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-----Original Message-----
From: Jack G. Conrad [mailto:jackgconrad @]
Sent: Thursday, April 27, 2006 11:31 PM
Subject: Minnesota Court of Appeals -- Oral Arguments -- Tollefson Developments vs. McCarthy Estate

Dear Friends of the Eagan Core Greenway,

Earlier this month, the Minnesota Court of Appeals heard Oral Arguments in the Tollefson Development -- McCarthy Estate litigation regarding 60 acres of the historic 120 acre+ McCarthy Farm. Recall that the Farm serves as the northern bookend of the Eagan Core Greenway.

John Ward was at the hearing and this is what he had to report.

Submitted by John Ward (April 2)
Critiqued by Roberta Conrad (April 5)
Resubmitted by John Ward (April 21)
Reviewed by Roberta Conrad (April 25)

---Jack Conrad

Greetings All,

This is an update on the most recent legal events in Patrick McCarthy’s series of court cases.

[N.B.: Patrick wants no media attention but he looked at a version of this report and is comfortable with our group receiving the details. ]

Tollefson Development vs. The Estate of James McCarthy

A. Background: Brothers John and James McCarthy, first generation Irish Americans, filed a claim on the current McCarthy farm in 1855. The farm has been in the McCarthy family since that time. Our Mr. McCarthy is the great-grandson of the first James McCarthy.

In 2000, Patrick and his brother James lived on the farm which they co-owned. By that I mean mutually owned in the sense that two people jointly own a house, and each has an equal share of the value but the individual rooms are not in a single person’s name.

James McCarthy was wooed by Tollefson Development and agreed to sell 60 acres to them for development. The land selected was most of the portion of the farm north of Wescott, roughly between Glacier Hills Elementary School (which used to be part of the farm) and nearly to the intersection of Wescott and Lexington.

An agreement was signed by James McCarthy and Tollefson but stalled as Patrick refused to join in a legal division of the farm. By Patrick’s account, his brother did not understand the details of the contract and had changed his mind about the sale. Before the final court decision on the validity of the sale, James died.

The legal battle continued though as Tollefson initiated further legal action that was settled in Patrick’s favor in 2005. Patrick suspected at the time there would be more court action and he was right.

This latest stage in the Tollefson--McCarthy litigation occurred before the Minnesota Court of Appeals on March 30th. The Court heard oral arguments from the lawyers on both sides about Tollefson’s appeal from the latest lower court ruling against it.

B. Tollefson’s Position: James McCarthy signed an agreement to sell the designated 60 acres of land to them. This agreement included requiring "cooperation" by James to complete the sale. The Tollefson attorney noted that James said, "I didn’t agree to sue my brother" but he did have his own attorney review the contract before signing and the contract is binding.

C. McCarthy’s Position: Mr. McCarthy is adamantly opposed to any division of the farm. Over the years the City of Eagan has taken portions of his farm for a school, a water purification center, and I think a pumping station for the stormwater system in Eagan---not to mention laying large pipes to incorporate his ponds into the stormwater system. Our group started when the City explored taking the whole farm along with Patrick Eagan Park for a golf course. Patrick remains disgruntled and is suspicious of any attempts to acquire his land. The McCarthy attorneys stated that James refused to sign a complaint against his brother as "I didn’t agree to sue my brother" and, without that signature, lower courts have decided that Tollefson has no legal claim. Also, James had an eighth grade education and parts of the agreement (possibly handwritten) may have been added after his attorney reviewed the document.

D. The Appeals Court: This is a different type of court, each side’s attorneys give all information from previous cases to three judges for review prior to oral arguments. The presentations are short (Tollefson had 15 minutes, McCarthy 15 and Tollefson the final 5 minutes) and are mostly opportunities for the judges to ask questions about the case. Tollefson (meaning the attorney for Tollefson) said that James is legally bound to keep this agreement to sell the sixty acres, he agreed (in Tollefson’s interpretation of the signed agreement) to "divest" (i.e. take) the land from Patrick. He also noted that James agreed to let Tollefson have control over the divesting process although James would be financially responsible. The court noted that only the State of Minnesota can partition the land (there was no will) and Tollefson would get only 30 of the 60 acres. As this is the case, James (everybody spoke as if James McCarthy was still alive) has no way to insure that you get the sixty acres; this is a "burden" (sounded like a legal term) on him. Tollefson responded repeating that James signed an agreement. The court noted that there is no "plain text" on this issue and asked Tollefson if there was a "factual argument by law"? He said that "cooperation" covers this type of argument.

A previous court has decided that Tollefson has no right to sue Patrick for the land; only James can do that. Hence Tollefson is asking the court to agree that the "cooperation" in the agreement James signed

E. Additional Notes: McCarthy’s attorney noted that a previous court ruled Tollefson has no legal standing to force any partition of the land and the agreement James signed (the "cooperation" one) cannot be stretched to allow any partition. He noted Tollefson has the option to take out a lien on the land for, I think, first option to purchase if the land comes up for sale.

F. Final Impressions: This was legally intense, both attorneys and the three judges were quite familiar with the case and there were strict time limits so little time was given to background details. The sensation was like seeing the last 10 minutes of some TV show and trying to figure out what happened previously.

I have no legal background but I do have an impression. When the court asked about "plain text" and "factual argument by law," my sense was this was a request for established legal data and reasoning, some new information as to why "cooperation" could mean what Tollefson claimed it entailed in this case. Tollefson’s answer was just a repetition of their assertion, there was no new information offered on this key point.

The court, I speculate, was uncomfortable (and will rule for Patrick) allowing Tollefson (or I suppose anybody) use the non-specific term "cooperation" to mean whatever they decided was legally necessary. If this is the case, Patrick McCarthy will have essentially prevailed over Tollefson no less than four times (twice at the County Court level and twice at the Minnesota Court of Appeals level---one sequence in conventional court, the other in probate court). The only recourse that Tollefson would have remaining is to appeal to the Minnesota Supreme Court. It's no secret that Tollefson has been trying to run up Patrick's legal bills and win, if necessary, by wearing Patrick down. Fortunately justice has thus far been on Patrick's side, and there comes a time when the less than scrupulous Tollefson will have to accept his losses, lick his wounds, and move on.

The Court of Appeals has 90 days to finalize their decision.

John Ward

Friends of the Eagan Core Greenway

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