Kristin M. Schumacher, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1224

Kristin M. Schumacher,
Respondent,

Marian V. Swanson, intervenor,
Respondent,

vs.

Terrence K. Swanson,
Appellant,

and Terrence K. Swanson, counterclaimant,
Appellant,

vs.

Kristin M. Schumacher, et al.,
Respondents.

Filed April 24, 2017
Affirmed
Bratvold, Judge

St. Louis County District Court
File No. 38-CV-15-152 and 69VI-CV-15-206

Colleen A. Kosluchar, Trenti Law Firm, Virginia, Minnesota (for respondents)

Dawn C. Van Tassel, Van Tassel Law Firm, LLC, Minneapolis, Minnesota; and

Karen R. Cole, Law Office of Karen Cole, St. Paul, Minnesota (for appellant)

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Considered and decided by Schellhas, Presiding Judge; Kirk, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
BRATVOLD, Judge
Respondent-sister brought partition actions relating to two properties that she and
appellant-brother owned as tenants in common subject to re spondent-mother’s life estate.
The partition actions were conso lidated and a ppellant filed counterclaims alleging
malicious prosecution, abuse of process, and injury to inheritance and requested a jury trial.
The district court denied appellant’s jury-trial request based on its determination that
appellant waived his right to a jury trial by bringing his c ounterclaims in an equitable
action. After a court trial on the partition actions and the counterclaims, the district court
ordered partition by sale and denied appellant’s counterclaims. Appellant argues t hat his
counterclaims were legal in nature and he was entitled to a jury trial, partition should not
have been granted because respondents requested equitable relief with unclean hands, and
his counterclaims should not have been denied. We affirm.
FACTS
Respondent Marian Swanson and her late husband (collectively, the Swansons)
owned two properties in fee simple as joint tenants: a family home in Babbitt (the house)
and a cabin near Ely (the cabin). The house is a “well-maintained one-story, three-bedroom,
two-bath home on a single lot ” and was valued at $68,900 in 2016. The cabin is a “two-
bedroom seasonal log cabin built in the 1930 s, situated on about an acre of land with
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electricity and minimal heating,” but with no septic system, toilets, or drinking water. It was
valued at $276,600 in 2016.
The Swansons raised four children to adulthood , including appellant Terrence
Swanson (Terry) and respondent Kristin Schumacher (Kristin). In January 1996, the
Swansons retained a real estate attorney and executed quitclaim deeds, which conveyed the
house and cabin to Terry and Kristin, as tenants in common, reserving a life -estate interest
for the Swansons. The Swansons lived in the house and used the cabin until 2007, when
Marian’s husband died. Marian continued to live in the house after her husband’s death and
was living there at the time this case was tried. Marian also used and maintained the cabin,
with the help of Terry and Kristin.
At some point after her husband’s death, Maria n contacted the same attorney who
had prepared the quitclaim deed s and asked him to prepare a new will. Marian explained
that she was concerned about her finances and wanted to sell the house and the cabin . The
attorney advised Marian that in order to convey full title to a buyer, she would need Terry
and Kristin to convey their interests to her. In November 2011 and January 2012 , Kristin
and her then-husband signed deeds conveying their inter est in the properties to Marian.
Terry refused to convey his interest to Marian. In August 2012 , Kristin’s marriage was
dissolved by decree, a fact that Terry relies on for some of his claims.
In January 2013, Marian initiated partition actions relating to each property
(Swanson I). The cases were consolidated and t he district court issued a partition order,
which Terry appealed. T his court reversed, holding that Marian could not maintain the
partition actions because her interest was not concurrent with Terry’s interest. See Swanson
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v. Swanson, 856 N.W.2d 705 (Minn. App. 2014). While the appeal was pending, Marian
executed transfer-on-death deeds conveying her interest in both properties to Kristin. After
this court’s decision, Marian revoked the transfer-on-death deeds and re-conveyed her one-
half interest in each property to Kristin, again reserving a life estate for herself.
In March 2015, Kristin brought the present partition actions, which the district court
consolidated. Terry asserted several affirmative defenses, including that the partition actions
were barred by the doctrine of unclean hands. He also asserted three counterclaims against
Kristin and Marian as a third -party defendant: (1) a malicious-prosecution claim against
Marian, (2) an abuse -of-process claim against Kristin and Marian, and (3) a claim of
interference with an inheritance against Kristin and Marian. Marian intervened under Minn.
R. Civ. P. 24.01.
Approximately one month before the scheduled trial, Terry filed a jury-trial demand
under Minn. R. Civ. P. 38.01 and Kristin and Marian moved to strike the demand. The
district court granted the motion to strike, concluding that Terry had waived his right to a
jury trial on the counterclaims by raising them in an equitable action.
A court trial was held in April 2016. Kristin, Terry, Marian, the referee from Swanson
I, Marian’s real estate attorney, and Kristin’s divorce attorney testified at the trial. In its
written findings and order, t he district court concluded that Terry and Kristin each had an
undivided one -half rema inder interest in each property as tenants i n common subject to
Marian’s life estate, that Kristi n and Terry’s interests were concurrent, and that a partition
of the properties was appropriate under Minn. Stat. § § 558.01 and 558 .04 (2016). The
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district court determined that the properties could not be physically divided and ordered
partition by sale supervised by a referee.
The district court also denied Terry’s counterclaims. It determined that Terry failed
to prove malicious intent by Marian, defeating Terry’s malicious-prosecution claim, finding
that Marian “attempted for 18 months to negotiate with [Terry] for a ‘friendly’ partition and
that [she] followed the advice of her attorney ” when she brought Swanson I. Likewise, it
determined Marian and Kristin’s conveyances in 2011 and 2014 were “done in good faith”
and there was no improp er purpose supporting the abuse -of-process claim. Finally, the
district court denied Terry’s counterclaim for injury to inheritance, concluding that Terry
failed to prove that either Kristin or Marian committed waste. This appeal follows.
D E C I S I O N
I. The district court did not err in denying Terry’s demand for a jury trial.
Whether a party has a right to a jury trial is a question of law, which we review de
novo. Abraham v. County of Hennepin, 639 N.W.2d 342, 348 (Minn. 2002). Denial of the
right to a jury trial is reversible error. Olson v. Aretz , 346 N.W.2d 178, 181 (Minn. App.
1984).
The Minnesota Constitution states that “[t]he right of trial by jury shall remain
inviolate, and shall extend to all cases at law without regard to the amount in controversy.”
Minn. Const. Art. I, § 4. The Minnesota Constitution “neither takes from [n]or adds to the
[jury-trial] right as it previously existed” in the Territory of Minnesota at the time o f the
constitution’s adoption. Olson v. Synergistic Techs. Bus. Sys., Inc ., 628 N.W.2d 142, 148
(Minn. 2001) ( quoting Whallon v. Bancroft , 4 Minn. 109 , 111, 4 Gil. 70, 74 (1860)). In
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determining whether a litigant has a right to a jury trial , “[w]e focus not on wh ether the
exact cause of action existed, but on the type of action—whether the claim is a n action at
law, for which the Constitution guarantees a right to a jury trial, or an action in equity, for
which there is no constitutional guarantee of a jury trial.” Schmitz v. U.S. Steel Corp., 852
N.W.2d 669, 673 (Minn. 2014). When determining whether an action is equitable or legal,
our inquiry is two-fold: we first look at the substance of the claim, including the elements
of the claim and the pleading in the instant case; we then look at the “nature of the relief
sought.” Abraham, 639 N.W.2d at 349–53.
The parties do not dispute that the partition action is equitable and also agree that at
least two of Terry’s counterclaims are legal in nature, meaning that Terry had a right to a
jury trial for the legal claims .1 We must therefore determine whether the district court
correctly concluded that “when a defendant interposes a counterclaim alleging claims
arising in law into an action that sounds in equity the defendant loses any right he had to a
jury trial on that counterclaim.” The district court relied on Johnson Serv. Co. v. Kruse ,
which arose from a mechanic’s lien foreclosure against defendant’s property. 121 Minn. 28,
29, 140 N.W. 118, 118 (1913). 2 The Kruse defendant admitted plaintiff had completed the

1 Terry argues that the injury -to-inheritance claim is also legal in nature because the
elements of the claim are similar to negligence or property damage claims, both of which
are legal claims. Kristin and Marian respond that an injury -to-inheritance claim is similar
to a real estate claim, which is equitable in nature. Because we conclude that Terry would
not be entitled to a jury trial even if his claim is legal in nature, we need not decide this
issue.

2 It appears that this opinion was one of several supreme court opinions that flowed from
disputes regarding the same construction project and therefore have the same or similar
names. Although the district court cited directly to 121 Minn. 90, 140 N.W. 339 (1913), it
7
work but asserted a counterclaim that she had been “induced to execute the contract through
false and fraudulent representations” that the newly installed temperature regulation system
would run automatically. Id. at 29 –30, 140 N.W. at 118. The district court denied the
defendant’s jury -trial demand. Id. at 30, 140 N.W. at 118. On appeal, the Minnesota
Supreme Court affirmed the district court’s decision due to the “settled rule that in an
equitable action a defendant, interposing a counterclaim alleging a legal cause of action, is
not thereby entitled as a matter of right to a jury trial thereof.” Id. at 33, 140 N.W. at 120;
see also Gunhus, Grinnell v. Engelstad, 413 N.W.2d 148, 152 (Minn. App. 1987) (applying
Kruse), review denied (Minn. Nov. 24, 1987).
Terry argues t hat in Onvoy, Inc. v. ALLETE, Inc. , the Minnesota Supreme Court
implicitly overruled Kruse when it followed federal precedent regarding the application of
jury findings to equitable claims. 736 N.W.2d 611, 617 (Minn. 2007). In Onvoy, the plaintiff
alleged both equitable and legal claims, and all of the claims were tried together. Id. at 614.
The supreme court held that a jury’s findings of fact on legal claims are binding on the court
in its resolution of equitable claims. Id. at 617. In its analysis, the supreme court stated that
the federal and state jury-trial rights are “essentially the same” and cited Beacon Theatres,
Inc. v. Westover, 359 U.S. 500 , 79 S. Ct. 948 (1959), which states that , in federal court, a
defendant has a right to a jury trial on com pulsory counterclaims brought in an equitable

appears that the reasoning it relied on lies in 121 Minn. 28, 140 N.W. 118 (1913) , which
directly addresses the jury-trial issue. Additionally, although some sources state the title as
Behrens v. Kruse , we use the title listed in the Minnesota Reports, Johnson Serv. Co. v.
Kruse.
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action. Id. at 508–10, 79 S. Ct. at 955-56; see also Onvoy, 736 N.W.2d at 616-17 (discussing
Beacon Theatres).
We conclude that Onvoy’s favorable citation to Beacon Theatres did not overrule
Kruse. Onvoy did not analyze or consider whether a defendant waives jury -trial rights b y
bringing a legal counterclaim in an equitable action because the Onvoy defendant did not
bring any counterclaims; nor does Onvoy cite to, discuss, or criticize Kruse. We conclude
that Kruse remains good law. See Minn. State Patrol Troopers Ass’n v. State, Dep’t of Pub.
Safety, 437 N.W.2d 670, 676 (Minn. App. 1989) (noting that this court will not make “a
dramatic change in the interpretation of the Minnesota Constitution” in the absence of an
explicit ruling from the supreme court) (quotation omitted), review denied (Minn. Mar. 28,
1989).3 Accordingly, we affirm the district court’s decision to strike Terry’s jury -trial
demand because he waived his jury-trial rights by filing legal counterclaims in an equitable
action.
II. The district court did not abuse its discretion in ordering partition.
An order for partition is equitable relief, which we review for abuse of discretion.
Nadeau v. County of Ramsey , 277 N.W.2d 520, 524 (Minn. 1979 ); see also Swogger v.

3 We note that Kruse was decided before the promulgation of the Minnesota Rules of Civil
Procedure, which requires litigants to bring some compulsory counterclaims. See Minn. R.
Civ. P. 13.01 (requiring a party to bring as a counterclaim any claim against “any opposing
party, if it arises out of the transaction that is the subject matter of the opposing party’s
claim and does not require . . . the presence of third parties over whom the court cannot
acquire jurisdiction”). While we recognize that our courts may someday need to clarify
how Kruse applies to compulsory counterclaims, we need not reach that issue here because
the parties did not brief or argue it to this court. See McKenzie v. State, 583 N.W.2d 744,
746 n.1 (Minn. 1998) (indicating that when an appellant “alludes to” an issue but “fails to
address [it] in the argument portion of his brief” we need not address it).
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Taylor, 243 Minn. 458, 461, 68 N.W.2d 376, 380 (1955). Questions of law that arise in an
equitable action are reviewed de novo. Drewitz v. Motorwerks, Inc., 867 N.W.2d 197, 204
n.2 (Minn. App. 2015), review denied (Minn. Sept. 15, 2015).
In Minnesota, a partition of real property may be sought where “two or more persons
are interested, as joint tenants or as tenants in common, in real property in which one or
more of them have an es tate of inheritance or for life or for years.” Minn. Stat. § 558.01.
Terry argues that Kristin is not a tenant in common because she and her then-husband did
not disclose or include their interest in the properties in their marital dissolution in August
2012 and this omission rendered invalid their November 2011 conveyance to Marian. Terry
cites a statute governing transfer of property during dissolution. See Minn. Stat. § 518.58,
subd. 1a (2016) (forbidding a spouse from transferring property without the other spouse’s
consent while the dissolution is contemplated or pending).4
Terry’s argument is unavailing. Alt hough spouses involved in marital dissolution
proceedings have an affirmative duty to make a full and fair disclosure of their assets , the
order dissolving Kristin’s marriage was entered in August 2012, several months after she
and her then-husband jointly conveyed the properties to Marian in November 2011 and
January 2012. Moreover, there is no record evidence that Kristin’s then-husband did not
consent to the transfer and T erry cites no authority suggesting that Kristin’s failure to
inform the family court of a consensual joint transfer invalidates the transfer. Kristin and

4 Terry also cites case law. See, e.g., Searles v. Searles, 420 N.W.2d 581, 582 (Minn. 1988)
(holding that divorce did not terminate a wife’s interest i n property and she had standi ng
to bring a partition action). None of the cases analyze a consensual joint transfer of property
during marriage dissolution or hold that such a consensual joint transfer is invalid.
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her then-husband’s conveyances to Marian in November 2011 and January 2012
extinguished any inchoate interest Kristin’s then-husband may have had in the properties.
After Marian’s December 2014 transfer to Kristin, Kristin had a one-half remainder
interest in the house and the cabin, and Terry had a one-half remainder interest in the house
and the cabin. They were tenants in common with equal interests subject to Marian’s life
estate. The district court did not err i n determining that Terry and Kristin were tenants in
common.
Terry next argues that the district court erred in denying his defense of unclean
hands. The equitable doctrine of unclean hands states that “he who seeks equity must do
equity, and he who comes into equity must come with clean hands.” Hruska v. Chandler
Assocs., Inc., 372 N.W.2d 709, 715 (Minn. 1985) (quotation omitted). We review for abuse
of discretion a district court’s decision to grant equitable relief and reject an unclean-hands
defense. See Brown v. Lee, 859 N.W.2d 836, 844 (Minn. App. 2015), review denied (Minn.
May 19, 2015).
Terry offers two instances to support his unclean -hands defense. First, he claims
that Kristin committed fraud when she conveyed the properties to Marian in November
2011 because, according to Terry, Kristin transferred the properties to block action by her
then-husband’s creditors. The district court heard the evidence and rejected Terry’s claim,
finding that both Kristin and Marian made their transfers in good faith. The record supports
the district court’s finding. Kristi n and Marian sought legal advice about transferring the
properties. Kristin and Marian also followed their attorney’s advice throughout the relevant
property transfers and their attorneys testified to that effect at the court trial.
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Second, Terry claims that the doctrine of unclean hands applies because the
“financial hardship and the need for Marian to relocate to Virginia from Babbitt [is] belied
by the evidence, ” alleging that Kristin recently purchased a home. It is unclear how
Kristin’s purchase affected Marian’s testimony that she seeks to sell the properties to gain
financial stability . Moreover, the record contains no evidence establishing Kristin’s
purchase.5 Accordingly, we conclude that t he district court did not abuse its discretion
when it rejected Terry’s unclean-hands defense and granted equitable relief in the form of
an order for partition.
III. The district court did not err in denying Terry’s counterclaims.
Terry argues that the district court erred in dismissing each of his three
counterclaims. We review a district court’s factual findings for clear error and it s legal
conclusions de novo. In re Distrib. of Attorney’s Fees between Stowman Law Firm, P.A., &
Lori Peterson Law Firm , 870 N.W.2d 755, 759 (Minn. 2015). Although the district court
purported to “dismiss” each counterclaim, the di strict court decided each counterclaim on
the merits and denied relief. We will consider the denial of each counterclaim in turn.
To prove a malicious prosecution action, a plaintiff must prove:

5 Terry claims that he asked the district court to take judicial notice of Kristin’s real estate
purchase and the court denied his request. The appellate record does not include any
motions or transcripts relating to Terry’s request to take judicial notice, nor any evidence
about the house. We are unable to consider matters outside the appellate record. Plowman
v. Copeland, Buhl & Co. , 261 N.W.2d 581, 583 (Minn. 1977). Accordingly, we will not
consider Terry’s request to take judicial notice of Kristin’s newly purchased home, because
it is outside the record and the purchase cannot be established by a source “whose accuracy
cannot reasonably be questioned .” See Matter of Zemple , 489 N.W.2d 818, 819 (Minn.
App. 1992) (quotation omitted) (stating standard for taking judicial notice).
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(1) the suit must be brought without probable cause and with
no reasonable ground on which to base a belief that the plaintiff
would ultimately prevail on the merits; (2) the suit must be
instituted and prosecuted with malicious intent; and (3) the suit
must ultimately terminate in favor of the defendant.

Jordan v. Lamb , 392 N.W. 2d 607, 609 (Minn. App. 1986) (quotation omitted), review
denied (Minn. Oct. 29, 1986) . The district court dismissed Terry’s malicious-prosecution
claim with prejudice, after concluding that the legal issue decided in Swanson I was an issue
of first impression, and after finding that Marian followed her attorney’s advice and
reasonably believed that she would prevail on the merits , even though she failed to prevail
in Swanson I.
Terry argues that this court’s holding in Swanson I was predictable and Marian could
not have reasonably believed that sh e would prevail on the merits. To defeat a malicious
prosecution claim , a party need only establish a reasonable belief that she had probable
cause to file a claim. Dunham v. Roer, 708 N.W.2d 552, 569 (Minn. App. 2006), review
denied (Minn. Mar. 28, 2006). Moreover, the district court also found that Marian relied on
her attorney’s advice . Minnesota courts recognize an advice-of-counsel defense where a
litigant “fully disclosed all material fa cts to the attorney, received advice that his or her
conduct was legal, and acted in good -faith reliance on that advice.” Sysdyne Corp. v.
Rousslang, 860 N.W.2d 347, 354 (Minn. 2015) (citing Miller v. Am. Nat’l Bank in Little
Falls, 216 Minn. 19, 23, 11 N.W.2d 655, 657 (1943)). The district court did not err when it
denied Terry’s malicious-prosecution claim.
We next consider the district court’s denial of Terry’s abuse-of-process claim; the
“essential elements” include: “the existence of an ulterior purp ose and the act of using the
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process to accomplish a result not within the scope of the pro ceedings in which it was
issued.” Dunham, 708 N.W.2d at 571. An abuse-of-process claim requires a determination
of whether the legal process “was used to accomplish an unlawful end for which it was not
designed or intended, or to compel a party to do a collateral act which he is not legally
required to do.” Kittler & Hedelson v. Sheehan Props. , Inc., 295 Minn. 232, 239 , 203
N.W.2d 835, 840 (1973).
The district court denied Terry’s abuse-of-process claim because it concluded that
the “evidence shows extensive negotiation to attempt to sell both properties prior to
initiating litigation seeking the same.” Terry argues that Marian was untruthful when she
claimed that she wanted to partition the properties to increase her financial stability and her
ulterior motive was “to inflict financial harm and emotional distress upon Terry.”
The district court’s finding that Kristin and Marian did not have an improper purpose
in seeking partition has ample support in the record , which establishes that Marian sought
partition because the properties were too much work for her, she wanted to move, and she
needed financial stability. The parties sought to negotiate a friendly partition for over a year
before filing the first partition action. While Marian testified that she and Terry “don’t have
a friendly relationship,” no evidence establishes that either Kristin or Marian filed these
partition actions to harm Terry. Accordingly, we conclude that the district court did not err
in denying Terry’s abuse-of-process claim.
Finally, Terry challenges the district court’s denial of his injury-to-inheritance claim
under Minn. Stat. § 557.05 (2016), which provides:
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A person seized of an estate in remainder or reversion may
maintain a civil action for any injury done to the inheritance,
notwithstanding an intervening estate for life or years.

The district court determined that Terry failed to prove that Marian committed waste or
Kristin created a cloud on the property title.
Regarding Terry’s theory of waste, t he district court recognized that Terry
enumerated various concerns about painting the logs on the cabin, failing to install a septic
system, failing to update the electrical system, and failing to repave the garage fl oor or
replace the garage walls. The district court also recognized that evidence established “[b]oth
properties can be sold subject to currently existing conditions.”
Terry argues that Marian committed waste because the cabin property was not kept
“up to code with respect to the septic system, electrical and heating, and the like.” Terry is
correct that Marian, as a life tenant, has a duty not to commi t waste on the properties.
Beliveau v. Beliveau, 217 Minn. 235, 242, 14 N.W.2d 360, 364 (1944) (holding a life tenant
is obligated “not to permit waste, to make necessary and reasonable repairs, . . . and not to
permit noxious weeds to infest the lands”). However, a life tenant has no duty to improve
the property. Rendahl v. Hall, 160 Minn. 502, 505, 200 N.W. 744, 745 (1924). This means
Marian was not obligated to install expensive septic and electrical systems on a “rustic”
property that is valued mainly for its lake access.
Terry testified he and his family have maintained the properties; but Marian also
testified that she and Kristi n have performed maintenance at the properties. Moreover,
Terry failed to produce any evidence regarding the value of either property before or after
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the alleged waste occurred to prove that his inheritance had been injured. Accordingly, the
district court did not err when it denied Terry’s injury-to-inheritance claim based on waste.
Terry also contends that there is a “threat of clouded title ” that will hinder sale of
the properties. The only “threat” identified by Terry is Kristin and her then-husband’s
transfer to Marian in 2011 and 2012. As discussed above, Kristin’s then-husband conveyed
his inchoate interest to Marian and this conveyance extinguished any interest he may have
had in the property. Further, Terry’s argument that the partition actions “have left a paper
trail that will deter potential future purchasers” was never raised below. We do not consider
matters not argued and considered in the district court. Thiele v. Stich, 425 N.W.2d 580,
582 (Minn. 1988). Accordingly, the district court did not err when it denied Terry’s injury-
to-inheritance claim.
Affirmed.