agreement document could not be produced.

We agree with the district court that the request for an agreement for recording purposes was not a "work order" within the meaning of the purchase agreement. The Zipses were mistaken in reading into the agreement a requirement that they install a new driveway. Accordingly, the Zipses were not entitled to cancel the purchase agreement and Anderson was entitled to her commission.