In re the Estate of: Joann Roselia Gregory, aka JoAnn R. Gregory and aka JoAnn Gregory, Deceased.

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1160

In re the Estate of: Joann Roselia Gregory, aka JoAnn R. Gregory
and aka JoAnn Gregory, Deceased.

Filed June 21, 2021
Affirmed
Slieter, Judge

Scott County District Court
File No. 70-PR-20-9342

Kiara Kraus-Parr, Kraus-Parr, Morrow & Weber, Grand Forks, North Dakota; and

Timothy C. Lamb ( pro hac vice ), Lamb Law LLC, Grand Fo rks, North Dakota (for
appellants Jeff and Ron Gregory)

Anton Cheskis, Huemoeller, Gontarek & Ch eskis PLC, Prior Lake, Minnesota (for
respondent Judith Vogel)

Considered and decided by Slieter, Pres iding Judge; Johnson, Judge; and Hooten,
Judge.
NONPRECEDENTIAL OPINION
SLIETER, Judge
The district court approved the sale of decedent’s farmstead by respondent-personal
representative. Appellants ar gue that the sale was not co mmercially reasonable and that
they should have been given an opportunity to buy the property, a nd the district court
therefore erred. Because the district cour t did not err in finding the sale price as

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commercially reasonable and because appellant s have no other legal basis upon which to
object to the sale, we affirm.
FACTS
This matter involves the sale of dece dent Joann Roselia Gregory’s farmstead
property in Jordan, MN of approximately 95 acres (the property). The decedent instructed
by her will that the property, due to her husband predeceasing her, would become part of
the residue of her estate and be devised to her three children. The three children are
respondent Judith Vogel and appellants Ron Gregory and Jeff Gregory.1 Respondent was
appointed personal representative of the estate by order of the district court on March 14,
2019. Appellants were living in the house lo cated on the homestead with the decedent at
the time of her death.
On May 1, 2020, res pondent entered into a contract with real estate agent Randy
Kubes to sell the property. The property included the ho use and numerous outbuildings
which together comprised a functioning dairy operation and included tillable acres.
Respondent executed an agreement on May 13, 2020, for th e sale price of $1,150,000.
Appellants communicated to respondent that they were not in favor of selling the property
and hired counsel to contest the sale. It was al so at this time that appellants, for the first
time since respondent’s appointment as the personal re presentative and despite multiple
inquiries from respondent asking what they desired with regard to the property, expressed
an interest in purchasing the property.

1 Also referred to in the record intercha ngeably as “Ronald Gregory” and “Jeffrey
Gregory.”

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Following an evidentiary hearing on respondent’s motio n to confirm the sale, the
district court concluded that that respondent “in her capacity as the Personal Representative
in this matter, ha[d] acted fair ly and reasonably in all of her dealings concerning the sale
of the property,” that she had “acted within her reasonable judgment for completely proper
motives,” and that the $1,150,000 purchase price was “commercially reasonable.” The
district court approved the sale. This appeal follows.
DECISION
“An appellate court reviews a district cour t’s findings of fact concerning wills and
trusts under a clearly erroneous standard and reviews a district court’s conclusions of law
de novo.” In re Estate of Short, 933 N.W.2d 533, 537 (Minn. App. 2019). “A finding is
clearly erroneous if the reviewing court is left with a definite and firm conviction that a
mistake has been made.” In re Estate of Neuman, 819 N.W.2d 211, 215 (Minn. App. 2012).
“A personal representative is a fiduciary who . . . is under a duty to settle and
distribute the estate of the decedent in ac cordance with the terms of any probated and
effective will and applicable law, and as expeditiously and efficiently as is consistent with
the best interests of the estate.” Minn. Stat . § 524.3-703(a) (2020). In doing so, and so
long as doing so is “reasonably for the benef it of the interested persons,” the personal
representative may “sell, mortga ge, or lease any real or pers onal property of the estate.”
Minn. Stat. § 524.3-715(23) (20 20). Appellants argue that the district court erred by
finding respondent’s sale of the property to be commercially reasonable and by concluding
that respondent did not have to accommodate appellants’ expressed desire to purchase the

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property.2 We consider each argument and concl ude the district court did not err in
approving the sale of the property.
Commercially Reasonable

Appellants allege that the personal repres entative’s failure to obtain an appraisal and
failure to list the property on MLS (a natio nwide listing service) demonstrate a lack of
“good faith and fair dealing,” and that the district court erred “when it found that the sale
price and method of sale . . . [to be] commercially reasonable.” Whether the sale of estate
property is “commercially reason able” is a question of fact. In re Estate of King , 668
N.W.2d 6, 10 n. 1 (Minn. App. 2003). The record supports the district court’s finding that
the sale was commercially reasonable.
Each party presented testimony from a real estate agent, with Randy Kubes
testifying for respondent and Yvonne Perkins testifying for appellants. In summary, each
realtor testified that the sales price of $1,150, 000 was reasonable. Kubes testified that he
was familiar with the property and had worked with the family on the sale of an adjoining
piece of land in the past. He testified that he had listed the property at $1,250,000—which
he described as a “fair price that would be able to get it [sold] within six months”—but that
the ultimate sale price was “fair and commerc ially reasonable.” When asked about the

2 Appellants separately argue that “[t]he lowe r court erred by ordering the estate to be
divided by one-third each to the heirs because such a finding of fact was clearly outside the
scope of the petition to sell the farmstead.” We do not address this claim because the
district court’s order contained no such provision. The portion of the order referred to by
appellants was contained within the district court’s findings of fact. A court’s findings of
fact are not an order. Minn. R. Civ. P. 52.01; see Minn. Stat. § 524-1-304(a)(2020) (noting
that, generally, probate proceedings are governed by the rules of civil procedure).

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reasonableness of appellants’ suggested sale price—$1,500,000—Kubes testified that such
a price was “futuristic” and “wouldn’t be a fair price in today’s market,” and that “it would
take some time to get it sold for that.” Kubes additionally testified that he did not think he
would have received any higher offers if they had waited or liste d the property on MLS,
and that he had strategic reasons for not doing so. Specifically, Kubes opined that when
listing on MLS there is “always [the] concern . . . that you put it out on the open market
and it doesn’t get viewed as well as you think it might, and then the [current] high bidder
starts to become in control of the transaction a little bit more.”
Perkins, though admitting that she “ha[d] not done a lot of work” related to the
property, indicated that $1,150,000 for the property “[wa]sn’t a bad price.” Perkins
testified that, though she had previously identified a buyer at a higher purchase price, that
potential buyer was no longer interested because of the COVID-19 pandemic.
Furthermore, though Perkins testified that an MLS listing could be useful as it opened up
sales to a “huge market of buyers,” she admitt ed that she did not list all her properties on
MLS.
The district court, apparently finding bo th realtors to be credible, relied on their
testimony in judging the “commercial reasonableness” of the sale. The district court found
that “[w]hile [appellants] ma ke allegations as to what [respondent] could have done
differently in listing the farmstead, there is no evidence that [resp ondent]’s conduct in
determining the value of the farmstead was unreasonable,” and found that respondent
“obtained a fair and reasonable price for the property according to both real estate experts.”

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The district court additionally found appellants’ claims of a higher fair market value to be
“on the whole . . . rather disingenuous” and not credible.
A district court’s findings of fact may be overruled only if clearly erroneous. Short,
933 N.W.2d at 537. The district court heard testimony from the real estate agents (both of
whom opined that the sale was reasonable), heard the counter-arguments from appellants,
and found that the real estate agents were credible and th at the sale was, therefore,
“commercially reasonable.” In summary, because the evidence supports the district court’s
findings and appellants presented no evidence that the lack of appraisal and MLS listing
controverts these findings, the district court did not clearly err.
Appellants’ Objection to the Sale

Appellants separately argue that respondent “did not adequately consider the wishes
of the majority of the heirs to buyout” the pr operty. They argue that “the law recognizes
that beneficiaries of an estate have ‘heirs’ preference to keep the property in the family,’”
and that “the district court failed to properly . . . allow [appellants] reasonable time to
pursue their goal of keeping the homestead in the family.” Ap pellants are mistaken as to
the law. Even if appellants had timely made an offer to purchase th e property, which the
record indicates did not occur, respondent was under no obligation to sell to the property
to them.3 We review questions of law de novo. Id.

3 The hypothetical situation in which respondent may have been obligated to sell the
property to appellants would have been if appellants had (1) timely filed an offer to
purchase the property that was (2) reasonable and at a compelling price relative to both the
market value of the property and any other competing offers. Ho wever, this obligation
would have stemmed not from a ppellants’ status as heirs but from respondent’s duty to

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Appellants argue the district court’s erro r in denying their objection to the sale
confirmation is supported by our holding in In re Estate of Riggle , 654 N.W.2d 710, 714
(Minn. App. 2002). We disagree. In Riggle, this court concluded that a decedent’s spouse
was entitled to ownership of the marital homestead despite allegations that the homestead
had been “abandoned” by the spouse because the couple (w hile still married) was
separated. Id. at 712-14. The holding of Riggle involved unique facts in which this court—
in a very limited manner—recognized the public policy of retaining property within the
“family unit” specifically in th e context of a surviving spouse ’s interest in a potentially-
abandoned homestead. Id. at 715-16. However, neither Riggle, nor any other Minnesota
caselaw create a preferential right for heirs to purchase property fro m an estate absent
specific language in the will or an order of the district court. See Minn. Stat. § 524.3-
715(23) (stating personal representative may unilaterally sell estate real property “[e]xcept
as restricted or otherwise provided by the will or by an order in a formal proceeding”).
Appellants separately argue that Minn. Stat. § 524.3-607 (2020) “gives preference
to heirs who wish to purchase estate property” by stating that “[o]n petition of any person
who appears to have an interest in the estate . . . the [district] court may restrain a personal
representative” from “jeopardiz[ing] unreasonabl y the interest of th e applicant” in an
estate. However, no such petition was filed and this issue was not considered by the district
court. We decline to do so for the first time on appeal. Thiele v. Stich, 425 N.W.2d 580,
582 (Minn. 1988) (“A reviewing court must generally consider ‘only those issues that the

dispose of the estate property in a manner “consistent with the best interests of the estate.”
Minn. Stat. § 524.3-703(a). No such offer was made.

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record shows were presented and considered by the trial court in deciding the matter before
it.’”).
Respondent was permitted and required by the clear and unambiguous language of
Minn. Stat. § 524.3-715(23) and Minn. Stat. § 524.3-703(a) to sell the property. Moreover,
respondent was permitted to do so without appellants’ consent. The district court did not
err in approving the sale.
Affirmed.