This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Robert W. Fierek,



Thomas A. Stolee, et al.,


Filed August 17, 1999


Klaphake, Judge

St. Louis County District Court

File No. C5-98-602159

Paul B. Kilgore, Fryberger, Buchanan, Smith & Frederick, P.A., 700 Lonsdale Bldg., 302 W. Superior St., Duluth, MN 55802 (for appellant)

John D. Kelly, Jennifer L. Carey, Hanft, Fride, O'Brien, Harries, Swelbar & Burns, P.A., 1000 U.S. Bank Place, 130 W. Superior St., Duluth, MN 55802-2094 (for respondents)

Considered and decided by Klaphake, Presiding Judge, Anderson, Judge, and Foley, Judge.[*]



Robert W. Fierek brought this conversion action, seeking return of $20,000 in earnest money he paid to respondents Thomas A. and Lorraine F. Stolee. Following a bench trial, the court found that (1) a written agreement existed between the parties under which Fierek agreed to purchase the Stolees' home; (2) Fierek defaulted by refusing to purchase the home; and (3) the Stolees were entitled to retain the $20,000 that Fierek paid them as earnest money. Fierek appeals, arguing that any agreement reached by the parties was void under the statute of frauds. Because the initial handwritten memorandum signed by the parties satisfied the requirements of the statute of frauds, we affirm.


On April 11, 1998, the parties executed a handwritten memorandum that stated:

Lorraine F. Stolee[1] agrees to sell the property at 2626 East Second St. to Bob and Maria Fierek at a time to be negotiated for $435,000 with $20,000 earnest money paid on 4/11/98 and $415,000 paid at time of closing.

The agreement was signed by the Stolees and by Fierek. Fierek tendered a $20,000 check to the Stolees drawn on his personal account; two days later, he substituted a $20,000 check drawn on his business account. It is undisputed that the parties thereafter agreed to close on September 1, 1998.

In connection with the sale of land, the statute of frauds provides:

Every contract * * * for the sale of any lands, or any interest in lands, shall be void unless the contract, or some note or memorandum thereof, expressing the consideration, is in writing and subscribed by the party by whom the * * * sale is to be made, or by the party's lawful agent thereunto authorized in writing * * *.

Minn. Stat. § 513.05 (1998). The basic purpose of the statute is to "provide reasonable safeguards to insure honest dealing"; the statute "was not enacted to make a fetish of literal statutory compliance or a fetish of requiring a perfect written contract." Doyle v. Wohlrabe, 243 Minn. 107, 110, 66 N.W.2d 757, 761 (1954). Thus, to satisfy the statute of frauds, there need only be a writing containing a statement of the consideration, an adequate description of the parties, an adequate description of the land, the general terms and conditions of the transaction, and subscription by the vendor. Greer v. Kooiker, 312 Minn. 499, 504-05, 253 N.W.2d 133, 138 (1977).

The parties' April 11 handwritten memorandum easily satisfied these requirements. The only issue left undecided by the memorandum was the closing date, but it is undisputed that the parties agreed to close on September 1. Although the parties negotiated other terms of the transaction over the next few months, the general terms and conditions were set out in that initial handwritten memorandum. The trial court therefore did not err in rejecting Fierek's argument that the parties' agreement was void because it failed to satisfy the statute of frauds.

Even if the parties' agreement were void under the statute of frauds, the Stolees still would be entitled to retain Fierek's earnest money. Fierek acknowledged that he intended to purchase the Stolees' property for $435,000; as consideration for the Stolees' promise to sell the property to him, he gave them $20,000 in earnest money. Because the trial court did not clearly err in finding that Fierek breached the agreement by refusing to close on September 1 and because the evidence reasonably shows that the Stolees were not in default and remained ready to sell the property to Fierek, he cannot recover that money on the ground that the agreement is void under the statute of frauds. See Phelan v. Carey, 222 Minn. 1, 5, 23 N.W.2d 10, 13 (1946) (if purchaser of land under oral agreement, void under the statute of frauds, has paid money in performance thereof, such money cannot be recovered when the vendor has not defaulted but stands ready, willing, and able to perform the contract according to its terms).

Fierek also challenges the trial court's rejection of his request for attorney fees, which he claimed he was entitled to as compensatory damages for the Stolees' conversion of his $20,000. Because Fierek has failed to prove conversion, his request for attorney fees also fails.

The trial court's judgment is affirmed.


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

[1] The fee title to the property is in Lorraine Stolee's name only.