Matthew Braith, et al., Respondents,

This opinion is nonprecedential except as provided by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
A21-1554

Matthew Braith, et al.,
Respondents,

vs.

Laurie Ann Duban, et al.,
Respondents,

Aaron Todd Kasparek,
Appellant,

and

Nicole Lynn Campbell f/k/a Nicole Lynn Kasparek,
Defendant.

Filed August 15, 2022
Affirmed
Wheelock, Judge

Rice County District Court
File No. 66-CV-20-2729

Michael J. Orme, Dana K. Nyquist, Orme & Associates, Ltd., Eagan, Minnesota (for
respondents Braith, et al.)

Brian J. Wisdorf, Robert B. Bauer, Dougherty, Molenda, Solfest, Hills & Bauer P.A.,
Apple Valley, Minnesota (for respondents Duban, et al.)

Kimberly C. Woodgate, Anderson & Skubitz, PLLC, Le Sueur, Minnesota; and

Kenneth R. White, Law Office of Kenneth R. White, Mankato, Minnesota (for appellant)

Considered and decided by Reyes, Presiding Judge; Gaïtas, Judge; and Wheelock,
Judge.
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NONPRECEDENTIAL OPINION
WHEELOCK, Judge
In this dispute over the enforceability of a right-of-first-refusal agreement for real
property following the conveyance of that property to the owner’s adult children through a
transfer on death deed (TODD) and subsequent sale, appellant challenges the grant of
summary judgment to respondent-purchasers. Appellant argues that an exception in the
right-of-first-refusal agreement applies only to partial conveyances to the owner’s children,
and the district court misread the exception to include a conveyance of the entire property.
Because the plain language of the agreement states that the right of first refusal does not
apply to any conveyance of the property to the owner’ s children, and nothing in the
agreement provides for the right -of-first-refusal obligation to transfer to the children, we
affirm.
FACTS
In December 2002, appellant Aaron Kasparek entered into a contract with Lynn
Fitzpatrick and Adolph Colwell that provided Kasparek with a right of first refusal to
purchase an approximately 47-acre plot (the subject property) near Northfield, Minnesota.
The contract was ancillary to a purchase agreement between Kasparek and Fitzpatrick for
the neighboring homestead property Fitzpatrick owned. Colwell and Fitzpatrick were
divorced in 1984, and, as part of the dissolu tion, Fitzpatrick became the owner of the
homestead property, and Colwell became the owner of the subject property.
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The right-of-first-refusal contract contained the following exception:
Such right of first refusal shall not apply for any sale or
conveyance to any of Seller’s children or other immediate
family members of Seller or Seller’s successor undersigned. If
a portion of said additional property is sold or transferred to a
Seller or Colwell family member, remaining lands shall remain
subject to Purchasers’ Right of First Refusal.

Throughout the contract, “Seller ” refers to Fitzpatrick, and “successor owner” or
“successor undersigned” refers to Colwell.
In July 2019, a few weeks before his death, Colwell executed a TODD conveying
the subject property to his daughters—Laurie Duban, Lanae Eide, Leah Colwell, and
Latitia Hostutler (the daughters) —who are respondents in this appeal. In May 2020,
Kasparek learned that the subject property had been listed for sale. He had previously
discussed his interest in purchasing the property and the right of first refusal with one of
the daughters, and he initiated communications with the listing realtor, who was aware of
the right-of-first-refusal contract. Kasparek contracted with the listing realtor to represent
him as a dual agent in his purchase of the subject property in October 2020.
In October 2020, the daughters entered into a purchase agreement with respondents
Matthew and Sarah Braith (the Braiths) for the subject property. The Braiths reside on
other property that also borders the subject property. The purchase agreement between the
daughters and the Braiths included terms that the agreement was subject to cancellation of
the third-party right of first refusal and that the closing date be within 45 days of the
cancellation of the third-party right of first refusal. Weeks later, the daughters entered into
a purchase agreement with Kasparek. The purchase agreement between the daughters and
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Kasparek included a term that the agreement was subject to cancellation of a previously
written purchase agreement dated October 26, 2020, referring to the purchase agreement
between the daughters and the Braiths.
In December 2020, the Braiths sought from the district court a declaratory judgment
that Kasparek’s right of first refusal had been terminated and an order for specific
performance requiring the daughters to perform under the Braith purchase agreement. A
notice of declaratory cancellation of residential property purchase agreement was served
on Kasparek. The daughters and Kasparek filed answers and counterclaims, and the district
court ordered the parties to enter into mediation.
All parties moved for summary judgment, and the district court held a hearing on
the motions. The district court issued an order granting summary judgment to the Braiths,
dismissing all counterclaims and cross-claims by all parties, and permitting the Braiths to
close on the purchase of the subject property.
Kasparek appeals.
DECISION
“We review a grant of summary judgment de novo to determine whether there are
genuine issues of material fact and whether the district court erred in its application of the
law.” Montemayor v. Sebright Prods., Inc., 898 N.W.2d 623, 628 (Minn. 2017) (quotation
omitted). “Absent ambiguity, the interpretation of a contract is a question of law.”
Roemhildt v. Kristall Dev., Inc. , 798 N.W.2d 371, 373 (Minn. App. 2011), rev. denied
(Minn. July 19, 2011). “Questions of law are reviewed de novo.” Id. Whether a contract
is ambiguous is a question of law. Denelsbeck v. Wells Fargo & Co., 666 N.W.2d 339,
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346 (Minn. 2003). If a contract is unambiguous, its language “must be given its plain and
ordinary meaning, and shall be enforced even if the result is harsh.” Id. at 346-47
(quotation omitted). A district court’ s application of a contract to undisputed facts is
reviewed de novo. Cisar v. Slyter, 812 N.W.2d 151, 153 (Minn. App. 2012), rev. dismissed
(Minn. Apr. 17, 2012).
The district court granted the Braiths’ motion for summary judgment, determining
that Kasparek’s right of first refusal terminated when Colwell conveyed the subject
property to the daughters. The district court based its determination on the TODD and the
plain and unambiguous exception language of the right-of -first-refusal agreement that
Kasparek entered into with Colwell, reasoning:
The first sentence . . . makes it clear that if the property
is conveyed to an immediate family member, the right of first
refusal does not apply. The second sentence makes it clear that
the right of first refusal no longer exists for property conveyed
or transferred to family members, importantly noting that the
right of first refusal remains only upon any portion of the
property not transferred to a Colwell family member. Since
all of the property was transferred to immediate Colwell family
members, i.e. children, there is no property remaining to which
the right of first refusal would attach.

The district court found nothing to support Kasparek’s contention that the right of first
refusal survived the conveyance from Colwell to his children.
Kasparek’s argument that the district court erred relies on two theories: first, that
the exception to the ri ght of first refusal for conveyance to Colwell ’s children does not
apply under the language of the agreement because the TODD transferred the entire parcel
and not a portion of the parcel; and second, that the right of first refusal is an encumbrance
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on the property that the TODD did not extinguish and by which Colwell’s daughters
continue to be bound. We can find no support for either theory.
This appeal involves a question of contract interpretation. See Park-Lake Car Wash,
Inc., v. Springer, 352 N.W.2d 409, 411 (Minn. 1984) (stating that a right of first refusal is
similar to an option contract with a condition precedent). Courts recognize the right of
parties to contract freely and will therefore enforce rights of first refusal as they enforce
other contracts, according to their terms. Dyrdal v. Golden Nuggets, Inc., 689 N.W.2d 779,
784 (Minn. 2004).
Kasparek argues that the district court erred in its interpretation of the exception in
the right-of-first-refusal provision by improperly applying the exception for a transfer of a
portion of the property to a family member to a transfer of the entire property. Kasparek
claims that because the TODD conveyed the entire parcel rather than a portion of the parcel,
the right of first refusal was not extinguished by the TODD. However, in claiming that the
right of first refusal “did not carve out an exception for a transfer of the whole parcel,”
Kasparek fails to address how the first sentence of the exception, which provides that the
right of first refusal shall not apply to any sale or conveyance to Colwell’s children, would
not cover a transfer of the entire parcel so long as the transfer was made to Colwell’ s
children.
We agree with the district court’s reading of the plain meaning of both sentences in
the right-of-first-refusal exception because it is unambiguous. Reading both sentences
together affords no means of concluding that the right of first refusal survived the
conveyance of the parcel to the daughters. The right-of-first-refusal exception states that
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if the property is sold or conveyed to children or immediate family members, then the right
of first refusal does not apply; and if a portion of the property is transferred to children or
immediate family members, the right of first refusal applies to any remaining portion not
transferred. This necessarily means that the right of first refusal no longer exists for
property conveyed or transferred to family members. Thus, the district court correctly
determined that when the entire property is transferred to immediate family members,
“there is no property remaining to which the right of first refusal would attach.”
Kasparek claims that the district court ’s interpretation requires an impermissible
inference applying the exception language about a partial transfer to a transfer of the entire
parcel. To the contrary, we observe that Kasparek can point to no language or provision
in the contract stating that the right of first refusal should survive a transfer to the seller’ s
immediate family when the exception language provides just the opposite.
Alternatively, any conclusion that the right of first refusal survived the transfer asks
us to accept Kasparek’s assertion that a right of first refusal is a property right that runs
with the land to bind a successive owner—an assertion not supported by our jurisprudence
on rights of first refusal. We have held that a right of first refusal is not an interest in real
estate; rather, a right of first refusal “ only grants the holder the option of purchasing the
property if the owner of the subject property receives an offer from a third-party
purchaser.” Hempel v. Creek House Tr., 743 N.W.2d 305, 313 (Minn. App. 2007) (Hempel
I). “And even when a right of first refusal ripens into an option, this does not convey title.”
Id. (citing M.L. Gordon Sash & Door Co. v. Mormann, 271 N.W.2d 436, 439 (Minn.
1978)).
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Our conclusion that the contract language demonstrating the parties’ intent controls
the right of first refusal’s transferability is consistent with our precedential and
nonprecedential opinions in the Hempel line of cases and the nonprecedential Stuart v.
Stuart case, which are cases that the parties addressed.1 See Hempel I, 743 N.W.2d at 305;
see also Hempel v. Creek House Tr., No. A08-1288, 2009 WL 1919612, at *1 (Minn. App.
July 7, 2009) (Hempel II) (“[A] right of first refusal is a contractual right, not an interest in
land, and therefore does not run with the [subject property] to impose obligations on owners
successive to [the owner who entered the agreement].”), rev. denied (Minn. Sept. 29,
2009); Stuart v. Stuart, No. A12-1044, 2013 WL 490825, at *7 (Minn. App. Feb. 11, 2013)
(stating that a right of first refusal may be transferrable to a successive owner, but only
where “the contract language and the facts establish that the parties intend that resul t”),
rev. dismissed (Minn. Sept. 17, 2013). The cases from other jurisdictions that Kasparek
cites as persuasive authority are factually dissimilar to the instant matter and do not support
his argument that a right of first refusal is an encumbrance on the land.
We conclude that the district court did not err in granting summary judgment for the
Braiths. We further agree with the district court’s determination that all remaining issues
hinge on the enforceability of the right-of-first-refusal agreement and that because the right

1 Nonprecedential opinions are not binding and are only considered for their persuasive
value. Dynamic Air, Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993); Dyrdal,
672 N.W.2d at 586 n.1 (citing Dynamic Air for the principle that nonprecedential opinions
have only persuasive value).
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of first refusal was extinguished as a matter of law, no issues of material fact remain. We
therefore need not reach the other issues Kasparek raises.
Affirmed.