*1 acts or DECISION negligence relates to gation of 9, University August on by the omissions AFFIRMED. Copper-7 IUD was the date Dalton, of her cause inserted. Under she sustained dam- accrued when
action resulting negligence.
age court that supreme stated
Id. at 429. damage and was sustained
Offerdahl January 1979. Her it on
aware of accrued on that date. We cause of action Marriage Sylvia of N. In re the reference in supreme court’s view Of- Petitioner, ERICKSON, damage by the knowledge of ferdahl Appellant, change the dicta that does not patient and reaffirmed established in Dalton law v. in Johnson. ERICKSON, Respondent. H. John Next, argues that we St. Aubin No. C1-88-1028. discovery here. Our adopt the rule should unique. appellate level is function at Appeals of Minnesota. Court of of The introduction to the Minnesota Court 17, 1989. Jan. states: Appeals Internal Rules interme- Appeals of is an The Court primarily de- appellate
diate court. correcting rather than
cisional and error pri- legislative or doctrinal court. Its
a the correction of error
mary function is legal Its
by application principles. law, to it and to
task is to find the state Only there
apply it to the facts. when statutory judicial precedents
are no Appeals the Court of make
follow will
new law. apply in con- discovery
If the rule is to Minnesota,
tinuing treatment cases regard should expression
clear supreme court. It is not our
set out nearly years of estab-
role to abolish precedent. The Minnesota judicial
lished so,
Supreme may elect to do but Court
date it has not. for the Finally, St. Aubin raises appeal issue of denial of time on
first process rights. Constitutional is
his due for the first time on may not be raised
sues Human
appeal. St. Paul Citizens for Paul, 289 City Council St.
Rights (Minn.1979). St. Aubin N.W.2d Ellis was first notified of St.
concedes that issues intent to raise constitutional
Aubin’s appeal. of the case for this
in the statement this issue
Accordingly, will not address we this court. properly
as it is not before
OPINION LESLIE, Judge. R. DAVID appeals from the Sylvia N. Erickson ordering a sale of the homestead judgment upon fees a find- payment and a ing her conduct was violation of decree. provision in the dissolution part. part affirm in and reverse
FACTS and John H. Erick- by judgment son were divorced and decree for marriage dissolution of entered on Oc- incorporated tober 1987. This decree parties. terms of a of the Re- self-employed is a carpenter. Ap- pellant, although suffering multiple sclerosis, works as a nurse’s aide at a nurs- ing care, physical home. has custody She 16-year-old and control of their son. provides part: The decree graduates After the child IV. or is emancipated upon otherwise the re Petitioner, marriage parties shall place their current residence for sale realtors, with one or more licensed and shall sell the same at fair market value. party compelled agree Neither shall be to a sale at less than market value unless both to such a sale. In the event is, opinion that such sale of one of parties, rejected by despite offer, parties shall hire reasonable appraiser, a certified whose determina tion of whether the house and lot are being for fair market value shall sold final, and if it is determined that an offer upon and secure is made reasonable value, terms for the fair market thereupon and lot shall be sold.*** house « [*] [*] [*] [*] [*] London, Mack, petition- for until the time the Up New to and John E. VI. er, sold in accordance appellant. and lot are house the Petitioner paragraphs, previous Gustafson, Ann & Wae- M. Gustafson in the afore- right to live have the shall chter, Willmar, respondent. re- Petitioner shall be home. The said house to- pay the sponsible to Heard, and decided considered utility bills. gether with the P.J., NORTON, FLEMING and and up resi- party third that no LESLIE, JJ.* * Acting judge Appeals by ap- of the Court of Const, pointment pursuant to Minn. art. 2.§ requiring in the homestead of the the dissolution decree that no dence buys the party or the other third take residence in the home- to the of first other out stead? rented in refusal herein. If the land is 2. Did the trial court abuse its discre- *3 part, in the shall have whole or ordering appellant pay attorney tion in proceeds equally
the to share the fees? deducting of rental and after first costs board. ANALYSIS pay Respondent The shall the VII. appeal judgment 1. On from a per month toward the sum of $175.00 where there has been no motion for new payment house and associated bills. trial, only questions the for are review in This shall be lieu of maintenance sum findings whether the evidence sustains the long for so as Petition- and shall continue findings of fact and whether such sustain It further occupies er the home. is judgment. the conclusions of law and the in the Petitioner moves that event 454, Larson, Gruenhagen v. 310 Minn. home, required payments from the the 565, (1976). 246 N.W.2d 569 paragraph under this shall continue for home, necessary sell the long so as is finding The trial court’s that Cole may placed immediately the home and up has taken residence in the Erickson upon proper- of the for sale the vacation clearly supported by homestead is the evi ty by however, Petitioner. Appellant argues, dence. it that improper was for the court to order a sale 1988, Quentin February in Sometime upon finding of the home a violation of into the Erickson homestead. Cole moved paragraph argues ofVI the decree. She He and his son moved into the house and provisions para that the sale in set forth furniture, horses, brought their some and a triggered only IV are “after the approximately onto the 10- horse trailer graduates child or is otherwise eman property. point, respondent acre At this cipated upon remarriage of Petition began monthly payments, to withhold his 1 er.” contending in that Cole’s residence paragraph homestead was a violation of provisions regarding The here the occu- payments of the decree. He did not make pancy of the homestead were entered into April April, appel- in and In March stipulation by appel- to a drafted brought requesting lant that re- motion attorney. This lant’s court has stated that contempt in be held for failure to fixing respective stipulation when a payments. Respondent make these rights obligations parties is and of the brought requesting a counter-motion sale award, central to the the trial court re- attorney of the homestead and fees. original viewing the order or decree important it should view as an element The trial court determined that Cole’s represents parties’ it volun- because presence “taking constituted home tary acquiescence equitable in an settle- up meaning residence” within the of the Although ment. the trial court is vested decree and ordered a sale of the home- with broad discretion to determine the appel- stead. The trial court also ordered modification, propriety sug- of a we have pay attorney lant to fees in the sum of gested that trial courts exercise that dis- $300. carefully only reluctantly cretion and al- stipulation governing ISSUES ter the terms of a maintenance. trial 1. Did the court abuse its discre- ordering Angelos Angelos, tion in sale of the homestead as a v. 372 N.W.2d remedy provision (Minn.Ct.App.1985), pet. in for the violation of rev. denied for unnecessary argues provision that also that this is it to decide the case on contrary public policy. Although there is ground. support argument, in case law that we find 24, 1985) dent, course, (Minn. (citing Claybaugh sought should have relief Oct. (Minn. in Claybaugh, withholding 312 N.W.2d the courts before his month- 1977)). ly payments toward the house and Nevertheless, associated bills. we find provided that no un- here good in faith believed that resident would take residence related request he was entitled to a sale of the party bought the the home unless one oth- upon learning homestead of Cole’s resi- buy-out er out. No such occurred. dence the homestead and that withhold- provide for Paragraph any VI fails to other ing monthly payments appropri- anwas consequence in the of a specific event viola- response. ate find that the award of a provision tion of clause. We find this modest fees $300 is reasonable is unenforceable. and not an abuse of the trial court’s broad occupancy Modification of the of the *4 discretion. only homestead “should be allowed when party seeking the modification can show a change in Ange
material
circumstances.”
DECISION
los,
the house and moved furniture and FLEMING, J., dissents. property. change horses to the There is no FLEMING, Judge (dissenting). justify of circumstances here which would allowing respondent to seek a modification respectfully I dissent. occupancy in the of the homestead. concludes, majority The appellant’s The trial court’s solution for stipulation provided here that no [t]he provisions paragraph violation of the VI up unrelated resident would take resi- is under the unconscionable circumstances dence in party the home unless one per of this case. She now receives $175 bought party out. No such month toward the house in lieu of buy-out Paragraph occurred. VI fails to Also, parties’ maintenance. son is provide any specific other conse- emancipation. close to The trial court’s quence in the event of a violation of this remedy appellant would force and her son provision clause. find this is unen- certainty place to out no move of a to forceable. live while the son finishes school. Further- I cannot that the clause is unen- more, she lose would maintenance for those stipulation provided, forceable. The years. In two this situation where there is consequence para- party no for the violation of that no third suggestion any and there is no of residence in the homestead of the assets, wasting parties of we hold that the trial party or the other ordering buys court erred the sale of the right the other out to the homestead. of first refusal herein. Although improp right the trial court The of refusal mentioned in first homestead,
erly permitted party, ordered a sale of the we clause one homestead, affirm the award of fees to re event a sale to of of “ * * * Here, spondent. incorporated any acceptable the decree meet the terms of (30) by appel thirty days the terms of a drafted offer within the finaliza- Moreover, attorney. lant’s was tion of that offer.” It seems clear to me represented by stipu not counsel when the that no third to to was be allowed signed. Respon- lation was drafted and reside in the homestead absent a sale of party’s subject the homestead to the other first refusal. Mary KARNES, Respondent, Nan binding
Stipulations are contracts. (Minn. Lamb, Lamb v. 404 N.W.2d MILO BEAUTY AND BARBER SUP- contract, Ct.App.1987). construing In COMPANY, INC., PLY d/b/a this court should allow the intent of the Corporation, al., Appellants. Milo et parties prevail. Alpha Turner v. Phi No. C5-88-2537. (Minn. House, Sorority 276 N.W.2d 1979). case, present parties Appeals In Court of of Minnesota. prohibit intended third from tak Jan. unless, ing up residence the homestead homestead, selling in the course of one
party bought out the other. Cole, appellant
Had married the home- By allowing him
stead would be sold. in,
move she is now able to circumvent
parties’ agreement agreement drafted —an by appellant’s signed by counsel and re- *5 unrepresented. I while he was majority’s
do not conclusion provide
that the failed to a rem-
edy Instead, for this situation. I believe stipulation required exactly what
trial court ordered: the sale of the home-
stead, subject appellant’s contractual
right buy respondent’s out interest
the sale and Cole to remain. allow Even
appellant’s counsel states in his brief to court, reading literal of Para- “[A] only indicates that no third residence the homestead party buys If out.” contract,
the intent of the to this
stated who drafted the effect,
agreement, given is to be this court
should affirm the trial court’s decision or-
dering the sale of the homestead and allow
appellant buy to exercise her out
respondent.