Ahmed Demmaj, Appellant, vs. Grace M. Elasky (Trustee under Trust), Respondent.

Ahmed Demmaj, Appellant, vs. Grace M. Elasky (Trustee under Trust), Respondent. A04-2424, Court of Appeals Unpublished, January 24, 2006.

This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-2424

 

 

Ahmed Demmaj,

Appellant,

 

vs.

 

Grace M. Elasky

(Trustee under Trust),

Respondent.

 

 

Filed January 24, 2006

Affirmed
Crippen, Judge*

 

Ramsey County District Court

File No. C1-04-3904

 

 

P. Chinedu Nwaneri, Nwaneri & Associates, P.L.L.C., 2147 University Avenue, Suite 105, St. Paul, MN  55114-1326 (for appellant)

 

Eric Magnuson, Shanda K. Pearson, Rider Bennett, L.L.P., 33 South Sixth Street, Suite 4900, Minneapolis, MN  55402; and

 

David D. Himlie, 325 Southdale Place, 3400 West 66th Street, Edina, MN  55435 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Crippen, Judge.

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appellant Ahmed Demmaj, the vendee on a cancelled contract for deed, challenges the proof of service of the notice of cancellation.  Because the record fails to demonstrate a genuine issue of material fact on the occurrence of service of notice, and there is no merit in the other claims stated on appeal, we affirm.

FACTS

            In 1992, appellant entered into a contract for deed with Midway Smorgasbord for the purchase of property located at 501 Snelling Avenue North in St. Paul.  Eleven years later, appellant defaulted on the contract by failing to make numerous required payments.  Notice of the default was mailed in October 2003.

            A car log of Ramsey County Deputy Sheriff Peluso confirms that he found appellant at the 501 Snelling Avenue North site on January 6, 2004, and personally served him with notice of cancellation of the contract.  Peluso also filed an affidavit of service certifying that he personally served appellant with the notice.  Appellant did not cure the default as required in order to prevent the cancellation.

            In April 2004, appellant responded to an unlawful detainer action by commencing suit for a declaratory judgment that the contract was not duly cancelled.  The district court's summary judgment dismissed the suit based on a determination that appellant defaulted on the contract and was properly served with notice of cancellation.

D E C I S I O N

            On appeal from summary judgment, we review the record for the purposes of determining whether there are any genuine issues of material fact and whether the district court erred in applying the law.  Offerdahl v. Univ. of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988).  Summary judgment is proper when one party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03. 

1.  Service of Notice

            Appellant maintains that Deputy Peluso did not serve him with notice on January 6, 2004.  We must take a sheriff's affidavit of service to be strong evidence of proper service.  Kueffner v. Gottfried, 154 Minn. 70, 73, 191 N.W. 271, 272 (1922).  "An officer's return cannot be impeached by means of equivocal and evasive affidavits, and, to set aside and vacate a judgment on the ground that such a return is false, the proof of its untruthfulness must be positive, satisfactory, and convincing."  Osman v. Wisted, 78 Minn. 295, 297, 80 N.W. 1127, 1127 (1899).

            Deputy Peluso testified in his deposition that he personally served appellant on January 6, 2004.  Contemporaneously with this service, Peluso completed a car log and the affidavit of service that certified the same facts.  Appellant denies that service occurred and asserts that three months after the date of service Deputy Peluso admitted to appellant that he did not recall serving him with the notice of cancellation.  But the district court did not err in determining that appellant's testimony, without documentation or other confirmation does not constitute positive and convincing evidence sufficient to overcome the presumption of validity with regard to the deputy's affidavit.

            Appellant argues that service was improper and ineffective because Deputy Peluso did not make service at appellant's residence.  But the statute and rules do not establish different standards of proof for personal service at a place of business.[1]

            Appellant also argues that Deputy Peluso did not establish how he knew to find appellant at the property.  The letter requesting service incorrectly identifies the general location of the property.  But Peluso's affidavit and car log indicate that he found the precise address of the property, and the governing statute and rule do not require that he show the manner in which he found the person he personally served.  The absence of that evidence does not significantly weaken the attestation of Peluso at the time the service occurred.

Because appellant failed to demonstrate a genuine issue of material fact on the occurrence of service of notice, the district court did not err when it granted summary judgment for respondent.

2.  Other Issues

            Appellant also argues that summary judgment for respondent was improper because Midway Smorgasbord, the vendor named in the contract, had been dissolved before the contract was executed and had no interest in the property.  Richard Elasky was the sole shareholder of Midway, and the contract property was transferred to him and the corporation dissolved in 1988, several years before the contract was executed.  After the contract was executed, Midway transferred the vendor's interest to Elasky's living trust, which is now represented by respondent Grace Elasky.

            Richard Elasky possessed the fee simple interest in the property that was the subject of the contract for deed, and it is evident that Midway Smorgasbord was an alter ego or instrumentality of Richard Elasky.  A reviewing court can disregard the corporate entity when the shareholder "owned all, or substantially all, of the stock, treated the property as his own, and, most importantly, because no shareholder or creditor would be adversely affected."  Roepke v. W. Nat'l. Mut. Ins. Co., 302 N.W.2d 350, 352 (Minn. 1981).  This view of the transaction fulfills the aim of the law to give effect to the intentions of the parties as indicated in the contract instrument.  See Knudsen v. Transp. Leasing/Contract, Inc., 672 N.W.2d 221, 223 (Minn. App. 2003) (noting that when interpreting an unambiguous contract, the plain language is conclusive of the parties' intent), review denied (Minn. Feb. 25, 2004).   

            Significantly, appellant ratified the contract by means of payments made on the contract for more than ten years.  After Richard Elasky died, appellant's payments were made to respondent, his successor in interest.  And appellant's contacts after his default confirm his recognition of a lawful contract and respondent's ownership of the vendor's interest.  Finally, there is nothing in the record to indicate that appellant did not benefit from the possession of the property under the contract.  Appellant's arguments on appeal conflict with evidence in the record on the intention of the parties at the time of the contract and thereafter.

            Similarly, appellant contends that the notice of cancellation is ineffective because it came from the corporation.  We are mindful again that the corporation was not an entity distinguishable in any relevant way from Richard Elasky.  Moreover, the purpose of the statutory cancellation procedure "is to give vendees notice of an impending cancellation and a reasonable period of time to redeem their interest."  Conley v. Downing, 321 N.W.2d 36, 39 (Minn. 1982).  Appellant does not point to any evidence that he was confused by the cancellation notice.  For like reasons, it is not legally significant that the notice inadvertently spoke of "Midwest" rather "Midway" Smorgasbord; the incorrect name did not diminish the sufficiency of notice to appellant.

            Appellant also contends that respondent "forced" appellant to default by failing to return calls to appellant during the period of redemption following the service of notice of cancellation.  Appellant has not claimed, and the record does not show, that respondent interfered with appellant's attempts at redemption.  And appellant points to no law placing upon the vendor any obligation of contact or notice to the vendee after the cancellation notice has been duly served.

            Additionally, appellant contends that respondent waived her right to cancel the contract for deed when she allowed appellant to cure his default in 2001, thereby violating a time-is-of-the-essence clause in the contract.  But this clause specifically provides that neither the extension of time for payments nor waiver of the right to declare a forfeiture "shall in any manner affect Seller's right to cancel this contract because of defaults subsequently occurring"; the plain meaning of the contract provision demonstrates that respondent retained the right to cancel the contract for deed despite earlier defaults.  Moreover, a party can waive the cancellation of a contract for deed only when there is a showing, which did not occur here, that "the waiving party had full knowledge of the facts and his legal rights and intended to relinquish these rights."  Thomey v. Stewart, 391 N.W.2d 533, 536 (Minn. App. 1986).

            Appellant also maintains that respondent waived her right to cancel the contract for deed because she retained three $500 money orders dated December 29, 2003.    Appellant attempted to deliver the money orders by placing them in respondent's mailbox.  The mere delivery of a sum of money does not establish the required acceptance by plaintiff.  Jandric v. Skahen, 235 Minn. 256, 261, 50 N.W.2d 625, 628 (1951).  The money orders represented a small fraction of the amount of appellant's default, and respondent did not cash the money orders but turned them over to her attorney, who returned them to appellant by certified mail.  The money orders were subsequently returned as unclaimed to respondent's attorney.  Nothing in this record suggested to appellant or shows to this court the intention of respondent to keep the money orders.

            Finally, notwithstanding his attack on the legality of the contract for deed, appellant contends that he is entitled to specific performance in exchange for full payment on the contract for deed.  But once statutory notice has been served and cancellation effected, all rights under a contract for deed are terminated.  Zirinsky v. Sheehan, 413 F.2d 481, 484 (8th Cir. 1969), cert. denied, 369 U.S. 1059 (1970); West v. Walker, 181 Minn. 169, 171, 231 N.W. 826, 827 (1930); Olson v. N. Pac. Ry. Co., 126 Minn. 229, 231, 148 N.W. 67, 68 (1914).

            Similarly, appellant maintains that the doctrine of equitable conversion establishes that he holds equitable title to the property.   But title interests of the vendee are vested on the condition that the vendee does not default on the contract.  Tollefson Dev., Inc. v. McCarthy, 668 N.W.2d 701, 704 (Minn. App. 2003).  Because appellant did not take action to cure the default after notice of cancellation was served, he is no longer vested with equitable title.

            In a further extension of his plea for specific performance, appellant alleges fraud on the part of Richard Elasky at the time of the execution of the contract for deed.  But appellant did not plead fraud in his amended complaint as required by Minn. R. Civ. P. 9.02.  "Failure to particularly plead fraud justifies summary judgment against the party alleging it."  Berke v. Resolution Trust Corp., 483 N.W.2d 712, 717 n.3 (Minn. App. 1992), review denied (Minn. May 21, 1992).

            Affirmed.

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

[1] The statute requires that "notice must be served within the state in the same manner as a summons in the district court . . . ."  Minn. Stat. § 559.21, subd. 4(a) (2002).  Service can be performed upon an individual "by delivering a copy to the individual personally or by leaving a copy at the individual's usual place of abode with some person of suitable age and discretion then residing therein."  Minn. R. Civ. P. 4.03.