Robert F. Goerdt, et al., Respondents,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-1847

Robert F. Goerdt, et al.,
Respondents,

vs.

Lucille Goerdt, et al.,
Appellants.

Filed August 5, 2019
Affirmed
Schellhas, Judge

Otter Tail County District Court
File No. 56-CV-15-2107

Dennis W. Hagstrom, Law Office of Dennis W. Hagstrom, Fergus Falls, Minnesota (for
respondents)

Nathan L. Seeger, Fergus Falls, Minnesota (for appellants)

Considered and decided by Jesson, Presiding Judge; Schellhas, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellants challeng e a district court’s enforcement of the terms of a settlement
agreement involving their adverse claims to real estate. We affirm.

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FACTS
Appellant Lucille Goerdt and her husband, Lorain Goerdt, owned a 317-acre farm
in Section 4, Township 130, Range 44, in Grant County. 1 On December 29, 1993, Lucille
and Lorain Goerdt created the Goerdt Revocable Living Trust (the trust) and, in 2009,
named their son, respondent /cross-appellant Robert Goerdt, as trustee, and placed the ir
Section 4 land into the trust. After Lorain died in March 2013, Lucille contacted an attorney
to assist her in selling the farm and to address her belief that Robert was engaged in “self-
dealing a nd pocketing funds of the trust .”2 Lucille then asked Robert to provide an
accounting of the trust and to step down as trustee . Robert refused, and Lucille sued him
in November 2013. The parties settled their dispute through a settlement agreement entered
in open court in December 2014.
Under the terms of the settlement agreement, Robert agreed to resign as trustee of
the Goerdt Revocable Living Trust and to forfeit any inheritance from the trust and
Lucille’s estate, and the trust agreed to transfer to Robert real estate located in Section 3,
Township 130, Range 44, in Grant County,3 and would give him an option to purchase the
Section 4 land.4 The district court accepted the settlement agreement as valid and binding.

1 Lucille Goerdt died on March 18, 2019. Appellants Kathleen Stoeser and Dennis Goerdt
are two of Lucille’s children; Jennifer Berg and Melissa Lu are two of her granddaughters
(collectively referred to as appellants), and are successors -in-interest to Lucille’s title to
the Section 4 land and this appeal.
2 We use the first names of individuals who share the same surname.
3 In the settlement agreement, the Section 3 land is referred to as “the contract for deed
land.”
4 The Section 3 land was the subject of another appeal, Goerdt v. Folsom, No. A17-1751
(Minn. App. July 2, 2018), review denied (Minn. Sept. 26, 2018), in which this court
3
Paragraph 20 of the sett lement agreement provides that “[t]his agreement shall become
effective upon [Robert] receiving quit claim deeds to the contract for deed property from
[appellants].” In accordance with the settlement agreement, Robert resigned as trustee, the
trust delivered a quit claim deed to the Section 3 land to Robert, and Robert recorded his
option to purchase the Section 4 land. On January 14, 2015, the court dismissed Lucille’s
suit with prejudice.
On January 26, 2015, the new trustee of Lucille’s trust conveyed the Section 4 land
from the trust to Lucille. On January 28 , a neighboring farmer, Brian Lacey, offered to
purchase the Section 4 land. On February 6, Lucille’s attorney sent Robert ’s attorney
written notice of Lucille’s intent to convey the Section 4 land to Lacey, stating that the
notice was “provided to trigger the ninety (90) days in which [Robert] must decide whether
he wishe[d] to exercise his option.” On April 30, Robert ’s attorney responded to the
February 6 l etter, stating that because the previous ly delivered quit claim deed to the
Section 3 land was unrecordable, the settlement agreement was “not yet effective,” and
“the notice contemplated” in the “February 6, 2015 letter was premature, and [could not]
be relied upon to trigger the applicable nin ety (90) day notice period, in light of the fact
that the settlement agreement [was] not yet effective.” Robert’s attorney also opined that
Robert’s resignation as trustee was not effective because the quit claim deed to the Section
3 land was unrecordable , and that the trust’s conveyance of the Section 4 land to Lucille
was therefore ineffective.

concluded that Ro bert and his wife, Debra Goerdt, were the fee -simple owners of the
Section 3 land.
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In July 2015, Robert and respondent/cross-appellant Debra (hereafter “the
Goerdts”) sued appellants, reiterating, in relevant part, the claims made by Robert’s
attorney in his response to the February 6 letter from Lucille’s attorney. In December, the
Goerdts’ attorney sent appellants’ attorney a copy of an amended complaint, nominated an
appraiser for the Section 4 land , and offer ed to settle the dispute. In January 2016,
appellants answer ed the amended complaint and counterclaim ed against the Goerdts .
Appellants twice moved for summary judgment, and the district court denied the motions
in August and December 2017.
Following a four-day court trial, the distri ct court issued findings of fact,
conclusions of law, order, and judgment in May 2018 . F ollowing appellants’ post trial
motions for amended findings, conclusions or law, or a new trial , the court made clerical
corrections and added a finding of fact but otherwise denied appellants’ motions.
This appeal follows.
D E C I S I O N
Appellants challenge the May 2018 judgment, the order denying their posttrial
motions, and the September 2018 amended judgment. Appellate courts “must apply the
facts as found by the district court unless those factual findings are clearly erroneous.”
Melillo v. Heitland, 880 N.W.2d 862, 864 (Minn. 2016) (quotation omitted). “To conclude
that findings of fact are clearly erroneous, we must be left with the definite and firm
conviction that a mistake has been made.” LaPoint v. Family Orthodontics, P.A. , 89 2
N.W.2d 506, 515 (Minn. 2017) (quotation omitted). A reviewing court gives “due regard”
to “the opportunity of the [district] court to judge the credibility of the witnesses.” Minn.
5
R. Civ. P. 52.01. “We review a district court’s application of the law de novo.” Harlow v.
Dep’t of Human Servs., 883 N.W.2d 561, 568 (Minn. 2016).
I. Appellants’ jurisdictional argument
As an initial matter, appellants argue that the district court “lacked subject matter
jurisdiction to grant relief on either the Complaint or Amended Complaint,” claiming that
the Goerdts never served them with any of his complaints. “Subject-matter jurisdiction
refers to a court’s authority to hear and determine a particular class of actions and the
particular questions presented to the court for its decision.” Zweber v. Credit River T wp.,
882 N.W.2d 605, 608 (Minn. 2016) (quotations omitted). Because appellants do not
challenge the district court’s authority to hear the case, we construe their challenge as one
to the court’s personal jurisdiction over them . See Minn. R. Civ. P. 3.01 -.02 (requiring
service of complain t and summons against each defendant in order to commence a civil
action). Indeed, appellants asserted lack of service of process in their answer and
counterclaim.
Whether personal jurisdiction exists is a question of law that appellate courts review
de novo. Shamrock Dev ., Inc. v. Smith , 754 N.W.2d 377, 382 (Minn. 2008). “[O]nce a
defendant affirmatively invokes the court’s power to determine the merits of all or part of
a claim, the defendant cannot then deny the court’s jurisdiction over him.” Patterson v. Wu
Family Corp., 608 N.W.2d 863, 869 (Minn. 2000); see Slayton Gun Club v. Town of Shetek,
176 N.W.2d 544, 548 ( Minn. 1970) (citation omitted) (“A party who takes or consents to
any step in a proceeding w hich assumes that jurisdiction exists or continues has made a
general appearance which subjects him to the jurisdiction of the court. ”). Here, appellants
6
did not move the district court to dismiss for lack of personal jurisdiction but twice moved
for summa ry judgment. We conclude that appellants waived any challenge to personal
jurisdiction.
II. Application of the merger doctrine
Appellants argue that the district court erred by not applying the merger doctrine to
conclude that the “terms of the Settlement Agreement merged into the subsequent Option
to Purchase Real Estate,” and “that the Option to Purchase Real Estate was effective when
Lucille gave to Robert on February 6, 2015, her notice of intent to sell; thus triggering
Robert’s right to ex ercise his option to purchase.” Here, in their motion for amended
findings, appellants argued that the district court should have appl ied the merger doctrine
in order to find in their favor regarding whether Robert effectivel y triggered his option.
The court implicitly denied this argument when it did not apply the merger doctrine in its
order denying appellants’ request for amended findings, conclusions of law, or a new trial.
The supreme court established in In re Brown’s Estate that the merger rule
applies to all stipulations and agreements contained in the
executory contract by which the performance of specified acts
are expressly made conditions precedent to the right to enforce
the same. If any thereof be left unperformed , and a deed in
performance of the contract be executed and accepted, the
presumption, in the absence of fraud or mistake, is that the
omitted acts or things so required were waived or abandoned.

148 N.W. 121, 122 (Minn. 1914). Here, appellants cite to no authority in support of their
argument that the terms of the settlement agreement merged into the option to purchase .
7
We conclude that t he district court did not err in rejecting appellants’ merger-doctrine
argument.
III. Waiver of challenge to a condition precedent in the settlement agreement
Appellants argue that Robert waived his right to challenge the effectiven ess of the
settlement agreement. The district court found that that Robert did not waive his right to
challenge the effectiveness of the settlement agreement. “[W]aiver is a voluntary and
intentional relinquishment or abandonment of a known right.” Montgomery Ward & Co. v.
County of Hennepin, 450 N.W.2d 299, 304 (Minn. 1990). “Waiver is generally a question
of fact, and it is rarely to be inferred as a matter of law.” Valspar Refinish Inc. v. Gaylord’s,
Inc., 764 N.W.2d 359, 367 (Minn. 2009) (quotation omitted).
“An agreement entered into as compromise and settlement of a dispute is contractual
in nature.” Voicestream Minneapolis, Inc. v. RPC Props., I nc., 743 N.W.2d 267, 271
(Minn. 2008). “[District] courts have the inherent power to summarily enforce a settlement
agreement as a matter of law when the terms of the agreement are clear and unambiguous.”
Id. at 272 (quotations omitted). Contract interpretation is a question of law that [appellate
courts] review de novo.” Valspar, 764 N.W.2d at 364 (quotation omitted). “The primary
goal of contract interpretation is to ascertain and enforce the intent of the parties,” and
“when a contractual provision is clear and unambiguous, courts should not rewrite, modify,
or limit its effect by a strained construction.” Id. at 364–65. In Valspar, the supreme court
concluded that a company did not waive a contract requirement that it receive written
notices of paint defects brought by customers where the company worked with customers
to try to rectify the defects. Id. at 368. The court found significant the fact that the
8
company’s representatives had not stated any intention to waive the written -notice
requirement. Id.
Our review of appellants’ argument requires this court to analyze the parties’
settlement agreement regarding the Section 4 land. As the district court found, Robert’s
April 30, 2015 letter specifically states that he was providing notice of his intent to exercise
his option. Similar to Valspar, Robert made no statement that would show his clear intent
to waive the settlement agreement’s condition precedent of receiving title for the Section
3 land; indeed his April 30, 2015 letter states his explicit intent not to waive that condition.
See Carlson v. Doran , 90 N.W.2d 323, 324 (Minn. 1958) (stating that waiver is the
“expression of an intention not to insist upon what the law affords; it is consensual in its
nature; the intention may be inferred from conduct , and the knowledge may be actual or
constructive, but both knowledge and intent are essential elements”). And as the district
court found, the settlement agreement specifically states that it “shall become effective
upon [Robert] receiving the quit claim deed for the Section 3 land.” We therefore conclude
that the court did not err in concluding that Robert did not waive the condit ion precedent
that he receive title to the Section 3 land, and that the settlement agreement was not
effective until this condition was met . See Voicestream, 743 N.W.2d at 273 (stating that
“encouraging (and enforcing) the settlement of claims” is an “important public policy”).
IV. Effectiveness and timely exercise of option to purchase Section 4 land
Appellants argue that Robert’s option is unenforceable. Based on the district court’s
May 3 and September 12, 2018 orders, our consideration of this issue is not necessary
because the court’s disposition returned the parties to the position s they held prior to
9
Robert’s exercise of his option. In the interests of future judicial economy, we nevertheless
address the issue. See Ryan Contracting Co. v. O’Neill & Murphy, LLP, 868 N.W.2d 473,
481 (Minn. App. 2015) (addressing issue in case “in the interests of judicial economy
because it is likely to arise on remand”), aff’d as modified, 883 N.W.2d 236 (Minn. 2016);
Minn. R. Civ. App. P. 103.04 (“The appellate courts may . . . take any other action as the
interest of justice may require.”).
“An option is merely an agreement to hold an offer to sell property open for a
specified time.” Morrison v. Johnson , 181 N.W. 945, 946 (Minn. 1921). “An option is a
unilateral undertaking to keep an offer open for a period of time.” Abrahamson v.
Abrahamson, 613 N.W.2d 418, 423 (Minn. App. 2000). “Once a con tract option has been
exercised in accordance with its terms, it changes into a contract of purchase and sale.” In
re City of Shakopee, 295 N.W.2d 495, 497 (Minn. 1980).
Robert’s recorded option in pertinent part reads:
Robert Goerdt , as Trustee of the Goe rdt Family
Irrevocable Living Trust, called “Grantor” grants to Robert
Goerdt (and his heirs and assigns), “Grantee,” the sole and
exclusive option to purchase [the Section 4 land], described,
pursuant to the terms of the settlements agreement, . . . . The
terms of said option are as follows:
1. The purchase price for this option to purchase shall
be 75% of the fair market value of the property as determined
by an appraiser agreeable to both the owner and Grantee. . . .
2. Grantee has the option to purchase this property 1) on
or after January 1, 2017, 2) if Lucille Goerdt dies, or 3) if the
current owner thereof wishes to convey to anyone other than
Lucille Goerdt.
3. If the owner wishes to convey [the Section 4 land] to
anyone other than Lucille Goerdt, th e owner shall notify
Grantee in writing of said intention and Grantee shall then have
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90 days in which to notify owner in writing of his desire to
exercise the option.
4. If Grantee wishes to exercise the option in the other
two circumstances listed in par agraph one (1), he shall notify
the current owner in writing of said intention.
5. In all three circumstances listed above, the owner and
Grantee shall then enter into a purchase agreement whereby
owner shall agree to convey to Grantee free and clear of any
encumbrances after obtaining a fair market value
determination in the manner described in paragraph one (1),
and Grantee shall have up to 120 days from the date the
purchase agreement is executed to close the transaction.

The district court implicitly found that the option was enforceable when it concluded that
Robert “did exercise a timely and proper option to purchase.”
Appellants argue that Robert’s option is unenforceable because it lacks
consideration. “If [an] agreement is made for a valuable consideration it becomes a binding
contract and the offer cannot be withdrawn; if made without consideration it does not
become a binding contract until accepted and the offer may be withdrawn at any time
before it has been accepted.” Morrison, 181 N.W. at 946. Whether sufficient consideration
was given is a question of law. Concordia College Corp. v. Salvation Army , 470 N.W.2d
542, 546 (Minn. App. 1991), review denied (Minn. Aug. 2, 1991). Here, we conclude that
Robert provided consideration for the option by resigning as trustee, dismissing his pending
claims, and forgoing an interest in the trust and Lucille’s estate. See Charles v. Hill, 260
N.W.2d 571, 575 (Minn. 1977) (holding son ’s forbearance of claim agai nst estate, when
bargained for, was adequate consideration for option contract).
Appellants also argue that Robert’s option is unenforceable because it did not
contain essential terms, mainly the time frame with which the parties must form a purchase
11
agreement. We disagree. The option here contained the essential terms: a description of
property (by reference to the settlement agreement which contained a legal description of
the Section 4 land), the cost (fair market value based on a formula established in the option),
and a time limit for closing. The lack of a time period during which Robert and Lucille
must agree on a purchase price does not render the option unenforceable, as Minnesota law
provides that when no deadline is provided to perform under an option, performance must
be done within a “reasonable time.” See Dyrdal v. Golden Nuggets, Inc., 689 N.W.2d 779,
785 (Minn. 2004) (“We acknowledge that upon receiving notice, a lessee may have to
clarify or investigate uncertainties and ambiguities of essential terms, but we also conclude
that such an inquiry must be done within a reasonable time and that both the lessee, in
making inquiry, and the lessor, in responding to the inquiry, must act timely, reasonably
and in good faith.”). And the cases that appel lants cite are inapplicable, as Malevich v.
Hakola, 278 N.W.2d 541 , 543 (Minn. 1979), regards an option contract used as a
“memorandum of a contract of sale of real estate,” which is not present here as the option
makes clear that the parties must separate ly negotiate a purchase agreement; and Romain
v. Pebble Creek Partners, 310 N.W.2d 118, 119 (Minn. 1981), addressed the applicability
of the notice -cancellation statute to a purchase agreement and did not involve an option
contract. We therefore conclude that Robert’s option was enforceable.
Appellants also argue that Robert failed to timely exercise his option because the
parties did not form a purchase agreement in the requisite 90 -day period . “An option
remains a unilateral undertaking and conveys no interest in its subject matter until the
optionee effectively exercises it,” and if “the time in which an option is to be exercised
12
expires before the optionee meets its terms and conditions, the option lapses.” Abrahamson,
613 N.W.2d at 423. The district court found that Robert timely exercised his option by
sending Lucille his notice of intent to buy the Section 4 land in April 2015.
Analyzing the plain language of the option, we conclude that Ro bert timely
exercised the option by notifying Lucille of his intent to purchase the Section 4 land within
90 days of receiving Lucille’s notice of her intent to sell. Appellants’ argument assumes a
reading of the option that requires a purchase agreement m ust also be executed within 90
days of Lucille’s initial notification that she intended to sell the Section 4 land. But this
reading ignores the separation in the language of the option of the requirements to provide
notice and to execute a purchase agreement; and the option contains no language regarding
a time limit for executing a purchase agreement.
Appellants cite to Hansen v. Phillips Beverage Co., which involved a letter of intent
to sell a business that specifically stated that it “shall not be a bi nding legal agreement.”
487 N.W.2d 925, 926 (Minn. App. 1992). There, this court concluded that no contract to
sell the business had been formed because the parties “clearly indicated an intent not to be
bound” by stating such in the letter of intent. Id. at 927. Here, unlike in Phillips, Robert’s
option contains no such explicit statement of the parties’ intent not to be bound by the
option or eventual purchase agreement. Lucille notified Robert of her intent to sell the
Section 4 land in February 2015; Robert replied by letter on April 30, 2015, within the 90-
day deadline, informing Lucille of his exercise of the option; he then informed Lucille of
his appraiser selection, and Lucille never responded. We conclude therefore that the district
court did not err in concluding that Robert timely exercised his option.
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V. District court’s grant of relief based on the original complaint
In his cross -appeal, Robert argues that the district court erred by granting relief
based on the original complaint and not the first or second amended complaint. In its May
4 and September 17, 2018 orders, the district court found:
Although an unsigned Amended Complaint was filed
with the Court on August 22, 2017 and a signed Amended
Complaint on October 18, 2017, neither of those Complaints
were served on the other party and therefore the original
complaint will be considered by this Court. It should also be
noted that both Amended Complaints seem to be drafted and/or
signed by Attorney Kristian Svingen, who has not been the
attorney for Plaintiffs since January 11, 2016.

The record shows that Robert filed the original complaint on July 17, 2015, with no
affidavit of service. Appellants filed an answer to the original complaint and counterclaim,
dated January 4, 2016, and an affidavit of service on March 24, and Robert filed an answer
and an affidavit of service on February 8. And on August 22 and October 18, 2017, Robert
filed the first and second amended complaints with no affidavits of service.
Based on this record, the district court properly concluded that neither of Robert’s
amended complaints was properly served. And while the court proceeded on the basis of
the original complaint, both parties were able to fully present their claims and defenses at
trial, and it is therefore not apparent what prejudice Robert suffered. 5 See Folk v. Home
Mut. Ins. Co. , 336 N.W.2d 265, 267 (Minn. 1983) (“Consent [to litigate] is commonly
implied either where a party fails to object to evidence inadmissible with respect to issues

5 The district did not rule on appellants’ counterclaims , and appellants claim no error
regarding their counterclaims.
14
raised by the p leading or where he puts in his own evidence relating to nonpleaded
issues.”). “Although error may exist, unless the error is prejudicial, no grounds exist for
reversal.” Kallio v. Ford Motor Co. , 407 N.W.2d 92, 98 (Minn. 1987); see also Minn. R.
Civ. P. 61 (requiring harmless error to be ignored). Even assuming that the district court
erred by proceeding on the basis of the original complaint, we discern no prejudice suffered
by either party and therefore reject this argument.
Affirmed.