This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1845

 

Robert L. Perry,

Appellant,

 

vs.

 

Ned Butterfield,

Respondent,

 

Lorna Butterfield,

Respondent.

 

Filed July 12, 2005

Affirmed

Poritsky, Judge*

 

Wright County District Court

File No. C7-03-2636

 

Eric J. Magnuson, Peter Gray, Rider Bennett, LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN  55402 (for appellant)

 

John G. Patterson, Martin D. Kappenman, Moore, Costello & Hart, PLLP, 55 East Fifth Street, Suite 1400, St. Paul, MN  55101-1792 (for respondent Ned Butterfield)

 

James L. Berg, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN  55318 (for respondent Lorna Butterfield)

 

            Considered and decided by Klaphake, Presiding Judge; Shumaker, Judge; and Poritsky, Judge.

U N P U B L I S H E D   O P I N I O N

PORITSKY, Judge

Appellant and one of the respondents signed a purchase agreement to sell real property to appellant.  The sale was never completed.   Appellant challenges the district court’s order dismissing appellant’s complaint for breach of contract.  Because the district court did not err by determining that there was not a valid contract to sell the property, we affirm.

FACTS

Respondents Lorna and Ned Butterfield each, as joint tenants, own an undivided one-half interest in certain real property in Wright County.  The Butterfields were married during the events relevant to this matter, but several months before the trial, Lorna commenced divorce proceedings against Ned.  Appellant Robert Perry desired to purchase this property.  He testified that in or around March 2002, he spoke to Ned about purchasing it, and, according to Perry, Ned offered to sell the property for $10,000 per acre, for a total price of $710,000.

Previously, under date of August 28, 2001, Ned had signed a statutory short form power of attorney, designating Lorna as his attorney in fact and designating his and Lorna’s daughter Terry Clark as his successor attorney in fact.  But in 1995, the legislature had amended the statutory short form power of attorney, effective January 1, 1996.  1995 Minn. Laws ch. 130, §§ 9, 22.  The form that Ned used did not reflect the amendment.  As a result, when Ned executed the power of attorney, he used a form that contained language that differed from the language required by the statute then in effect.  Specifically, the form he used included the following sentence, which had been previously required in the statutory short form power of attorney, but was deleted by the 1995 amendment: “(Note: A person may not grant powers relating to real property transactions in Minnesota to his or her spouse.).” 

The power of attorney signed by Ned did contain various provisions that were consistent with the then-current statutory language, specifically a grant of all of the powers listed on the form, which included the power necessary for real-property transactions.  The form also contained a provision that limited the powers concerning real property to two tracts, one in Hennepin County and one in Wright County. 

In April 2002, Perry; Lorna; and Clark, as attorney in fact for Ned; signed a purchase agreement for the sale of the property in Wright County to Perry.  Perry wrote a check for $100,000 payable to Clark as a down payment for the property.[1]  Clark had Perry write the check to her rather than to her parents because the Butterfields were experiencing marital difficulties.  This purchase agreement was cancelled because Clark was later told that as successor attorney in fact she lacked the authority to sign for her father.

A second purchase agreement was signed by Lorna and Perry on May 13, 2002.  The purchase agreement mentioned the property in Wright County, the $710,000 purchase price, and the June 1, 2002 closing date.  Ned did not sign the agreement, nor is his name anywhere on the agreement.  Lorna did not indicate in writing that she was signing also as attorney in fact for Ned. 

Lorna testified that she believed Ned would sign the purchase agreement later.  When asked if her signature was “representative of [Ned] on that second purchase agreement” she replied, “I had no idea.  I have no idea.  I just knew I wanted to sell it, and I signed the document.”  Perry testified that he was told that Clark’s attorney had given advice “that only Lorna need sign the purchase agreement with this power of attorney in hand for herself and for Ned.”  Perry further testified that he was told that Lorna “was signing for herself and for Ned on advice of an attorney . . . that only one signature was needed.” 

The closing in June was delayed because of title problems, and it was rescheduled for September 16, 2002.  In June 2002, Ned revoked the power of attorney.  At the scheduled September closing, both Lorna and Perry were prepared to move forward.  But Ned did not appear, and the closing did not occur.  Ned did not want to sell, and the closing was not rescheduled.

Perry asserts that he had begun acting as the owner of the property.  For example, in June 2002, he applied for rezoning of the property, and he claims that Lorna signed the application for him.  Lorna also forwarded to Perry a notice from the Department of Agriculture, dated July 2002, “for future reference.”  And in September 2002, Perry received money from two people for permitting them to use the property for hunting.  Ned, however, did nothing affirmative to support Perry’s ownership of the property. 

Perry filed a complaint against the Butterfields, alleging breach of contract and seeking specific performance or damages.  The district court determined (1) that the power of attorney was invalid as a statutory short form power of attorney; (2) that it was also not a common-law power of attorney, and that it failed to authorize Lorna to represent Ned in real-property transactions; (3) that Lorna did not sign the purchase agreement on behalf of Ned and did not intend to do so; (4) that the Butterfields’ actions did not ratify the purchase agreement; and (5) that Lorna did not contract with Perry to sell him her one-half undivided interest in the property.  It dismissed Perry’s complaint with prejudice.  This appeal follows.

D E C I S I O N

We review questions of law de novo.  Alpha Real Estate Co. v. Delta Dental Plan,664 N.W.2d 303, 311 (Minn. 2003).  But we will not set aside the district court’s findings of fact unless they are clearly erroneous, and we give due regard to the district court’s opportunity to judge the credibility of the witnesses.  Minn. R. Civ. P. 52.01.  If there is reasonable evidence to support the district court’s findings of fact, this court will not disturb those findings.  Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999).

I.

Perry argues that the district court erred when it concluded that the power of attorney signed by Ned was not a valid statutory short form power of attorney.  “To constitute a ‘statutory short form power of attorney,’ as this phrase is used in this chapter the wording and content of the form in subdivision 1 must be duplicated exactly and with no modifications . . . .”  Minn. Stat. § 523.23, subd. 3 (2004).[2] 

               Statutory construction is a question of law, which this court reviews de novo.  Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998).  Absent ambiguity, a court “must look only to the plain meaning of the statutory language.”  Wood v. Diamonds Sports Bar & Grill, Inc., 654 N.W.2d 704, 708 (Minn. App. 2002) (quotation omitted).

               The language of section 523.23, subd. 3 unambiguously requires the words and contents of the form in subdivision 1 to be duplicated exactly with no modifications.  Ned’s statutory short form power of attorney contains the language, “Note:  A person may not grant powers relating to real property transactions in Minnesota to his or her spouse.”  This language is not found in the statute that was in effect at the time he executed the document.  See Minn. Stat. § 523.23, subd. 1 (2000).  Because the language and content of Ned’s power of attorney differs from the language in the form found in subdivision 1, we conclude that the document was invalid as a statutory short form power of attorney.

II.

               The district court also concluded that the August 28, 2001 document was not a common-law power of attorney and that Perry failed to sustain his burden to prove that Ned intended to authorize Lorna to act as his attorney in fact in real estate transactions.  We disagree.  A power of attorney that does not satisfy the requirements of subdivision 3, and thus does not qualify as a statutory short form power of attorney, may nonetheless qualify as a common-law power of attorney.  Minn. Stat. § 523.23, subd. 3.  A power of attorney that “purports to be a statutory short form power of attorney, may constitute a common law power of attorney [if it] incorporates by reference the definitions of powers contained in section 523.24.”  Id.  A power of attorney is validly executed when it is dated and signed by the principal.  Minn. Stat. § 523.01 (2004).  While a power of attorney must be strictly construed, if the parties’ intention is apparent from the language in the power of attorney that intention should prevail.  Duluth News Tribune v. Smith, 169 Minn. 356, 357-58, 211 N.W. 322, 322-23 (1926).

            Here, with respect to this issue, there is a conflict between various terms within the power of attorney itself.  Printed on the statutory short form is the note referred to above, which purports to bar a person from granting his or her spouse the power to sell the principal’s interest in real estate.  But also in the statutory short form is a provision, checked by Ned, which purported to grant Lorna the power to sell the real property involved in this case.  And attached, and clearly added for this particular power, are the legal descriptions of the same property.  When there is a conflict between a printed provision in a contract and a provision added by the parties for the particular contract, the provision added by the parties prevails.  Osgood v. Medical, Inc.,415 N.W.2d 896, 901 (Minn. App. 1987), review denied (Minn. Feb. 12, 1988).  Pursuant to this rule, it is our conclusion that (1) Ned intended to grant Lorna the authority to sell the property at issue, and (2) the power of attorney is an effective common-law power of attorney designating Lorna as his attorney in fact. 

III.

            Perry argues that the district court clearly erred by concluding that Lorna did not intend to bind, nor did she bind, Ned when she signed the May 13, 2002 purchase agreement.  Determining Lorna’s intent is a question of fact, and this court will not disturb the district court’s determination unless it was clearly erroneous and unsupported by reasonable evidence.  See Fletcher, 589 N.W.2d at 102. 

            Lorna testified that she did not know if she was signing the purchase agreement for Ned and that she believed that he would sign the purchase agreement at a later time.  The fact that the Butterfields were having marital difficulties at the time Lorna signed the agreement would explain a lack of communication between them, which would further explain Lorna’s unfounded belief that Ned would sign the agreement, as well as any reluctance on her part to bind Ned.  Lorna signed the purchase agreement in her name, and the purchase agreement does not indicate that she was also signing as attorney in fact for Ned.  We conclude that reasonable evidence supports the district court’s determination that Lorna did not intend to bind Ned when she signed the May 2002 purchase agreement.

Further, we note that not only is Ned’s signature absent from the purchase agreement, but also that his name appears nowhere on it.  A description of the parties is an essential element of a contract to purchase or sell real property.  See Bouten v. Richard Miller Homes, Inc., 321 N.W.2d 895, 899 (Minn. 1982) (noting that an “adequate description of the parties” is necessary in order for a written contract to sell real property to satisfy the statute of frauds).  Because Ned’s name is absent from the purchase agreement, the purchase agreement does not contain an adequate description of the parties, and it cannot bind Ned’s interest in the property regardless of whether Lorna intended to bind Ned when she signed it.

IV.

Perry next argues that the Butterfields’ conduct ratified Lorna’s actions as attorney in fact to convey Ned’s undivided property interest.  “Ratification occurs when one having full knowledge of all material facts confirms, approves or sanctions a previous act done on behalf of the principal without authority.”  Gresser v. Hotzler, 604 N.W.2d 379, 385 (Minn. App. 2000) (quotation omitted).  Perry bases his argument on the unequivocal-reference theory.  The unequivocal-reference theory applies “where the relationship of the parties, as shown by their acts rather than by the alleged contract, cannot reasonably be explained except by reference to some contract between them.”  In re Guardianship of Huesman, 354 N.W.2d 860, 863 (Minn. App. 1984) (quoting Burke v. Fine, 236 Minn. 52, 55-56, 51 N.W.2d 818, 820 (1952)).

            Perry argues that the Butterfields’ conduct cannot be explained except by the fact that they both agreed to sell the property to him.  But he points to no actions taken by Ned.  Rather, he points to Lorna’s efforts to help him rezone the property and argues that Ned “stood by” while Lorna helped with these rezoning efforts.  Perry also points to Lorna’s conduct in forwarding the Department of Agriculture’s notice to Perry and to the fact that hunters paid Perry to hunt on the property.  The district court correctly determined that these actions were irrelevant.  Lorna’s conduct does not prove that Ned ratified the purchase agreement.  Moreover, Ned’s revocation of the power of attorney reflects an opposition to the alleged contract to sell the property.  We conclude, therefore, that Perry did not sustain his burden of proving that Ned ratified the purchase agreement by unequivocal reference.  

V.

Finally, Perry argues, in the alternative, that the district court erred by concluding that Lorna did not contract to sell him her one-half interest in the property.  “Whether a contract exists is generally an issue for the factfinder.”  Gresser, 604 N.W.2d at 382.  An enforceable contract requires a meeting of the minds, which means that “the parties’ intent as to the fundamental terms of the contract can be ascertained with reasonable certainty.”  LaPanta v. Heidelberger, 392 N.W.2d 254, 258 (Minn. App. 1986).  A written contract for the sale of real property must include: “(1) a statement of consideration; (2) an adequate description of the parties; (3) an adequate description of the land; (4) the general terms and conditions of the transaction; and (5) subscription by the vendor.”  Bouten, 321 N.W.2d at 899.

The district court concluded that no evidence showed a meeting of the minds “as to the selling price of Lorna Butterfield’s undivided one-half interest” in the property and that there was no contract regarding her interest.  The purchase agreement does not mention a description of her one-half interest in the property or the consideration required for her one-half interest.  We conclude that the district court did not err by determining that there was no contract to convey Lorna’s one-half interest in the property.

Affirmed.