Alice Grant, Respondent, vs. Jack Lehtinen, et al., Appellants, Terrance Montgomery, Respondent, Church of St. Jude of the Lake, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-02-2074

 

 

Alice Grant,

Respondent,

 

vs.

 

Jack Lehtinen, et al.,

Appellants,

Terrance Montgomery,

Respondent,

Church of St. Jude of the Lake,

Respondent.

 

 

Filed August 19, 2003

Affirmed in part and reversed in part

Anderson, Judge

 

Washington County District Court

File No. C0003187

 

Steven D. Soltau, 3601 Minnesota Drive, Suite 880, Edina, MN  55436 (for appellant)

 

Terrance Montgomery, 16324 Seventh Street Lane South, Lakeland, MN  55043 (attorney pro se)

 

Richard W. Copeland, 4524 Highway 61, White Bear Lake, MN  55110 (for respondent Alice Grant)

 

Thomas R. Haugrud, Esq., Rosene, Haugrud & Staab, Chartered, 400 Robert Street North, Suite 1800, St. Paul, MN  55101 (for respondent Church of St. Jude of the Lake)

 

            Considered and decided by Anderson, Presiding Judge, Willis, Judge, and Hudson, Judge.

U N P U B L I S H E D  O P I N I O N

 

G. BARRY ANDERSON, Judge

 

            In this real-estate dispute, appellants argue that (i) respondent Alice Grant cannot collect damages for denial of an alleged option to repurchase her property because the statute of frauds requires such options to be in writing; (ii) Grant cannot collect on appellants' contractual offer to pay her to settle the case because she repudiated that contract by rescinding it and selecting a different remedy, she failed to seek such a recovery in her pleadings, and she did not fulfill the terms of the contract; and (iii) the district court abused its discretion by assessing attorney fees against appellants.  We affirm in part and reverse in part.

FACTS

 

            Grant owned and occupied the residence at 108 Fir Street in Mahtomedi, immediately across the street from respondent Church of St. Jude of the Lake (the church), for more than 40 years. 

1997 contract

            Because of Grant's increased medical expenses, she became delinquent on her mortgage payments.  Respondent Terrence Montgomery contacted Grant about acquiring the mortgage to her residence on behalf of appellant Dr. Jack Lehtinen.[1]  Lehtinen is the sole shareholder and president of appellant corporation SDMTK, Inc. (SDMTK).

            Montgomery had worked with Lehtinen and SDMTK on real-estate transactions in the past, although they had no written agency arrangement.  In what the parties refer to as "the 1997 contract," Grant contends that, at Lehtinen's direction, Montgomery proposed the following deal: Lehtinen would attempt to redeem Grant's property from the mortgage foreclosure sale, and, if successful, Lehtinen would give Grant an option to repurchase the residence for Lehtinen's out-of-pocket costs plus $15,000.  In addition, Grant would be allowed to remain at the residence in exchange for paying Lehtinen a monthly rent of $900 until she exercised her option to repurchase the property. 

            Although Lehtinen testified consistently with this description of the agreement and conceded that he gave Grant a right to repurchase, he claimed at trial that he never gave such an option to Grant.  But in a letter that Montgomery sent to Grant's attorney on March 17, 1997, Montgomery wrote, "In talking to Mr. Jack Lehtinen today he agrees that the best way to go after redemption of the property at 108 Fir Street would be a rental agreement with a continued option to buy at $80,000.00." (Emphasis added).  This letter also states that the "amount of rent" that Grant would pay would be "around $700.00 plus the taxes & ins."  Montgomery, who the district court found was acting as Lehtinen's agent, signed this letter.  Pursuant to the terms of the 1997 contract, Grant conveyed a mortgage to Lehtinen and paid rent of $900 from the time of the contract, approximately March 1997, until February 2000.

Redemption proceedings

            JBI & Associates, Inc. (JBI) obtained an interest in Grant's foreclosed-on property and had first priority to redeem; SDMTK had second priority;[2] and Lehtinen individually had third priority.  In Lehtinen's September 22, 1999 memorandum to the district court concerning redemption proceedings unrelated to this action, he appeared to acknowledge Grant's option to buy when he stated, referring to Grant, "Should the 73 yr old, forty two year old resident, of 108 Fir Street, lose her right to repurchase her home * * * ?" (Emphasis added).  In a contested redemption proceeding, this court concluded that JBI's redemption was timely and valid.  Washington County Sheriff v. JBI & Assoc., Inc., 592 N.W.2d 139, 142 (Minn. App. 1999), review denied (Minn. July 28, 1999).  But Lehtinen ultimately obtained title through a settlement with JBI based on the redemption rights that he personally acquired from Grant. 

            After the resolution of the redemption proceedings, Grant attempted to contact Lehtinen to determine how much he or SDMTK spent in obtaining the property's title to calculate the amount of her repurchase price.  After Grant made numerous unsuccessful attempts to obtain this information, Lehtinen ultimately told Grant that the repurchase price would be $111,000.[3] 

            Shortly after receiving this quoted purchase price, Grant discovered at a city council meeting that SDMTK had sold 108 Fir Street to the church.  The church bought the property for expansion purposes and paid $150,000. 

2000 contract

            To encourage Grant to leave the residence as soon as possible, Lehtinen, in writing, proposed the following, on January 22, 2000 (the 2000 contract):

It is hereby agreed that if Alice Grant and her brother vacate the premises at 108 Fir St. and turn over the keys on or before February 29, 2000, Alice Grant will receive $20,000.00, minus any unpaid water bills.  The $20,000 also constitutes payment in full for all items left.

 

Both Lehtinen and his wife, Carolyn Lehtinen, signed this document.   

            Grant claims that she was completely moved out of the residence by 10:00 p.m. on February 29.[4]  Grant maintains that although she left some appliances in the house, she considered them to be forfeited to Lehtinen under the property clause of the agreement.  Finally, Grant testified that she did not deliver a key to Lehtinen as the contract required because she never had a key that worked at that houseshe simply did not use one. 

            Neither Lehtinen nor SDMTK paid Grant $20,000, or any lesser amount, under the 2000 contract.  Instead, Lehtinen tried to modify the 2000 contract by deducting $900 for "unpaid February rent" and $500 for the cost of title insurance on the property for the sale to the church.  Lehtinen told Grant to take a check for $18,600 and take him to conciliation court if she wanted to try to get the entire $20,000.  Grant insisted on the full $20,000.

            Grant initiated this suit on March 24, 2000, alleging breaches of both the 1997 contract regarding her right to repurchase the property and the 2000 contract to vacate the property in exchange for $20,000.  She originally requested specific performance of the 1997 contract, but she also alternatively pleaded damages; she eventually pursued the latter remedy after the church substantially altered the property.  The district court held a bifurcated trial, reserving the church's claims until after the trial on Grant's claims.  The district court informed the parties that some issues were for a jury to decide but that the court would be determining other issues; none of the parties objected to this procedure. 

            The district court concluded that Lehtinen and SDMTK were to be considered one and the same, and the jury was informed of this ruling prior to deliberating.[5]  The jury found that a contract was made between Grant and Lehtinen-SDMTK in 1997, that Lehtinen-SDMTK breached the 1997 agreement (and Grant did not), and that $67,075.45 would fairly compensate Grant for this breach.  As to the 2000 contract, the jury found that Lehtinen-SDMTK breached this contract also (and Grant did not) and awarded Grant $20,000 in damages.

            Lehtinen-SDMTK brought motions for judgment notwithstanding the verdict (JNOV) and for a new trial, alleging various errors.  The district court denied the motions.  The court also awarded the church attorney fees in the amount of $39,305.31, assessed against Lehtinen-SDMTK.  This appeal followed. 

D E C I S I O N

 

            Lehtinen-SDMTK seeks review of the district court's judgments entered on April 18 and April 25, 2002, as well as the court's order entered on September 30, 2002, denying Lehtinen-SDMTK's motion for JNOV and a new trial. 

            We are not bound by and need not give deference to a district court's decision on a purely legal issue.  Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).  "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses."  Minn. R. Civ. P. 52.01.

As to the order denying Lehtinen-SDMTK's post-trial motions,

[o]n appeal from a denial of a motion for a new trial, the verdict must stand unless it is manifestly and palpably contrary to the evidence, viewed in a light most favorable to the verdict.

 

ZumBerge v. N. States Power Co., 481 N.W.2d 103, 110 (Minn. App. 1992) (citation omitted), review denied (Minn. Apr. 29, 1992). 

            We review the denial of a motion for JNOV de novo.  Pouliot v. Fitzsimmons, 582 N.W.2d 221, 224 (Minn. 1998).  Where JNOV has been denied, on review the denial "must be affirmed, if, in the record, there is any competent evidence reasonably tending to sustain the verdict."  Id. (quotation omitted).  "The evidence must be considered in the light most favorable to the prevailing party and an appellate court must not set the verdict aside if it can be sustained on any reasonable theory of the evidence."  Id. (citation omitted).

I

            Lehtinen-SDMTK first argues that Grant may not recover under the 1997 contract that purportedly gave her an option to repurchase the property because the alleged option was not in writing and is therefore unenforceable under the statute of frauds, Minn. Stat. § 513.05 (2002).  Alternatively, Lehtinen-SDMTK claims that Montgomery did not have authority to act as agent for Lehtinen-SDMTK in entering into this contract, and therefore it cannot be enforced.

            The statute of frauds seeks to prevent contracts that were never made from being enforced by means of fraud and perjury.  Radke v. Brenon, 271 Minn. 35, 38, 134 N.W.2d 887, 890 (1965).  To achieve this purpose, a party seeking to enforce a contract for the sale of an interest in land must satisfy the statute by a writing that contains:

(1) a statement of the 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 v. Richard Miller Homes, Inc., 321 N.W.2d 895, 899 (Minn. 1982).   A subscription is the same as a "signing."  Id. (citation omitted).

            A contract giving a party the option to purchase a piece of property is generally outside the statute of frauds because it conveys no interest in land.  Shaughnessy v. Eidsmo, 222 Minn. 141, 145, 23 N.W.2d 362, 365 (1946).  But if the contract is subsequently relied on as the sole memorandum of the contract for the sale of real estate, it is within Minn. Stat. § 513.05.  Malevich v. Hakola, 278 N.W.2d 541, 543 (Minn. 1979).  Although neither party, nor the district court, discussed the fact that option contracts are generally outside the statute, we conclude that this rule is inapplicable because Grant is seeking to use the option memorandum as the sole evidence for re-purchasing the parcel.  Thus, because the March 17 memorandum is within the statute of frauds, it, standing alone, must meet all the elements of the statute.  See Minn. Stat. § 513.05 (stating that a singular "note or memorandum" must satisfy the statute). 

            The district court held that the statute of frauds was satisfied based on a March 17, 1997, memorandum that Montgomery signed containing all of the elements required by the statute.

            The March 17 memorandum sufficiently identifies the subject real estate as "the property at 108 Fir," the consideration as "80K,"[6] and the parties to the contract as Grant and Lehtinen.  The memo also gives the general terms and conditions of the transaction"a rental agreement with a continuing option to buy at 80K." 

            Significantly, though, the memo does not mention the eventual price that Lehtinen quoted to Grant, $111,000; that the "80K" figure would be adjusted in any way to account for a $15,000 profit; or that Lehtinen's costs to redeem the property would also be included.  The eventual sale price, including the $15,000 profit, apparently arose from later correspondence between Grant's attorney and Lehtinen.  As we noted, the single March 17 memorandum must evidence the entire agreement between the parties.  Without these terms in the memorandum, it is impossible to conclude that the March 17 memorandum constituted a full expression of the parties' agreement.  Not only is the eventually quoted purchase price missing, there is also no mention of the mechanism for calculating the purchase price or that the "80K" figure was even subject to change. 

            Moreover, the parties recognized that this memorandum did not, standing alone, constitute the entire agreement.  Grant's counsel conceded at oral argument that the agreed-on profit of $15,000 and payment of costs in redeeming the property were absent from this writing.  Furthermore, Montgomery couched the terms of this memo in the future tense.  Thus, his statements that the best approach "would be a rental agreement" and that the option to repurchase "depends on the state and federal [governments] not filing an intent to redeem," demonstrate that the parties did not intend this writing to be the effective legal document for Grant's purchase of the property.   

            Because we conclude that the repurchase transaction was not sufficiently described in the March 17 memorandum, we need not address whether Montgomery was authorized to act on Lehtinen's behalf or whether a written agency agreement was necessary to bind Lehtinen to this agreement.

            In some circumstances, to further the overall purpose of the statute, formal technicalities of the statute of frauds are not enforced.  Bouten, 321, N.W.2d at 899.  Despite the shortcomings of the March 17 memorandum, the district court found that Grant's and Lehtinen's actions indicate part performance under the 1997 contract excusing strict compliance with the statute of frauds.[7]

            The doctrine of part performance was created for the same purposes as the statute of fraudsthe prevention of fraudand "it arose out of the necessity of preventing the statute from becoming an agent of fraud."  73 Am. Jur. 2d Statute of Frauds § 313 (2001).  To constitute part performance, the vendee must usually take possession of the property and make valuable improvements to it.  Bouten, 321 N.W.2d at 900.  The payment of the purchase money is usually insufficient to constitute part performance, but payment "may be sufficient if provided through personal services which would be hard to value."  Id.  Thus, part performance of an agreement may take the contract out of the operation of the statute and permit specific performance to protect the rights of a party under the contract.  Shaughnessy, 222 Minn. at 147, 23 N.W.2d at 366. 

            But Minnesota case law has not extended this rule to cases involving actual damages.  While we recognize that specific performance was rendered impracticable here through no fault of Grant, she cites no authority for the proposition that this equitable doctrine may be applied to an action that seeks damages, even if such a remedy is necessitated by the other party's acts.[8] 

            Because we hold that the memorandum does not satisfy the rigid requirements of the statute of frauds and we refuse to extend the equitable part-performance doctrine to cases involving legal damages, we conclude that Grant may not recover under the 1997 contract and reverse the district court on this issue.[9]

II

            We next turn to Lehtinen-SDMTK's argument that Grant should not be allowed to collect the $20,000 that the jury awarded her under the 2000 contract because (a) Grant repudiated the 2000 contract by electing to pursue damages under the 1997 contract, (b) Grant is barred from recovery because she did not request this relief in her complaint, and (c) Grant failed to meet the contract's terms. 

            (a)       Election of remedies and repudiation

            Essentially, Lehtinen-SDMTK argues that the 1997 and 2000 contracts are mutually exclusive and that because Grant's counsel repeatedly argued that Grant was seeking to enforce her repurchase rights under the 1997 contract, Grant elected that remedy and repudiated any action that she might have had to pursue the $20,000 "move-out" payment.  Lehtinen-SDMTK therefore alleges that the district court erred as a matter of law by submitting the question of the existence of both contracts to the jury. 

            The doctrine of election of remedies is not applicable here.  This doctrine "requires a party to adopt one of two or more coexisting and inconsistent remedies which the law affords the same set of facts."  Christensen v. Eggen, 577 N.W.2d 221, 224 (Minn. 1998) (quotation omitted).  The purpose of the remedy is to prevent parties from obtaining double recoveries for a single wrong.  Id. (quotation omitted).  But here, Grant's pursuit of both a recovery under the 1997 and 2000 contracts would not amount to a prohibited double recovery.  First, the operative facts for each contract arise out of differing circumstances.  The claim under the 1997 contract depends on the refusal of Lehtinen-SDMTK to allow Grant to repurchase her property; the claim under the 2000 contract hinges on Lehtinen-SDMTK's failure to pay the $20,000 allegedly due Grant for moving out early.  Thus, no "single wrong" or "same set of facts" applies to both contracts.  The election-of-remedies doctrine does not bar the recovery for two separate breaches when the facts warrant such a result.  See id. (holding that the purpose of the doctrine is not to prevent recourse to a particular remedy but to prevent double recovery for a single wrong).

            Second, although Grant offered to provide a quitclaim deed to the property and offered to take the $20,000 in full settlement of her claims under the 1997 contract, Lehtinen did not accept this offer.  As Grant's attorney stated, "That particular settlement attempt went by the boards" when it was not timely accepted.  Therefore, the district court's conclusion that Grant is not barred from litigating both of these alleged breaches was correct. 

            (b)       Pleading the 2000 contract

            Lehtinen-SDMTK next maintains that because Grant did not specifically seek relief in her complaint based on the alleged breach of the 2000 contract, and she did not subsequently amend her complaint, she could not recover $20,000 in damages at trial.  Because Lehtinen-SDMTK did not consent to litigate this issue, they argue, Grant is bound by her pleadings.  See Minn. R. Civ. P. 15.02 (addressing litigation by consent); Great Am. Ins. Co. v. Golla, 493 N.W.2d 602, 605 (Minn. App. 1992) ("A party is bound by its pleadings unless other issues are litigated by consent." (citation omitted)).

            Grant's complaint does not specifically request judgment for the $20,000 at issue under the 2000 contract.  But to require that Grant do so would be to make an icon of form; the "wherefore" clause in the complaint demands that the court find that "Jack Lehtinen, SMDTK, Inc. * * * breached their contract with [Grant] and that as a direct result thereof [Grant] has suffered damages."  Notably, the complaint clearly alleges that Lehtinen-SMDTK "breached their agreement with [Grant] by failing and refusing to pay the $20,000.00 as agreed" and that Grant "has not been paid $20,000.00."  Thus, despite the fact that Grant's complaint did not use the phrase "2000 contract," Grant sufficiently alleged that the 2000 contract was breached and that she is due $20,000. 

            The Minnesota Supreme Court has stated that

[u]nder the Rules of Civil Procedure, only notice pleading is required. The rules do not require adherence to a mechanistic and rigid formula.  Instead, the pleadings are liberally construed to insure that the defending party is given adequate notice of the claim. 

 

L.K. v. Gregg, 425 N.W.2d 813, 819 (Minn. 1988) (citation omitted).  Under Minnesota's pleading rules, a complaint is sufficient if it contains "a short and plain statement of the claim showing that the pleader is entitled to relief and a demand for judgment for the relief sought[.]"  Minn. R. Civ. P. 8.01. 

            The district court found that the general nature of Grant's complaint put Lehtinen-SDMTK on sufficient notice of the issues to be tried, and we hold that this finding is not

clearly erroneous.[10]

            (c)        Terms of the 2000 contract

            Lehtinen-SDMTK finally argues that even if Grant did not repudiate the 2000 contract under the election-of-remedies doctrine and it was properly placed at issue in Grant's complaint, Grant may still not recover because she failed to perform her obligations under the contract.  Specifically, the contract required Grant and her brother to vacate 108 Fir Street and to turn over the keys on or before February 29, 2000. 

            By special verdict, the jury found that Grant vacated the property as required by the terms of the contract.  On review, we will not set aside answers to special-verdict questions unless they are "perverse and palpably contrary to the evidence" or unless the evidence is so clear that there is no room for differences among reasonable people.  Hanks v. Hubbard Broad., Inc., 493 N.W.2d 302, 309 (Minn. App. 1992) (citation omitted), review denied (Minn. Feb. 12, 1993).  "If the jury's special verdict finding can be reconciled on any theory, the verdict will not be disturbed."  Id. (citation omitted).

            The jury's finding that Grant performed as required under the 2000 contract was not contrary to the evidence.  In her testimony, Grant vehemently maintained that she was out of the house by 10:00 p.m. on February 29 and that she never again set foot on the property.  In a letter her attorney drafted on March 3, 2000, however, he notified Montgomery that Grant would "have her belongings out of the house and garage by Saturday night, March 4th."  It is possible that this letter is in reference to a stove that Grant testified that she had left at the residence after February 29 in the hope of picking it up later.  Grant stated that if Lehtinen would not let her do so, she would consider it left to Lehtinen under the contract clause stating that "all items left" would be considered Lehtinen's.  Finally, Grant testified that she did not deliver a key to Lehtinen as the contract required because she never had a key that worked at that houseshe simply did not use one. 

            Although there is conflicting evidence in the record concerning whether Grant was out of the residence by the contract date, because the jury apparently believed Grant's testimony and discounted the later correspondence by her attorney, the jury determination should be given deference because it is based on credibility determinations and is not "palpably contrary to the evidence."  Id.

III

            Lehtinen-SDMTK challenges the district court's order that it pay the litigation expenses (costs, disbursements, and attorney fees) incurred by the church in defending its title to the property at 108 Fir Street.  "On review, an appellate court will not reverse a trial court's award or denial of attorney fees absent an abuse of discretion."  Becker v. Alloy Hardfacing & Eng'g Co., 401 N.W.2d 655, 661 (Minn. 1987) (citation omitted). 

            The church was initially brought into this matter by Grant, who alleged that the church's title, acquired from Lehtinen-SDMTK, was subordinate to her rights to repurchase the property under the 1997 contract.  The district court, however, found that Grant would not have involved the church had Lehtinen-SDMTK not breached the 1997 contract.  Although the church knew that Lehtinen-SDMTK denied making the 1997 contract with Grant, the church assumed that Grant would be paid $20,000 by SDMTK if she and her brother vacated the property by February 29, 2000, and that this payment would extinguish Grant's rights in the property.  The district court found that the church could not foresee that Lehtinen-SDMTK would breach the 2000 contract and refuse to pay Grant the $20,000 and thus concluded that Lehtinen-SDMTK's breaches of both the 1997 and the 2000 contracts necessitated that the church incur various expenses to defend its title.[11]  The district court therefore awarded the church attorney fees in the amount of $39,305.31, assessed against Lehtinen-SDMTK

            The general American rule prevents shifting attorney fees to an opposing party unless a specific contract or statute authorizes such action.  Kallok v. Medtronic, Inc., 573 N.W.2d 356, 363 (Minn. 1998).  But in some circumstances the third-party-litigation exception to the American rule allows a court to award attorney fees to the prevailing party.  This rule provides,

where the wrongful act of the defendant thrusts the plaintiff into litigation with a third person, the plaintiff may recover from the defendant the expenses incurred in conducting the litigation against the third party, including attorneys' fees.

 

First Fiduciary Corp. v. Blanco, 276 N.W.2d 30, 34 (Minn. 1979) (quotation omitted).

            The exception to the general American rule that disallows the shifting of attorney fees is not relevant to the facts at issue.  In First Fiduciary, the third-party-litigation exception was analyzed from the plaintiff's point of view.  First Fiduciary, 276 N.W.2d at 34.  Thus, when a defendant's wrongful act requires a plaintiff to incur expenses in litigating against a third-party defendant, the plaintiff may recover attorney fees from the original defendant.  Id.  But the parties cite no authority for the proposition that Minnesota recognizes the right of a third-party defendant to recover attorney fees from a defendant under the First Fiduciary exception.

            Applying these rules to our facts, the district court abused its discretion in awarding fees to the church.  Expanding this exception potentially renders defendants liable to innumerable parties with little connection to the original litigation between the plaintiff and the defendant.  Although we recognize the argument that the alleged breaches of contract by Lehtinen-SDMTK required the church to incur these litigation expenses, we refuse to extend the third-party-litigation exception to these facts.  However disturbing the actions of Lehtinen-SDMTK might have been, we conclude that the award of attorney fees was unwarranted, and therefore we reverse that award. 

            Affirmed in part and reversed in part.

[1]  Lehtinen retired from active dentistry in approximately 1977 and since that time has been a real-estate investor. 

[2]  SDMTK obtained the state-tax lien on the property.

[3]  Lehtinen arrived at this figure after he represented that the cost to purchase the property was $87,000, plus attorney fees of $9,000, plus an agreed-on profit of $15,000.

[4]  Although Grant had previously asked for an extension of a few days to remove everything, she testified that she did not use it.  In addition, although a washer and dryer were to be picked up after the February 29 deadline, when movers arrived at the house and saw a "keep out" sign on the door, they did not go in to retrieve the appliances.  Thus, Grant stated that she did not go back into the house after 10:00 p.m. on February 29. 

[5]  This ruling that "pierced the corporate veil" of SDMTK is not at issue on appeal.  We therefore refer to appellants collectively as "Lehtinen-SDMTK."

[6]  The March 17, 1997, memo also details how the parties would arrive at Grant's monthly rent payment.  The amount would be based on Lehtinen's "part on the mortgage plus 1/12 taxes and ins. Probably around $700 for mortgage plus the taxes and ins."  Although Grant's eventual payment ended up being $900 a month, this memorandum does not need to specifically address the rental terms, only the terms for the sale of the property.

[7]  The district court relied on Grant giving Lehtinen a mortgage and her payments to him of $900 per month for rent.  Lehtinen accepted the rent payments and used Grant's mortgage to obtain the property in the redemption proceedings with JBI & Associates.  Thus, the court concluded that the part performance of the two parties took the 1997 contract outside the statute of frauds.  The jury was left to consider whether a contract had in fact been formed; who, if anyone, breached that contract; and what amount of damages would fairly compensate the aggrieved party.

[8]  Grant cites Baumgartner v. Corliss, 115 Minn. 11, 131 N.W. 638 (1911), and Gethsemane Lutheran Church v. Zacho, 258 Minn. 438, 104 N.W.2d 645 (1960), for the position that damages may be recovered when specific performance is rendered inappropriate.  But neither of these cases addresses whether the necessity of seeking damages in a real-estate action can serve to take the contract out of the operation of the statute of frauds under the part-performance doctrine.

[9]  We also find Grant's argument that Lehtinen ratified the 1997 memorandum unpersuasive.  The mere endorsement of Grant's rent checks does not give this court any evidence as to the actual terms of the 1997 contract or whether an agreement was ever reached on all of the alleged terms of that agreement.  We conclude that acceptance of a contract's benefits must be more obvious than simple check endorsement to constitute ratification.

[10] Lehtinen-SDMTK also claims that, under Minn. R. Civ. P. 8.01, if any amount less than $50,000 is alleged as unliquidated damages, that amount must be stated in the complaint.  But as we observed, Grant's complaint clearly alleged that she was due $20,000 as a result of Lehtinen-SDMTK's breach of the 2000 contract.  Furthermore, we note that Lehtinen-SDMTK did not raise this specific argument in the district court.  Because we generally refrain from addressing issues not argued and considered in the district court, we refuse to disturb the conclusion reached by the district court.  See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (holding that appellate courts must generally consider only issues that the record shows were presented and considered by the district court).   

[11]  The district court also found that because the church's title-insurance company had already reimbursed the church for most of the expenses in this matter, the court ordered that the church serve as a trustee for the insurance company and distribute to the company "the amount in excess of the Church's net losses."