may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Rory J. Pietsch,
Michael J. Darling,
Estate of Clinton N. Darling, et al.,
Filed December 22, 1998
Judgment vacated and remanded;
motion to strike denied
Chisago County District Court
File No. CX-97-1458
William F. Mohrman, Mohrman & Co., P.A., 4100 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for appellant)
Mark E. Fuller, Fuller & Finney, 7301 Ohms Lane, Suite 325, Edina, MN 55439 (for respondent)
Considered and decided by Randall, Presiding Judge, Foley, Judge, and Holtan, Judge.[**]
On appeal from a summary judgment, appellant Rory Pietsch challenges the district court's order dismissing this action to have himself declared the fee owner of property. The district court concluded that, pursuant to Minn. Stat. § 559.21, subds. 2a, 3 (1996), Pietsch had no legal interest in the property because he failed to either cure the default alleged in the notice of cancellation of contract for deed or obtain a court order suspending the cancellation within the 60-day statutory period. Pietsch does not dispute that he failed to act within the statutory period but argues that the district court should have invoked its equitable jurisdiction to rescind the termination of the contract for deed. We vacate the judgment and remand.
In April 1993, Clinton Darling conveyed by contract for deed a 40-acre parcel of agricultural property located in Chisago County to appellant Rory Pietsch. The purchase price was $24,000. The contract for deed provided for a $10,000 downpayment and semi-annual payments of $2,000 each, beginning in October 1993 and continuing through October 1997, at which time any unpaid principal and interest would be due and payable in full.
Pietsch did not make the semi-annual $2,000 payments provided for in the contract for deed. Instead, he made smaller, partial payments throughout the year. After Clinton Darling died on June 6, 1996, a dispute arose between Pietsch and Clinton Darling's estate regarding the balance owed under the contract for deed.
On August 19, 1997, Pietsch's attorney sent a letter to the attorney for the estate of Clinton Darling stating that he had a $600 money order. On August 29, the estate's attorney set a letter to Pietsch stating that the estate had assigned the vendor's interest in the contract for deed to respondent Michael Darling. On October 6, Michael Darling served Pietsch with a notice of cancellation of contract for deed, alleging that Pietsch was in default for failing to make any of the $2,000 payments due under the contract for deed from October 9, 1993 through April 9, 1997. The notice stated that Pietsch owed $12,000 plus specified costs.
On November 20, 1997, Pietsch's attorney filed in district court the summons and complaint for this action, a notice of motion and motion for an ex parte order suspending cancellation of the contract for deed, and Pietsch's affidavit in support of the motion. The same day, Pietsch caused a notice of lis pendens to be recorded in Chisago County. On December 1, 1997, Pietsch's attorney mailed the summons and complaint and an acknowledgment of service to Michael Darling at his home address. On December 5, the day the 60-day redemption period expired under the contract for deed, Pietsch's attorney mailed the summons and complaint to the Hennepin County sheriff's office for service on Michael Darling. The sheriff's office received the summons and complaint by mail on December 8, 1997.
Michael Darling filed a motion for summary judgment seeking dismissal of this action. The district court granted the motion based on Pietsch's failure to obtain a court order or commence this action within the 60-day statutory redemption period. This appeal is from summary judgment entered in favor of Michael Darling.
Pietsch sought to file in this court a supplemental record containing copies of money orders and cancelled checks payable to Clinton Darling. The money orders and cancelled checks confirm payments listed in a register apparently prepared by Pietsch, which was included in the district court record. The supplemental record also contains letters documenting Pietsch's efforts to pay off the contract for deed in 1996 and 1997.
Michael Darling filed a motion in this court to strike the supplemental record and all references to documents therein because the documents in the supplemental record were not part of the record before the district court. The papers filed in the district court, the exhibits and transcript of the proceeding, if any, shall constitute the record on appeal in all cases. Minn. R. Civ. App. P. 110.01. However, this court may take any "action as the interest of justice may require." Minn. R. Civ. App. P. 103.04. For the reasons stated hereinafter, we deny the motion to strike.
On appeal from a summary judgment, this court must review the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). We must view the evidence in the light most favorable to the nonmoving party. Id. "Summary judgment is an extraordinary remedy - a 'blunt instrument' to be used only where it is clearly applicable." Katzner v. Kelleher Constr., 535 N.W.2d 825, 828 (Minn. App. 1995), aff'd 545 N.W.2d 378 (Minn. 1996).
Unless the buyer either complies with the default conditions and pays the other costs listed in the cancellation notice or obtains a court order suspending the cancellation proceedings until claims or defenses are resolved, a contract for deed is terminated 60 days after the buyer is served with notice of cancellation. Minn. Stat. § 559.21, subds. 3(b), 4(d) (1996); see also Minn. Stat. § 559.211, subd. 1 (1996) (authorizing district court to enter order temporarily restraining or enjoining cancellation proceedings).
Pietsch concedes that he failed to comply with the default conditions or obtain a court order suspending the cancellation proceedings within 60 days after he was served with the notice of cancellation. Pietsch argues that he is entitled to equitable relief. In construing an earlier version of Minn. Stat. § 559.21, the supreme court stated:
We are dealing with an all too inelastic statute. It does not discriminate, as law ought to discriminate, between those who deserve its indulgence and those who have forfeited all right to it. The vendee who in good faith has made substantial payments, amounting possibly to a large portion of the purchase price, has added substantial value to the property by improvements and is in possession, may be cancelled out, and possibly his entire estate forfeited, just as summarily as the speculator who has made an insignificant down payment, is not in possession and does not intend further performance, unless he can make a profitable deal.
Follingstad v. Syverson, 160 Minn. 307, 311-12, 200 N.W. 90, 92 (1924), quoted in D.J. Enters. of Garrison, Inc. v. Blue Viking, Inc., 352 N.W.2d 120, 121-22 (Minn. App. 1984), review denied (Minn. Oct. 11, 1984). After cautioning that statutory obligations must be enforced, the Follingstad court rejected the argument that the statute deprived courts of equitable jurisdiction over the vested cancellation rights of a contract vendor. Id.; see also D.J. Enters., 352 N.W.2d at 121 (explaining Follingstad).
Here, the district court dismissed this action because Pietsch failed to obtain a court order or commence this action within the 60-day statutory redemption period. This court has permitted equitable relief for vendees that failed to comply with the requirements of Minn. Stat. § 559.21, subds. 3(b), 4(d), within the statutory redemption period. See Coddon v. Youngkrantz, 562 N.W.2d 39 (Minn. App. 1997) (reversing denial of equitable relief when vendee stood to lose $100,000 invested in equity and capital improvements, vendee attempted to cure alleged default, and vendor's acts suggested bad-faith effort to force cancellation), review denied (Minn. July 10, 1997); D.J. Enters., 352 N.W.2d at 120 (affirming grant of equitable relief when vendee had assumed debts of 75% of purchase price and was ready to complete performance).
It appears from the record that from the time Pietsch was served with the notice of cancellation on October 6, 1997, counsel thereafter represented him. Before the statutory redemption period expired, Pietsch's attorney filed in the district court a copy of the summons and complaint and a notice of motion and motion for an ex parte order suspending the cancellation proceedings. The motion papers, however, did not comply with the requirements of Minn. R. Civ. P. 65 as required under Minn. Stat. § 559.211, and a hearing date was not obtained within the statutory period. Also before the statutory redemption period expired, Pietsch's attorney mailed a copy of the summons and complaint and acknowledgment of service to Michael Darling, but service was ineffective because Michael Darling did not return the acknowledgment of service. Thus, it appears from the record that Pietsch's failure to begin this action or obtain a court order suspending the cancellation proceeding within the statutory redemption period was due to counsel's oversight. Nothing in the record indicates that the failure resulted from any personal fault or neglect on the part of Pietsch.
In deciding whether a party is entitled to relief from a judgment, Minnesota's appellate courts have expressed a strong policy in favor of protecting innocent clients from attorney neglect. See, e.g., Nguyen v. State Farm Mut. Auto. Ins. Co., 558 N.W.2d 487, 491 (Minn. 1997) ("Our case law reflects a strong policy favoring the granting of relief when judgment is entered through no fault of the client"); Charson v. Temple Israel, 419 N.W.2d 488, 491 (Minn. 1988) ("ordinarily courts are loath to 'punish' the innocent client for the counsel's neglect"); Duenow v. Lindeman, 223 Minn. 505, 518, 27 N.W.2d 421, 429 (1947) ("Courts will relieve parties from the consequences of the neglect or mistake of their attorney, when it can be done without substantial prejudice to their adversaries."); Lund v. Pan American Mach. Sales, 405 N.W.2d 550, 554 (Minn. App. 1987) ("[the client] should not be the victim of his attorney's carelessness").
Pietsch presented substantial evidence by way of the supplemental record showing that he paid more than the purchase price on the contract for deed. He could be in danger of losing valuable property rights due to counsel's oversight, through no personal fault of his own. Minnesota courts recognize that real property is unique and that damages are generally inadequate to compensate a party who is wrongfully deprived of real property. See Gethesemane Lutheran Church v. Zacho, 258 Minn. 438, 443, 104 N.W.2d 645, 648 (1960) (damages inadequate to compensate vendee for breach of contract for sale of real property); Schumacher v. Ihrke, 469 N.W.2d 329, 335 (Minn. App. 1991) (real property unique). Under the circumstances of this case, the interests of justice require that Pietsch be granted a hearing to determine whether he substantially paid the contract for deed and should be allowed to complete performance. We vacate the judgment and order directing Pietsch to discharge the notice of lis pendens and remand this case for further proceedings consistent with this opinion.
Judgment vacated and remanded; motion to strike denied.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
[**] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.
 Pietsch alleges that the August 29 letter did not comply with the notice requirement in the contract for deed. Although the August 29 letter may not have been in technical compliance with the requirement that a copy of the assignment be provided to Pietsch, the letter provided Pietsch with adequate and timely notice of the assignment.