This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







Grace Thompson,





AFL-CIO Labor Temple Association, Inc.,




Filed May 7, 2002


Halbrooks, Judge



Olmsted County District Court

File No. C0003247


William L. French, 627 Woodhaven Court NE, P.O. Box 6323, Rochester, MN 55903-6323 (for appellant)


Robert G. Benner, Dunlap & Seeger, P.A., 206 South Broadway, Suite 505, P.O. Box 549, Rochester, MN 55903-0549 (for respondent)




            Considered and decided by Peterson, Presiding Judge, Halbrooks, Judge, and Parker, Judge.*


U N P U B L I S H E D   O P I N I O N


            Appellant Grace Thompson challenges the district court’s grant of summary judgment on her claims that respondent AFL-CIO Labor Temple (1) wrongfully evicted her and/or breached an implied contract, (2) discriminated against her on the basis of gender, and (3) intentionally inflicted emotional distress.  Appellant also challenges the court’s denial of her motion to amend the complaint to include a claim of marital-status discrimination.  Because no issues of material fact exist and the district court did not abuse its discretion in denying appellant’s motion, we affirm.


            Appellant Grace Thompson began renting space in a commercial building owned by respondent AFL-CIO Labor Temple Association, Inc. in 1984 when she purchased “The Broadway Cafe” from its prior owners and obtained their lease rights.  On August 1, 1990, appellant entered into a new, three-year lease with respondent.  By its terms, that lease ran through July 31, 1993, and gave appellant an option to renew for an additional three-year term through July 1996.

            In the summer of 1992, the Minnesota Department of Health informed appellant that she needed to replace the restaurant floor if she wanted to continue operating.  Appellant approached respondent about the matter and respondent agreed to contribute $3,000 toward the estimated $15,000 required to fix it.  Appellant alleges that respondent also orally agreed to give her the option to renew her lease for an additional three years, through July 1999, as a further incentive to make the repairs.  Appellant concedes that there is no document memorializing this agreement.

            On July 1, 1993, one month before the August 1, 1990 lease was to end, appellant sold her business to two of her employees, Robin Keys and Scott Harris.  The purchase agreement included the sale of “[a]ll personal property, equipment, and fixtures” and also “the business name [T]he Broadway Cafe and lease rights with [respondent].”  Appellant received $90,000 and acquired a security interest in “[a]ll equipment, fixtures and inventory and all other personal property related to operation of Broadway Cafe.”  During the negotiations for the sale, Keys and Harris approached respondent and agreed to operate under appellant’s lease for its final month.  On August 1, 1993, Keys and Harris signed a one-year lease with respondent that included a three-year renewal option.

In February 1995, business difficulties forced Keys and Harris to default on the purchase agreement, terminate their lease, and vacate the premises.  Appellant claims that she notified respondent of her desire to exercise her lease rights and begin operating the restaurant again, but that respondent turned her down because it wanted to open up a bar and pool room.  Respondent rented the property to two married couples who planned to operate a cafe. 

Appellant commenced an action by service of the complaint on February 20, 1996.  Respondent answered the complaint, but the matter was inactive for several years.  Respondent moved for summary judgment in February 2001, and appellant responded with a motion to amend her complaint to include claims of marital-status and age discrimination.  The district court denied appellant’s motion to amend and granted respondent’s summary-judgment motion.  This appeal follows.


1.         Summary judgment.


Summary judgment is appropriate when there are no genuine issues of material fact and a party is entitled to judgment as a matter of law.  Minn. R. Civ. P. 56.03.  Thus, on appeal, we examine the record and determine whether any genuine issues of material fact exist and whether the district court erred in its application of the law.  Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn. 1995).  To that end, we review the evidence in the light most favorable to the non-moving party by resolving all factual inferences and doubts in their favor.  Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 672 (Minn. 2001).  But we will not reverse an award of summary judgment when a party fails to make an adequate showing on all the elements of its claim.  Iacona v. Schrupp, 521 N.W.2d 70, 72 (Minn. App. 1994).

A.        Wrongful eviction.

            Appellant claims that her lease rights extended into 1995 because her 1990 lease was never terminated or rescinded and because it contained an option to renew from August 1, 1993 to August 1, 1996.  As a result, she contends that there are material fact issues concerning whether a landlord/tenant relationship existed in March 1995, when appellant notified respondent that she intended to resume her restaurant operations, and whether respondent’s refusal constituted a wrongful eviction.  We do not agree. 

            “Eviction is dependent upon the relationship of landlord and tenant * * * .”  Schrunk v. Andres, 221 Minn. 465, 471, 22 N.W.2d 548, 552 (1946).  Here, there was no landlord-tenant relationship in 1995 when appellant claims that respondent evicted her.  The only written lease signed by appellant ended, by its terms, on July 31, 1993.  Although that lease contained a three-year option to renew, nothing in the record indicates that appellant exercised this option before the lease terminated.  And, in fact, appellant sold the restaurant to Keys and Harris on July 1, 1993, utilizing a purchase agreement that explicitly conveyed any lease rights she had with respondent.

            Lease rights can be surrendered by an operation of law when there is “a condition of fact that is voluntarily assumed and that is incompatible with the existence of a landlord-tenant relationship.”  Provident Mut. Life Ins. Co. v. Tachtronic Instruments, Inc., 394 N.W.2d 161, 164 (Minn. App. 1986) (citation omitted).  Here, appellant sold her business “and lease rights with [respondent]” and moved out in 1993.  Thus, appellant surrendered any lease rights she may have once had well before 1995.  On August 1, 1993, respondent entered into a new lease with appellant’s buyers.  Appellant had knowledge of this and said nothing.  Keys’s and Harris’s lease rights could not have reverted or transferred to appellant when they defaulted on the purchase agreement, because they terminated their lease with respondent.  They had no rights to transfer. 

            Any alleged lease rights arising out of the 1992 floor-repair agreement with respondent fail to survive summary judgment because they were not in writing.  Minnesota’s statute of frauds states that a lease for longer than one year is void unless it is in writing.  Minn. Stat. § 513.05 (2000).  Here, appellant admits that there is no written evidence to support the alleged three-year lease that she believes she received in exchange for paying the majority of the repair cost.  Therefore, any such agreement is unenforceable.

            B.        Implied-in-law contract/promissory estoppel.

            Appellant next asserts that there are factual issues as to whether she had rights to rent the space by virtue of an implied-in-law contract and/or promissory estoppel.  She first argues that the district court erred because respondent did not move for summary judgment on this count and the district court did not specifically address it.  She also contends that her substantial payment for the floor’s repair, coupled with the surrounding facts, entitle her to enforcement of respondent’s alleged promise.

Both respondent and the district court addressed this matter and, thus, appellant’s argument to the contrary is unfounded.  Although appellant did not characterize her claim in the district court as one of promissory estoppel, the district court analyzed appellant’s claim under that doctrine.  We have treated an implied-in-law contract claim as one under promissory estoppel.  See Eklund v. Vincent Bass & Aluminum Co., 351 N.W.2d 371, 378 (Minn. App. 1984) (analyzing an implied-in-law employment contract claim as one of promissory estoppel).

            A promissory-estoppel claim requires the following analysis:

(1) [W]as a clear and definite promise made to the promisee; (2) did the promisor intend to induce reliance and did the promisee in fact rely on that promise to his or her detriment, and (3) must the promise be enforced to prevent injustice?


Schumacher v. Schumacher, 627 N.W.2d 725, 728 (Minn. App. 2001) (citation omitted).  As the third prong indicates, promissory estoppel is an equitable doctrine used to prevent injustice.  Constructors Supply Co. v. Bostrom Sheet Metal Works, Inc., 291 Minn. 113, 120, 190 N.W.2d 71, 75 (1971).  Courts use it to imply a contract where one does not exist.  Grouse v. Group Health Plan, Inc., 306 N.W.2d 114, 116 (Minn. 1981).  Hence, it follows that a promissory estoppel claim is generally improper when a contract, in fact, exists.  Id.; Jara v. Buckbee-Mears Co., 469 N.W.2d 727, 730 (Minn. App. 1991), review denied (Minn. Aug. 2, 1991).  But see Gorham v. Benson Optical, 539 N.W.2d 798, 801 (Minn. App. 1995) (stating that the one exception to this rule is when a party seeks to recover on an at-will employment contract).  In Jara, a union alleged that an employer breached a promise that it made outside of their written agreement.  469 N.W.2d at 728-30.  We upheld the trial court’s dismissal of the claim on the ground that “[t]he law does not permit [a party], through a promissory estoppel claim, to rely on evidence of oral agreements to alter its contract.”  Id. at 730 (citation omitted).

            As in Jara, appellant is attempting to alter the clear terms of her August 1, 1990 lease by relying on an oral agreement that allegedly extended the length of her lease.  Because the law does not permit appellant to do so, summary judgment is appropriate.

            C.        Gender discrimination.


Appellant contends that summary judgment is inappropriate on her claim of gender discrimination because she made a prima facie showing of gender discrimination and respondent failed “to disclose the legal basis for its motion” with a memorandum of law.

            But appellant knew the basis for respondent’s summary-judgment motion on the gender-discrimination claim because respondent set it out in its opposition to appellant’s motion to amend her complaint.  Thus, her contention that summary judgment is inappropriate because she did not have notice of respondent’s argument is unfounded.

            Minnesota has adopted the McDonnell Douglas framework for analyzing discrimination claims and thus requires a party to make out a prima facie case from either direct or circumstantial evidence that infers a discriminatory motive.  Sigurdson v. Isanti County, 386 N.W.2d 715, 720 (Minn. 1984) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824 (1973)).  Minnesota courts can modify the framework’s specific elements as factual patterns and contexts require.  Id.  In order to make out a circumstantial case of discrimination, appellant must show that:  (1) she is a member of a protected class, (2) she sought and was qualified to rent the premises, (3) despite her qualifications, she was denied the opportunity, and (4) respondent later rented the premises to others in a non-protected class that had equal or lesser qualifications.  See Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 442 (Minn. 1983) (establishing a prima facie test).

            Here, there is no dispute that appellant, a female, is a member of a protected class, that she wanted and was qualified to rent the premises, and that she was denied that opportunity by respondent.  But the facts show that respondent ultimately rented the commercial space to two women and two men.  And, in fact, all of respondent’s leases in the record have involved women.  As such, the evidence does not give rise to a fair inference of discrimination and there is no genuine issue of material fact regarding appellant’s claim of gender discrimination.

            D.        Intentional infliction of emotional distress.


In order to prevail on a claim of intentional infliction of emotional distress, one must prove that:  (1) the complained-of conduct was extreme and outrageous, (2) it was done intentionally or recklessly, (3) it caused emotional distress, and (4) the distress was severe.  Kelly v. City of Minneapolis, 598 N.W.2d 657, 663 (Minn. 1999).  Summary judgment is appropriate if “a person does not meet the high standard of proof needed for an intentional infliction of emotional distress claim.”  Strauss v. Thorne, 490 N.W.2d 908, 913 (Minn. App. 1992) (citing Lee v. Metro. Airport Comm’n, 428 N.W.2d 815, 823 (Minn. App. 1988)).

Extreme and outrageous conduct is conduct that is “so atrocious that it passes the boundaries of decency and is utterly intolerable to the civilized community.”  Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 439 (Minn. 1983) (quotation omitted).  Likewise, the distress must be “so severe that no reasonable man could be expected to endure it.”  Id. (quotation omitted).  When the distress complained of is no more than the distress encountered and endured in everyday life, the claim is appropriate for summary judgment.  Cafferty v. Garcia’s of Scottsdale, Inc., 375 N.W.2d 850, 853 (Minn. App. 1985).

Even accepting appellant’s allegations as true, respondent’s conduct in refusing to rent the space to appellant does not rise to the level of being “so atrocious” that it is “utterly intolerable to the civilized community.”  Cf. Venes v. Prof’l Serv. Bureau, Inc., 353 N.W.2d 671, 675 (Minn. App. 1984) (finding that a collection agency acted in an “extreme and outrageous” manner when it told a debtor with medical problems that he was a “deadbeat” and that he should “stay out of Minnesota if [he knew] what’s good for [him] and [his] family.”).

Appellant’s proof of the severity of her emotional distress is also insufficient to meet the high standard established by caselaw.  Appellant testified that she was unable to sleep, experienced headaches, lost money, and cried frequently due to respondent’s conduct.  Although these symptoms were, no doubt, discomforting, the law requires much more.  See, e.g., Hubbard, 330 N.W.2d at 440 (finding that mere allegations of depression, throwing up, stomach disorders, skin rash, and high blood pressure are insufficient to show severe emotional distress); Elstrom v. Indep. Sch. Dist. No. 270, 533 N.W.2d 51, 57 (Minn. App. 1995) (finding that “insomnia, crying spells, a fear of answering [the] door and telephone, and depression” does not constitute severe emotional distress); Eklund v. Vincent Brass & Aluminum Co., 351 N.W.2d 371, 379 (Minn. App. 1984) (finding that humiliation, embarrassment, lost sleep, unsteady nerves, and depression do not constitute severe emotional distress).  The district court did not err by granting summary judgment on this claim.

2.         Motion to amend the complaint.


            Appellant argues that the district court erred in denying her motion to amend her complaint.  Although appellant concedes that her age-based discrimination claim lacks merit, she contends that the district court erred in denying her motion to add a claim of marital-status discrimination because “there was no reason to deny it.”

The district court has broad discretion to permit a party to amend the pleadings and this court will not reverse absent a clear abuse of that discretion.  LaSalle Cartage Co. v. Johnson Bros. Wholesale Liquor Co., 302 Minn. 351, 357-58, 225 N.W.2d 233, 238 (1974).  We have held it is not an abuse of discretion to deny a motion to amend a complaint when the motion is untimely, prejudicial to the other party, and legally deficient.  Davis v. Midwest Disc. Sec., Inc., 439 N.W.2d 383, 389 (Minn. App. 1989).  Here, appellant’s motion fails on all three counts.

            The Minnesota Supreme Court has held that a motion brought one year or more after the original pleading when there was no good reason for the delay was untimely.  See Wessin v. Archives Corp., 592 N.W.2d 460, 468 (Minn. 1999) (upholding the trial court’s denial of a motion to amend a corporate misconduct complaint when the motion was made more than two years after the plaintiff initiated the suit); Peterson v. Sorlien, 299 N.W.2d 123, 132 (Minn. 1980) (upholding the trial court’s denial of a motion to amend a false imprisonment and intentional infliction of emotional distress complaint when the motion was made more than one year after the plaintiff initiated the action); Sheehan v. St. Peter’s Catholic School, 188 N.W.2d 868, 871 (Minn. 1971) (upholding the trial court’s denial of a motion to amend an answer to a negligence complaint when the motion was made more than two years after the defendant served its initial answer).  In this case, appellant brought the motion to amend five years after she commenced this action without providing an explanation for the delay. 

            Second, “[a] major consideration in the trial court’s decision [to grant leave to amend] is the prejudice which may result to the opposing party.”  McDonald v. Stonebraker, 255 N.W.2d 827, 830 (Minn. 1977) (citation omitted).  In Bebo v. Delander, 632 N.W.2d 732, 741 (Minn. App. 2001), we affirmed a district court’s denial of a motion to amend a complaint when it was brought only two months before the scheduled trial, making it difficult for the defense to complete the necessary discovery.  In this case, appellant made the motion at a time when trial was just five months away.  Respondent would have needed to conduct additional discovery on this new claim, including re-deposing appellant, respondent’s officers, and all other relevant parties.  In light of this, granting the motion would have unfairly prejudiced respondent.

            Finally, appellant’s claim of marital-status discrimination is legally deficient.  See Davis, 439 N.W.2d at 389 (finding that a claim in a motion to amend is legally deficient when it is unsupported by the evidence).  The McDonnell Douglas factors must give rise to a fair inference of discrimination.  Sigurdson, 386 N.W.2d at 720.  Here, respondent rented to appellant for nearly ten years while appellant was single—the basis that she now claims respondent used to discriminate against her.  The circumstances do not give rise to a fair inference that respondent discriminated against appellant because she is single.  Because appellant’s motion to amend is untimely, prejudicial to respondent, and legally deficient, we conclude that the district court acted within its discretion in denying her motion.


*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.