Denise M. Tessman, Respondent,

This opinion will be unpublished and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
A19-0791

Denise M. Tessman,
Respondent,

vs.

Blaine P. Clark,
Appellant.

Filed November 25, 2019
Affirmed
Bjorkman, Judge

Becker County District Court
File No. 03-CV-18-329

Zenas Baer, Zenas Baer Law Office, Hawley, Minnesota (for respondent)

Brian P. Toay, Wold Johnson, P.C., Fargo, North Dakota (for appellant)

Considered and decided by Connolly, Presiding Judge; Bjorkman, Judge; and
Reyes, Judge.
U N P U B L I S H E D O P I N I O N
BJORKMAN, Judge
Appellant challenges the order vacating a quitclaim deed that granted him a
remainder interest in lake property. He argues that the district court erred by considering
extrinsic evidence in violation of the parol -evidence rule and by determining that the
remainder interest was not a valid inter vivos gift. We affirm.

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FACTS
Respondent Denise M. Tessman is the mother of appellant Blaine P. Clark.
Tessman has three other ch ildren and several grandchildren. In 2000, Tessman obtained
full ownership of the real property in dispute (the lake house), where she has resided ever
since.
In 2010, Tessman met with an estate-planning attorney to discuss her wish to protect
the lake house from future cr editors, specifically a medical -assistance lien, so that the
property could stay in the family for the benefit of her children and grandchildren. The
attorney advised Tessman to grant a remainder interest in the lake house to another
individual and to reserve a life estate for herself. But the attorney did not inform Tessman
of the rights and obligations o f life tenants and holders of remainder interests , advise her
about gifts, or otherwise explain the legal effects of such a transfer.
Based on the attorney’s advice, Tessman executed a quitclaim deed on October 27,
2010, transferring the lake house to Clark and reserving a life estate for herself. She
recorded the deed on October 29, 2010. Before executing the deed, Tessman talked to
Clark about the attorney’s advice and Tessman’s goal of keeping the lake house in the
family. It is undisputed that Tessman executed the deed without Clark’s knowledge or
consent. But the parties dispute whether Tessman gave the deed to Clark shortly a fter
signing it in 2010, or in 2015. Tessman later testified that she did not intend to give the
property to Clark as a gift, and she never filed a gift tax return.
The lake house was subject to a mortgage at the time of the transfer. Neither party
was aware that Clark, as the holder of the remainder interest, was legally obligated to pay

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the principal on the mortgage. Tessman continued to make all mortgage payments. Clark
frequently visited the lake house and performed maintenance on the property until 2015.
In summer 2015, Tessman and Clark had a falling -out. On July 13, Tessman sent
Clark a letter, through her attorney, demanding that he remove his personal property from
the lake house . The letter als o informed Clark that he was legally obligated to pay the
principal on the mortgage. Tessman stated that she reserved the right to seek recovery of
all the principal payments that she had made since she executed the deed. Clark did not
begin making payments or indicate a willingness to do so.
In February 2018, Tessman commenced this action, alleging that Clark breached his
duty to pay t he principal on the mortgage. She sought to vacate the deed or, in the
alternative, to recover damages for the unpaid pr incipal. In his answer, Clark denied that
he had breac hed his obligation with respect to the mortgage payments. But he
acknowledged in his trial memorandum that he is liable for principal payments from July
2015 to the present.
Following a court trial, the district court concluded that the deed was not a contract
because Clark did not provide any consideration for the remainder interest in the lake
house.1 The court then analyzed whether the remainder interest was a valid inter vivos gift.
It determined that the interest was not a valid gift because it lacked two of the necessary
elements for a gift: (1) donative intent by Tessman and (2) delivery to and acceptance by

1 This determination is not at issue in this appeal.

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Clark. Because the deed granting Clark a remainder interest was not a valid gift, the district
court vacated it and vested title of the lake house in fee simple to Tessman. Clark appeals.
D E C I S I O N
Clark argues that the district court clearly erred in determining that the deed
transferring the remainder interest in the lake house to him was not a valid inter vivos gift.2
An inter vivos gift has three elements: (1) delivery, (2) donative intent by the donor, and
(3) absolute disposition of the property. Oehler v. Falstrom, 142 N.W.2d 581, 585 (Minn.
1966). The donee must establish each element by clear and convincing evidence. Id. The
district court found that the third element was satisfied when Tessman recorded the deed.
But it nonetheless determined that the deed was not a valid inter vivos gift because the
evidence did not establish the elements of donative intent and delivery. Whether donative
intent and delivery are present are questions of fact. Id. We review findings of fact for
clear error. Rasmussen v. Two Harbors Fish Co. , 832 N.W.2d 790, 797 (M inn. 2013).
Findings of fact are clearly erroneous when they lack support in the record and when we
are left with a definite and firm conviction that the district court made a mistake. Id.

2 Clark also argues that the di strict court violated the parol -evidence rule by considering
extrinsic evidence of Tessman’s donative intent. But Clark did not raise this argument or
challenge the admission of this evidence in the district court. And he did not move f or
amended findings or a new trial on this basis. We generally consider only issues that were
presented to and decided by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn.
1988); see also Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn. , 664
N.W.2d 303, 311 (Minn. 2003) (allowin g appellate review of the parol -evidence rule
despite failure to file a posttrial motion for a new trial, when the issue was “properly raised
and considered at the district court level”) . A party forfeit s an argument when it fails to
timely assert it. State v. Beaulieu, 859 N.W.2d 275, 278 n.3 (Minn. 2015) (quoting United
States v. Olano, 507 U.S. 725, 733, 113 S. Ct. 1770, 1777 (1993)). Because Clark forfeited
his parol-evidence argument, we will not consider it.

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I. The district court did not clearly err in finding no donative intent.
A voluntary payment from a parent to her child is generally presumed to be a gift.
Stahn v. Stahn, 256 N.W. 137, 137 (Minn. 1934). And donative intent is presumed when
a person executes a deed that conveys a property interest to another person. See Olsen v.
Olsen, 552 N.W.2d 290, 292 (Minn. App. 1996) (finding inclusion of two names on a deed
to be strong evidence of donative intent to give the property to both people), aff’d, 562
N.W.2d 797 (Minn. 1997). But a presumption is “merely a procedura l device.” Kath v.
Kath, 55 N.W.2d 691, 693-94 (Minn. 1952). When “substantial countervailing evidence”
is presented, the presumption “ceases to have any function and vanishes completely . . . as
if it had never existed.” Id. at 694. The presumption of donative intent “may be overcome
by proof that the intention of the parent was not to make an absolute gift, as by declarations
or acts of the parties inconsistent with the idea that a gift was intended.” Stahn, 256 N.W.
at 137.
The district court recogn ized that donative intent is presumed because Tessman
executed a deed that transferred a property interest to an immediate family member. But
it found the presumption was rebutted by “substantial countervailing evidence” that
Tessman did not intend the tr ansfer to be a gift to Clark. Specifically, the district court
found that (1) Tessman did not intend the transfer to be a gift, file a gift tax return for 2010,
or understand the legal obligations of life tenants and remaindermen; (2) there was no
alternative motive for Tessman to give a gift to Clark; (3) Clark never considered the
property “his”; and (4) Tessman’s purpose in executing the deed was “to defraud potential
future creditors” because she wanted to protect the property from a medical-assistance lien.

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With the presumption rebutted, the court determined that Clark had failed to introduce clear
and convincing evidence of donative intent.
The record supports the district court’s finding that Tessman did not intend to give
the lake house to Clark as a gift. Its finding that Tessman’s true intent was to defraud future
creditors may have been clearly erroneous, as the parties agree that granting a remainder
interest to protect real property from a medical -assistance lien is a common practice in
estate planning. But the record supports the district court’s other findings regarding
donative intent. Tessman testified that she did not file a gift tax return for 2010. See Olsen,
552 N.W.2d at 292 (finding that listing two parties as recipients on a gift tax return shows
intent to give the property to both parties). And Tessman testified that she did not intend
the remainder interest to be a gift to Clark. Instead, she executed the deed to protect the
lake house from creditors and to keep the property in her family for the benefit of her
children and grandchildren. In other words, she did not intend to transfer the lake house to
Clark for his sole benefit. On this record, we cannot say that the district court clearly erred
in finding that Tessman lacked donative intent.
II. The district court did not clearly err in finding there was no delivery.
Delivery of a deed requires the “surrender of its control by the grantor, together with
an intent to convey title thereby.” Exsted v. Exsted , 279 N.W. 554, 557 ( Minn. 1938).
Clark contends that delivery was “clearly proven” by evidence that Tessman recorded the
deed and gave a copy to him shortly after signing it. We disagree. At trial , the parties
submitted conflicting evide nce regarding when Clark received th e quitclaim deed. On
direct examination, Clark testified that Tessman hand ed him the deed in 2010, about one

7
week after they had discussed her plan to transfer the lake house to keep it in the family .
But on cross -examination, Clark admitted that he did not see the deed until 2015 and
specifically requested it from Tessman’s attorney at that time. We defer to the district
court’s opportunity to judge the credibility of witnesses. Minn. R. Civ. P. 52.01. The
district court clearly gave more weight to Clark’s testimony on cross-examination when it
found that physical delivery of the deed did not occur until 2015.
Nevertheless, delivery can occur even if Tessman did not physically give the deed
to Clark. Recording a deed, even without the donee’s knowledge, constitutes valid
delivery, as long as it is followed by the donee’s assent. Kessler v. Von Bank , 174 N.W.
839, 840 (Minn. 1919); see also Ingersoll v. Odendahl, 162 N.W. 525, 526 (Minn. 1917)
(holding that recording a deed without the knowledge of the donee raises a presumption of
delivery). A donee must accept the gift before the donor revokes it. Walso v. Latterner, 168 N.W. 353, 355 (Minn. 1918). When the gift is “wholly beneficial to the donee , with
no burdens imposed, acceptance is presumed as a matter of law.” Id.
The district court found that Tessman recorded the deed without Clark’s knowledge.
Clark’s acceptance was not presumed because a remainder interest in real property carries
the burden of paying the principal on the mortgage, so it is not wholly beneficial to the
donee. The court then found that Clark did not accept the transfer because he did not agree
to pay the mortgage principal until after Tessman commenced this action, which essentially
revoked any gift.
This analysis is consistent with the record and caselaw. As the district court
recognized, a holder of a r emainder interest is obligated to pay the principal on any

8
mortgage encumbering the subject property. Kreuscher v. Roth, 188 N.W. 996, 997 (Minn.
1922). Thus, acceptance by Clark is not presumed. And the record supports the finding
that Clark did not accept the transfer memorialized by the deed before it was revoked. The
2015 letter from Tessman’s attorney may not have indicated that she was revoking the
transfer, but this 2018 lawsuit clearly demonstrated the intent to revoke. Clark does not
dispute that he first accepted responsibility to pay the mortgage principal in his February
2019 trial memorandum, one year after Tessman commenced this action. Although neither
party realized that Clark was legally obligated to pay the principal, there is no precedent
suggesting that ignorance of this duty changes the fact that recording the deed did not
constitute acceptance. Because Clark did not assume the burden imposed by the transfer
of the lake house , the district court’s finding that delivery did not occur is not clearly
erroneous.
In sum, donative intent and delivery are necessary elements of an inter vivos gift.
The district court’s findings that there was no donative intent or delivery are not clearly
erroneous. Accordingly, the deed transferring a remainder interest in the lake house to
Clark was not a valid inter vivos gift.
Affirmed.