This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C5-01-350

 

 

Estate of Hazel Schilb, deceased, by

Thomas R. Louden, special administrator,

Appellant,

 

vs.

 

Ojibwe Foundation of Sandy Lake,

Respondent.

 

 

Filed July 3, 2001

Affirmed

Schumacher, Judge

 

Crow Wing County District Court

File No. C899518

 

 

Michael J. Dougherty, 1047 Avon Street North, St. Paul, MN 55103-1306 (for appellant)

 

John Remington Graham, 180 Haut de la Paroisse, St-Agapit (LOTB), Quebec GOS IZO Canada (for respondent)

 

 

            Considered and decided by Schumacher, Presiding Judge, Anderson, G. Barry, Judge, and Parker, Judge.^*

U N P U B L I S H E D   O P I N I O N

SCHUMACHER, ROBERT H., Judge

Appellant Estate of Hazel Schilb, deceased, by Thomas R. Louden, special administrator, contends the district court erred in granting summary judgment for respondent Ojibwe Foundation of Sandy Lake.  We affirm.

FACTS

Hazel Schilb, now deceased, owned a home in Brainerd, Minnesota, that is the subject of this dispute.  During their marriage, Schilb and her husband became friendly with Thomas Louden, a Brainerd businessman.  Louden helped Schilb with her finances and daily affairs after her husband died in 1973.   Louden eventually became Schilb's custodial trustee and personal representative.

In December 1993, a chimney fire broke out in Schilb's home.  The home was uninhabitable, and she moved temporarily to an apartment on Louden's property.  Schilb wanted to return to her home, but the home was more than 50% damaged and the City of Brainerd moved to condemn it.  On March 31, 1994, Schilb entered into a written agreement with the Sandy Lake Band of Mississippi Chippewa to convey her property to the Foundation in exchange for a life estate and the Foundation's assistance in repairing the home.  The agreement with the Sandy Lake Band provided that after Schilb died, the Foundation would use the property to establish a historical museum, a learning center, and a Korean Memorial. 

In September 1994, at a meeting of the Foundation's trustees, the agreement with the Sandy Lake Band was replaced with an oral agreement between Schilb and the Foundation.  The oral agreement provided that the Foundation would convey a life estate to Schilb and provide labor to repair the home so that Schilb could live in it.  The Foundation and Schilb agreed that the Foundation had no further obligation with regard to the original written agreement and confirmed that it was cancelled.  When Schilb asked at the meeting what would happen to the property after she was gone, a member of the Foundation board replied that the property would be used for Foundation purposes, it would not inure to the benefit of any private individual, and the Foundation would maintain and take care of the property. 

Volunteers organized by the Foundation repaired the fire damage, and Schilb moved back into the home after the city issued a certificate of occupancy.  Schilb later complained that the repairs were not complete but said she was content to be back in her home. 

Schilb and Louden filed suit, alleging the Foundation committed fraud by causing Schilb to convey her property based on the erroneous belief that the Foundation was a sovereign government; failure of contract performance because the Foundation failed to provide the necessary repairs to bring the house up to code; and unjust enrichment because the Foundation received a benefit, the retention of which would be unconscionable.  Louden was later dismissed as an individual plaintiff.  Schilb died in April 2000, during the pendency of the litigation, and Louden was appointed special administrator of Schilb's estate.  The district court granted summary judgment for the Foundation.

D E C I S I O N

            On appeal from summary judgment, this court asks whether there are any genuine issues of material fact and whether the lower court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This court views the evidence in the light most favorable to the party against whom judgment was granted.  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).   No genuine issue of material fact exists "[w]here the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party."  DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997) (alteration in original) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S. Ct. 1348, 1356 (1986)). 

            1.         The Estate contends there are genuine issues of material fact concerning the question of the Foundation's anticipatory breach of the contract. The anticipatory breach claim, while not addressed in the complaint, was raised in Schilb's summary judgment motion after Schilb learned the Foundation had entered into a purchase agreement to sell the remainder interest.  The original agreement with the Sandy Lake Band was that the property would be used to establish a historical museum, a learning center, and a Korean Memorial.  Schilb claimed the Foundation's negotiations to sell the remainder interest and the Foundation's statements at the trustee's meeting that it would not build a museum on the property constituted anticipatory breach.

An anticipatory breach occurs "[w]here a party to an executory contract places itself in a position where it cannot perform the contract, or where the party otherwise prevents performance of the contract."  Space Ctr., Inc. v. 451 Corp., 298 N.W.2d 443, 450 (Minn. 1980) (citations omitted).  At the trustee's meeting, a member of the board stated that "when we have this property we will maintain it, take care of it."  Louden asked if the Foundation would build a Korean Memorial on the property, and the Foundation replied that the property would be used for Foundation purposes.

While the original agreement with the Sandy Lake Band contained a promise that the property would be used to establish a historical museum, a learning center, and a Korean Memorial, the original agreement was replaced with the oral agreement reached at the trustee's meeting.  The oral agreement provided that the Foundation would use the property for Foundation purposes, in its discretion, and made no promises regarding the specific use of the property.

The district court found that selling the property and using the sale proceeds for Foundation purposes conformed to the oral agreement.  The district court properly found that the Foundation's attempt to sell the property did not breach the agreement, and we find no genuine issue of material fact concerning the Foundation's anticipatory breach of the contract.

            2.         The Estate contends the district court erred by stating that rescinding the contract based on the Foundation's plans to sell the property in question would violate public policy as a restraint on alienation.  The court's statement concerning restraint on alienation was only a brief comment at the end of the analysis on the anticipatory breach of contract claim.  The Estate argued that the Foundation's plans to sell the property constituted anticipatory breach, as discussed above, and the court found no genuine issue of material fact.

On appeal the Estate argues that a promise to use the land for specific purposes is not an unenforceable restraint on alienation, and there are no public policy grounds for denying rescission of the contract.  Because the Estate never made this argument in the lower court, it cannot now be raised on appeal.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (reviewing court may only consider issues and theories presented to, and considered by, trial court).  The district court did not misapply the law on restraints on alienation.

3.         The Estate contends the court erred in granting summary judgment because there is a genuine issue of material fact concerning the terms of the contract.  See Donnay v. Boulware, 275 Minn. 37, 45, 144 N.W.2d 711, 716 (1966) (summary judgment not appropriate where contract terms are ambiguous or uncertain).  The Estate claims that the minutes of the Foundation's September meeting contained ambiguous and contradictory language and that the ambiguities must be read in light of extrinsic facts regarding the parties' beliefs and expectations.

The ambiguity of the contract, however, was not addressed in the court below.  The complaint and summary judgment motion raised issues of fraud, failure to perform under the contract, and unjust enrichment.  A reviewing court must generally consider "only those issues that the record shows were presented and considered by the trial court in deciding the matter before it."  Thiele, 425 N.W.2d at 582 (citation omitted).  A party may not obtain review by raising the same general issue litigated below but under a different theory.  Id. The ambiguity of the contract is not properly before this court, and we will not address it.

            Affirmed.