This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Muller Family Theatres,
a Minnesota General Partnership,


Edward B. McMenomy, Jr.,

Filed January 4, 2000
Anderson, Judge

Dakota County District Court
File No. C7-94-10284

Peter H. Grills, Michael D. O'Neill, Elizabeth I. Goodpastor, O'Neill, Grills & O'Neill, P.L.L.P., 1250 World Trade Center, 30 East Seventh Street, St. Paul, MN 55101-4901 (for appellant)

George C. Hoff, Paula A. Callies, Suite 260, 7901 Flying Cloud Drive, Eden Prairie, MN 55344-7914 (for respondent)

Considered and decided by Short, Presiding Judge, Shumaker, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Muller Family Theatres challenges the district court's grant of summary judgment against its claim that respondent Edward McMenomy tortiously interfered with its prospective business advantage. On appeal, appellant contends the district court erred when it found there was no evidence that respondent tortiously interfered with appellant's prospective business relations. Because the record does not contain evidence that respondent caused appellant's alleged damages, we affirm.


In March 1993, appellant approached the City of Rosemount and proposed to build a multi-screen movie theater. Appellant first submitted a proposal to the Rosemount Port Authority under which appellant would purchase private property and build the theater on that property. Respondent, mayor of the city at the time, recommended that the theater be located in a proposed business park. Appellant then submitted a second proposal which included locating the theater in the business park.

On July 2, 1993, another theater operator, Guetschoff Theatres, Inc. (GTI), informed the city and the port authority that it was interested in developing a theater in the city. On July 6, 1993, the port authority passed a resolution stating they would negotiate exclusively with appellant for a movie theater. Two weeks later, however, the port authority rescinded the resolution and requested proposals from both appellant and GTI. Each submitted a proposal to build a movie theater in the business park. On August 3, 1993, the port authority accepted appellant's proposal. Up to this point, respondent was a strong supporter of the appellant project over the GTI project.

Following the port authority's decision to award the project to appellant, GTI began seeking private land in the city on which to build their theater. GTI negotiated with a local family (the Carlsons) to build a theater on their property. The Carlsons had previously unsuccessfully sought public funding to develop a strip mall on the property. After respondent had a meeting with the Carlsons in which GTI's involvement was discussed, he called a special city council meeting to reconsider the strip mall. The city council discussed the proposed GTI theater on the Carlsons' property. On August 17, 1993, the Carlsons signed a purchase agreement with GTI agreeing to the property for the theater site. The agreement was contingent on GTI obtaining a building permit for the construction of a theater before anyone else. Respondent was aware of this contingency and was also aware both appellant and GTI believed the city could only support one movie theater.

Once the Carlsons became involved with GTI, respondent's support for the appellant's project apparently waned. According to the city's economic development coordinator, in October or November of 1993, respondent asked if there was a way to slow down the appellant project. At a December 7, 1993 city council meeting, respondent raised concerns about an amendment to the zoning ordinance which was necessary for the appellant project to go forward. On respondent's motion, the city council tabled consideration of the zoning amendment. At the same meeting, however, the council approved a preliminary plat of the GTI project.

At a December 21, 1993 meeting, the city council again discussed the GTI project. Although one city council member and the city administrator objected to the expedited handling of the GTI project, the city council granted the necessary approvals for the project. On January 10, 1994, the city council again tabled the proposed zoning amendments for the business park, at Respondent's request. Appellant then abandoned its attempt to construct a theater because GTI had already begun construction of its theater.

Appellant commenced the present action against respondent, the city, and the port authority, asserting numerous claims. The district court granted summary judgment against appellant on a number of its claims. The court, however, denied the summary judgment motions of respondent, the city, and the port authority in which they claimed official and statutory immunity. In an interlocutory appeal, this court held that the parties were entitled to immunity from some, but not all, of the claims against them. Muller Family Theatres v. McMenomy, No. C3-96-296 (Minn. App. Aug. 20, 1996), review denied (Minn. Nov. 20, 1996). On remand, the city and the port authority moved for summary judgment on the remaining claims against them. The district court granted the motions and dismissed those remaining claims, leaving only the claims against respondent to be decided.

A nine-day trial was held on the claims against respondent. At the close of respondent's case, the district court directed a verdict in favor of respondent on all claims but one. The sole remaining claim was that of tortious interference with a prospective business advantage. The issue was submitted to the jury by way of a special verdict form. The jury found that respondent had intentionally and improperly interfered with appellant's prospective contractual relation, but that the interference had not caused appellant's damages. The jury also found that appellant had suffered over $4,200,000 in damages. Yet, because the jury did not find causation, the district court entered judgment in favor of respondent.

Following the entry of judgment, appellant appealed the district court's summary judgment order, directed verdicts, and entry of judgment in favor of respondent. This court held that the summary judgment and directed verdicts were proper. Muller Family Theatres v. McMenomy, No. C3-97-2091, 1998 WL 462357, at * 2-4 (Minn. App. Aug. 11, 1998), review denied (Minn. Oct. 20, 1998). This court, however, reversed and remanded for a new trial on the tortious interference claim, because the jury instructions and the special verdict form were inconsistent. Id. at * 5.

On remand, respondent moved for summary judgment on the tortious interference claim. The district court granted summary judgment, concluding that appellant failed to prove that its damages were caused by respondent.


On appeal from summary judgment, this court must consider whether genuine issues of material fact exist and whether the district court erroneously applied the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). The reviewing court must consider "the evidence in the light most favorable to the party against whom judgment was granted." Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

Appellant initially argues that this court and the district court have both twice decided that there are genuine issues of material fact on the tortious interference claim. But, contrary to appellant's assertions, this court has not yet addressed that issue. See Muller Family Theatres v. McMenomy, No. C3-97-2091, 1998 WL 462357, at * 5 (Minn. App. Aug 11, 1998) (refusing to decide whether the evidence presented at trial was legally sufficient to support appellant's claim), review denied (Minn. Oct. 20, 1998); Muller Family Theatres v. McMenomy, No. C3-96-296, 1996 WL 469346, at * 4 (Minn. App. Aug. 20, 1996) (declining to decide any issues besides those related to immunity), review denied (Minn. Nov. 20, 1996). Appellant is correct in its assertion that the district court twice found genuine issues of material fact on the tortious interference claim. But those rulings have not been reviewed on appeal, leaving the district court discretion to reconsider its prior determinations. See Employers Nat'l Ins. Co. v. Breaux, 516 N.W.2d 188, 191 (Minn. App. 1994). Thus, the district court's prior rulings have no bearing on our review of this legal question.

Appellant next contends that the record contains sufficient evidence to preclude summary judgment on its tortious interference claim. A cause of action for tortious interference with prospective business relations arises when one intentionally and improperly interferes with another's prospective business relation by either

"(a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or
(b) preventing the other from acquiring or continuing the prospective relation."

United Wild Rice, Inc. v. Nelson, 313 N.W.2d 628, 633 (Minn. 1982) (quoting Restatement (Second) of Torts § 766B (1979)). The plaintiff in a tortious interference case bears the burden of proving that the interference was caused by the defendant. Id. at 632; Hunt v. University of Minnesota, 465 N.W.2d 88, 95 (Minn. App. 1991).

In the present case, the district court granted summary judgment in favor of respondent, finding appellant presented no evidence establishing that respondent caused its damages. Although causation is normally a jury question, if reasonable minds could arrive at only one conclusion, summary judgment is appropriate. Lubbers v. Anderson, 539 N.W.2d 398, 402 (Minn. 1995).

The record sufficiently documents a fact issue as to whether the actions of the city council and port authority slowed down the process for appellant and accelerated the process for GTI. Necessary approvals for the appellant's project were delayed, while the approvals for GTI were granted on an expedited basis. That, in turn, allowed GTI to begin construction before appellant and forced appellant to abandon its theater project.

The record also contains evidence that respondent had a relationship with the Carlson family and that he wanted the GTI project to succeed to the detriment of the appellant project. The critical question, however, is whether there are facts to support appellant's allegation that respondent did, in fact, prevent the appellant's project from going forward.

Appellant contends the district court relied on an overly narrow view of causation in group decision-making. We disagree. The district court did note that respondent had but one of the five votes on the city council and had but one of the seven votes on the port authority. Thus, his vote alone was insufficient to delay appellant's project or to expedite GTI's project. The district court, however, did not rely solely on respondent's lack of power to cause city council action or inaction through voting. The district court recognized that appellant could prevail by showing that respondent improperly influenced the other voting members, but found the record did not reflect any such influence.

We agree with the district court that appellant failed to establish its claim. For the appellant's project to succeed, the city council had to approve an amendment to the city's zoning ordinance. That approval required a 4/5 vote of the council. The city council meeting minutes of December 7, 1993, reflect that two of the council members (Staats and Willcox) would have voted against the amendment if a vote had been taken and, thus, the amendment would have failed. The record is devoid of any evidence that the opinions of Staats and Willcox were influenced in any way by respondent. They were not port authority commissioners which approved the appellant's project. And there is absolutely no evidence that respondent communicated an adverse opinion of the project to Staats and Willcox prior to their statements that they would not support a theater in the business park district. Moreover, their concerns are in line with the initial intended purpose of the business park: That the park be used exclusively for industrial purposes. Because appellant is unable to show that respondent influenced Staats and Willcox, the district court did not err in granting summary judgment in favor of respondent on the issue of causation.