In re the Estate of: Albert Garcia, Sr., Decedent

This opinion will be unpublished and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
A17-0016

In re the Estate of:
Albert Garcia, Sr., Decedent

Filed October 9, 2017
Appeal dismissed
Ross, Judge

Hennepin County District Court
File No. 27-PA-PR-08-79

John G. Westrick, Westrick & McDowall-Nix, PLLP, St. Paul, Minnesota; and

Samuel A. Savage, Savage Law, LLC, Minneapolis, Minnesota (for appellants)

Luther M. Amundson, J. Noble Simpson, Maser, Amundson, Boggio & Hendricks, P.A.,
Richfield, Minnesota (for respondent)

Considered and decided by Ross, Presiding Judge; Schellhas, Judge; and J. Smith,
Judge.
∗
U N P U B L I S H E D O P I N I O N
ROSS, Judge
Respondent Alfred Garcia held an undisputed 50% ownership interest in a
residential property. Decedent Albert Garcia Sr.’s heirs, appellants here, disputed
ownership of the remaining 50% interest in probate court. On r espondent’s petition, the

∗ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
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district court ordered the property sold and permitted sale costs to be deducted from the
gross sale proceeds. Appellants argue that the district court erred by ordering the sale before
determining final ownership interests and by allowing sale costs to be deducted from the
decedent’s potential interest despite the possible applicability of a homestead exemption.
The parties stipulated to dismissing the first issue and proceeded to oral argument on the
sale-costs issue. Because the district court has not determined final ownership interests or
whether the property was decedent’s homestead, the sale-costs issue presents no justiciable
controversy for our review. We therefore dismiss the appeal.
FACTS
Albert Garcia Sr. died intestate in 2005, and the probate court awarded appellant
heirs 1/4 interests in his estate. Decedent’s brother, respondent Alfred Garcia, challenged
decedent’s ownership interest in the property, a residential home. Respondent owns an
undisputed 50% interest in the property. Appellants claimed that the decedent owned the
remaining 50% interest, which passed to them in shares. Respondent claimed ownership of
that same 50% interest (for an undivided 100% ownership interest).
Respondent petitioned to sell the property on April 20, 2016. In August 2016 the
district court held a hearing at which appellants argued, “[W]e just want to be sure that any
cost of sale or whatnot that come[s] out of this, if it turns out that this was [ decedent’s]
homestead, as we continue to assert it was, that none of the costs of sale can come out.”
The district court found that respondent held an undisputed 50% interest in the
property, that the property could not be partitioned or divided, that respondent continued
incurring costs relating to the property, and that sale was “in the best interest of this Estate
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and the interested parties hereto, and is both necessary and expedient.” It ordered
respondent to prepare and sell the property. It also ordered, “ Realtor fees, closing costs,
real estate taxes, and other usual sale costs of a seller shall be allowed to be deducted from
the gross sale proceeds in order to accomplish the sale of the Property.”
Appellants challenged the district court’s order, arguing that the district court erred
by granting respondent’s petition to sell the property and by allowing sale costs to be
deducted from the gross in this court.
D E C I S I O N
The district court ordered the property sold before determining ownership of the
contested 50% interest, and it ordered the sale costs to be deducted from the gross sale
proceeds. Following the stipulated partial dismissal, appellants’ only argument on appeal
is that the district court abused its discretion by permitting sale costs to be deducted because
the homestead exception would apply if the ownership dispute was resolved in their favor.
We ordinarily review a district court’s division of assets in partition proceedings for an
abuse of discretion. See Glenwood Inv. Props., L.L.C., v. Carroll A. Britton Family Tr.,
765 N.W.2d 112, 117 (Minn. App. 2009). But respondent contends that we should dismiss
the appeal because the case lacks any justiciable controversy. Respondent is correct.
“The existence of a justiciable controversy is prerequisite to adjudication. The
judicial function does not comprehend the giving of advisory opinions. No controversy is
presented, absent a genuine conflict in the tangible interests of opposing litigants.” Izaak
Walton League of Am. Endowment, Inc. v. State, Dept. of Nat. Res., 312 Minn. 587, 589,
252 N.W.2d 852, 854 (1977). The existence of a justiciable controversy is essential to the
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exercise of our appellate jurisdiction, and the issue of justiciability may be raised at any
time. See In re Guardianship of Tschumy , 853 N.W.2d 728, 733 –34 (Minn. 2014). We
review justiciability issues de novo. McCaughtry v. City of Red Win g, 808 N.W.2d 331,
337 (Minn. 2011).
Appellants premise their argument on Minnesota Statutes section 524.2 -402(c)
(2016), which provides, “If the homestead passes by descent . . . to the spouse or decedent’s
descendants . . . it is exempt from all debts wh ich were not valid charges on it at the time
of decedent’s death . . . .” Their argument is essentially this: if the district court determines
that decedent owned a 50% interest in the property, and if the district court determines that
the property was decedent’s homestead, and if the district court decides that the homestead
exemption applies, then the district court’s costs decision was improper.
On the record before us, the district court made none of th ese three contingent
determinations. Without any determination of ownership, any injury to appellants is purely
hypothetical. Appellants do not dispute this, conceding the point at oral argument. “Issues
which have no existence other than in the realm of future possibility are purely hypothetical
and are not justiciable.” Federated Mut. Ins. Co. v. Litchfield Precision Components, Inc.,
456 N.W.2d 434, 439 (Minn. 1990) (quotation omitted) . Because the district court has
made none of the contingent determinations, our opinion on the merits would be advisory
only. We will not offer an advisory opinion.
Appeal dismissed.