This opinion will be unpublished and

may not be cited except as provided by

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




Elden LeBlanc,



Richard C. LeMieur, et al.,


Filed November 24, 1998


Peterson, Judge

Morrison County District Court

File No. C497309

Robert V. Dalager, Fluegel, Helseth, McLaughlin, Anderson, & Brutlag, Chartered, 215 Atlantic Avenue, P.O. Box 527, Morris, MN 56267 (for respondent)

David. T. Shay, Shay Law Office, Ltd., 28 Ninth Avenue North, St. Cloud, MN 56303 (for appellants)

Considered and decided by Schumacher, Presiding Judge, Peterson, Judge, and Harten, Judge.



In this appeal from a judgment following a trial to the court, appellant-vendors Richard C. LeMieur, et al., allege the district court erred in (a) finding a purchase agreement enforceable; (b) ruling their attorney-in-fact had authority to enter a purchase agreement on their behalf; and (c) granting respondent-vendee Elden LeBlanc specific performance of the purchase agreement. Because the record supports the challenged rulings that are properly before this court, we affirm.


Richard and Mary Ann LeMieur gave Barry Opatz power of attorney regarding certain land. Opatz negotiated a sale of the land with Elden LeBlanc. LeBlanc delivered a final, unsigned draft of a purchase agreement to LeMieurs. It was disputed at trial whether LeBlanc also delivered an earnest money check. Opatz called LeBlanc because certain attachments had not been delivered with the purchase agreement but did not mention the earnest money. LeBlanc brought copies of the missing attachments to a meeting with Opatz, and they both signed the purchase agreement. After several postponements of the closing, LeBlanc sued LeMieurs and Opatz. The district court ruled (a) Opatz had authority to enter the purchase agreement on LeMieurs' behalf; (b) the purchase agreement was enforceable; and (c) LeBlanc was entitled to specific performance.


Absent a motion for a new trial, review is limited to whether the evidence supports the findings of fact and whether the findings of fact support the conclusions of law and the judgment. Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569 (1976). On appeal, findings of fact are not set aside unless clearly erroneous and appellate courts defer to district court credibility determinations. Minn. R. Civ. P. 52.01; Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).[1]

1. LeMieurs argue that the purchase agreement was unenforceable for lack of consideration because the earnest money was not paid. The district court found LeBlanc delivered a check for the earnest money to Mary Ann LeMieur before the purchase agreement was signed. Viewed in the light most favorable to the prevailing party, and because we defer to what is essentially the district court's determination that Richard LeMieur's testimony that the earnest money was not delivered was not credible, we cannot say the district court's finding is clearly erroneous.

2. Exhibit B to the purchase agreement states that LeMieurs have the right to remove gravel from the land "at a price to be negotiated with [LeBlanc]" and that LeMieurs will restore the land after removing the gravel. LeMieurs allege the purchase agreement is unenforceable because it did not address the price LeMieurs would pay for the gravel or the extent of the restoration. The district court did not address this issue. Therefore, either it was not raised to the district court or it was raised but not addressed by the district court. In either case, the issue is not properly before us and we do not address it. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (generally, appellate courts address only issues presented to and considered by district court); Frank v. Illinois Farmers Ins. Co., 336 N.W.2d 307, 311 (Minn. 1983) (where district court fails to address issue and party who raised issue did not seek amended findings, there was nothing for supreme court to review). Nor will we address the question pursuant to our discretionary authority under Minn. R. Civ. App. P. 103.04.

For the same reasons, we will not address appellants' assertions that (a) the district court erred in not ruling that Richard LeMieur was incompetent when he signed the power of attorney and (b) LeBlanc's request for specific performance was not timely. Neither issue was addressed by the district court.

3. LeMieurs allege specific performance was not available here because (a) Richard LeMieur was not competent when he signed the power of attorney; (b) the earnest money was never received; and (c) LeBlanc dealt with both Opatz and Richard LeMieur in an effort to confuse the transaction. See Saliterman v. Bigos, 352 N.W.2d 494, 496 (Minn. App. 1984) (ruling specific performance requires a contract, adequate consideration, and no sharp practices by party seeking specific performance). As noted, the question of Richard LeMieur's competence is not properly before us. Also, because, on this record, the district court's finding that the earnest money was delivered is not clearly erroneous, we will not reverse the award of specific performance on that basis. Finally, whether LeBlanc attempted to confuse the transaction by dealing with both Opatz and Richard LeMieur is essentially a question of whether LeBlanc acted in bad faith. Whether one acts in bad faith is a fact question that was not addressed by the district court and cannot be addressed by this court. See Uselman v. Uselman, 464 N.W.2d 130, 140 (Minn. 1990) (stating bad faith is fact question for district court); Kucera v. Kucera, 275 Minn. 252, 254, 146 N.W.2d 181, 183 (1966) ("[i]t is not within the province of [appellate courts] to determine issues of fact on appeal"). Therefore, we reject the argument that specific performance was not available.


[1] We reject any argument that we can review documentary evidence de novo. A 1985 amendment to Minn. R. Civ. P. 52.01, overruled prior cases allowing de novo review of documentary evidence. First Trust Co. v. Union Depot Place, Ltd. Partnership, 476 N.W.2d 178, 181-82 (Minn. App. 1991), review denied (Minn. Dec. 13, 1991).