This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA
IN COURT OF APPEALS
C3-96-7

Bradley Real Estate Inc. f/k/a Bradley Real Estate Trust,
Respondent,

vs.

Sun Ray Hardware, Inc.,
Defendant,

Cotter & Company,
Appellant.

Filed September 17, 1996
Affirmed
Peterson, Judge

Ramsey County District Court
File No. CI-95-3733

Douglas B. Altman, Altman & Izek, 1600 Foshay Tower, 821 Marquette Avenue, Minneapolis, MN 55402 (for Respondent)

Michael R. Cunningham, Jonathan M. Redgrave, Gray, Plant, Mooty, Mooty, & Bennett, P.A., 3400 City Center, 33 South Sixth Street, Minneapolis, MN 55402 (for Appellant)

Considered and decided by Amundson, Presiding Judge, Toussaint, Chief Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

PETERSON, Judge
On appeal from a summary judgment, Cotter & Company argues that the district court erred in interpreting a guaranty in a lease assignment agreement. We affirm.
FACTS
Beginning in January 1986, Warner True Value Hardware, Inc. (Warner) leased space in a shopping center from respondent Bradley Real Estate, Inc. f/k/a Bradley Real Estate Trust (Bradley). Warner was a subsidiary of appellant Cotter and Company (Cotter), a cooperative of independent hardware store owners. In October 1986, Cotter decided to liquidate Warner and assign Warner's interest in the lease with Bradley to Sun Ray Hardware, Inc. (Sun Ray), a new subsidiary of Cotter.
On October 2, 1986, Bradley, Cotter, Sun Ray, and Warner entered into an assignment agreement and guaranty (agreement). The agreement provided that after the lease assignment to Sun Ray was completed, Cotter intended to sell Sun Ray "on a conditional basis to Richard Mueller" or "to another individual or business entity reasonably acceptable as assignee tenant to Bradley." Paragraph five of the agreement contained the following provision regarding the sale:
In the event that Sun Ray Hardware is sold to Mueller or other entity and the transaction is fully consummated, with no possibility of reversion of ownership, Bradley hereby consents to the anticipated future transfer of ownership of Sun Ray Hardware to Mueller or to such other entity subject to the following conditions:

(a) On the effective date of said transfer to Mueller or other entity, Sun Ray Hardware shall not be in default of any obligation to be performed by Sun Ray Hardware under the Lease or this Agreement;

(b) At least thirty (30) days before the effective date of transfer to Mueller or other entity, that person shall provide Bradley with its current audited financial statement and such other information relevant to the Lease as Bradley may request; and

(c) Bradley may, at its option, require Mueller's personal guaranty of the obligations of Sun Ray Hardware under the assigned Lease.

(d) The finances of any other entity will be reasonably acceptable to Bradley, which may, at its option, require the personal guaranty(ies) of the principal(s) of the other entity; and

(e) Sun Ray Hardware and Mueller or other entity shall have entered into a written transfer agreement, in form acceptable to Bradley, accomplishing the transfer from Sun Ray Hardware to Mueller or other entity.

The agreement provides that Cotter guaranties "performance of all tenant obligations and liabilities under the lease to Sun Ray Hardware." In the event of default, Cotter agreed to pay Bradley damages and expenses incurred in collecting damages, "including reasonable attorney's fees." The guaranty was subject to the following time limit:
Cotter's guarantee hereunder shall apply only to those tenant obligations and liabilities which accrue under the Lease before the later of: (i) five (5) years after the effective date of assignment of the Lease from Warner to Sun Ray Hardware, or (ii) two (2) years after the effective date of the transfer of ownership of Sun Ray Hardware to Mueller or other entity.

The agreement specified an effective date, October 1, 1986, for the assignment of the lease to Sun Ray but did not specify an effective date for transfer of ownership to Mueller or another entity. Cotter contends that the effective date of transfer occurred in December 1986 when Mueller signed a promissory note to Cotter. Bradley contends the effective date of transfer could not occur until the conditions set forth in paragraph five of the agreement were met. Neither Cotter nor Mueller complied with those conditions.
In December 1988, Bradley's senior leasing manager wrote a letter to Mueller regarding signage. The letter stated that the lease currently ran between Bradley and Cotter and that Mueller was not the tenant. The letter also requested that Mueller inform Bradley when the assignment from Cotter was going to occur. In December 1989, Bradley's attorney wrote a letter to Sun Ray in care of Cotter stating that the preconditions for a sale to Mueller had not been met and that nothing in Bradley's records indicated that a sale to Mueller had been consummated. The letter also stated that Bradley continued to operate under the belief that Sun Ray was the lessee and that Cotter's guaranty would continue in effect until two years after a sale to Mueller or an acceptable third party. In June 1991, Bradley's attorney wrote another letter to Sun Ray in care of Cotter. The letter stated that although Bradley presumed the transfer to Mueller had occurred, the effective date would not occur until the conditions in paragraph five of the agreement were met. Bradley states that it did not receive any responses to its letters.
Sun Ray stopped paying rent in September 1994. In March 1995, Bradley began this lawsuit against Sun Ray and Cotter, seeking to collect delinquent rental payments. The district court determined that Cotter was liable to Bradley under the guaranty and awarded Bradley $104,950.09, the unpaid rent owed through August 1, 1995.
D E C I S I O N
On appeal from a summary judgment, this court must examine the record to determine whether any genuine issues of material fact exist and whether the district court properly applied the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). This court must view the evidence in the light most favorable to the nonmoving party. Id.
1. Cotter argues the district court erred in determining as a matter of law that Cotter was liable under the guaranty. The rules of contract interpretation apply to guarantees. American Tobacco Co. v. Chalfen, 260 Minn. 79, 81, 108 N.W.2d 702, 704 (1961). Absent ambiguity, contract interpretation is a question of law. City of Virginia v. Northland Office Properties Ltd. Partnership, 465 N.W.2d 424, 427 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991). "The court's role in interpreting a contract is to ascertain and give effect to the intention of the parties." Metropolitan Sports Facilities Comm'n v. General Mills, Inc., 470 N.W.2d 118, 122-23 (Minn. 1991). When a "contract is unambiguous, the court must deduce the parties' intent from the language used." Id. at 123. The court should construe the contract as a whole and try to harmonize all of the contract's provisions. Chergosky v. Crosstown Bell, Inc., 463 N.W.2d 522, 525 (Minn. 1990); see also American Tobacco, 260 Minn. at 81, 108 N.W.2d at 704 (when construing guaranty, parties' intent must be determined from language used in document, taken as a whole). A contract is unambiguous if it is susceptible to only one interpretation based on its language alone. Lamb Plumbing & Heating Co. v. Kraus-Anderson, Inc., 296 N.W.d 859, 862 (Minn. 1980). Whether a contract is ambiguous is a question of law, therefore, this court is not bound by the district court's decision. Id.
The agreement provides:
Cotter's guarantee hereunder shall apply only to those tenant obligations and liabilities which accrue under the Lease before the later of: (i) five (5) years after the effective date of assignment of the Lease from Warner to Sun Ray Hardware, or (ii) two (2) years after the effective date of the transfer of ownership of Sun Ray Hardware to Mueller or other entity.

The five-year limitation period ended in 1991. The issue in this case is whether the two-year limitation period also expired.
Paragraph five of the agreement provides that Bradley consents to the transfer of ownership from Sun Ray to Mueller or another entity subject to five specified conditions. Until those conditions are met, there can be no transfer to which Bradley consents. One of the conditions expressly refers to "the effective date of said transfer to Mueller or other entity." "[S]aid transfer" is the transfer described in paragraph five, which cannot occur without Bradley's consent. Thus, pursuant to the plain language of paragraph five, no effective date of transfer can occur without Bradley's consent to the transfer.
This interpretation is supported by the agreement as a whole. The purpose of the agreement was to obtain Bradley's consent to a transfer of ownership from Sun Ray to Mueller or another entity. Bradley was unwilling to consent to a transfer unless Cotter or another acceptable entity or individual guarantied performance of the transferee's obligations under the lease. By requiring the conditions in paragraph five to be met before it would consent to a transfer, Bradley could ensure there would continue to be an acceptable guarantor for the lease. Because there was no consent, the conditions in paragraph five were not met, and no effective date of transfer occurred. The two-year limitations period did not begin running.
Cotter argues that the two-year limitations period should not be enforced because the time period was indefinite. We disagree. Cotter knew what conditions needed to be met to trigger the running of the two-year limitations period, and Cotter could have made sure those conditions were met.
2. Cotter argues that genuine issues of material fact exist regarding its defenses of laches and waiver. The defense of laches does not apply unless a party failed to be "'diligent in asserting a known right.'" Gadey v. City of Minneapolis, 517 N.W.2d 344, 348 (Minn. App. 1994) (quoting Aronovitch v. Levy, 238 Minn. 237, 242, 56 N.W.2d 570, 574 (1953)), review denied (Minn. Aug. 24, 1994). Cotter argues Bradley knew or should have known in 1986 that Sun Ray would be sold to Mueller, but it failed to request information regarding Mueller until nearly three years after the sale occurred. Although the agreement stated that Cotter planned to sell Sun Ray to Mueller, Cotter did not submit evidence that Bradley knew or should have known that the sale actually took place. When opposing a motion for summary judgment, a party cannot rely on "general assertions but must demonstrate that specific facts exist which create a genuine issue for trial." Johnson v. Van Blaricom, 480 N.W.2d 138, 140 (Minn. App. 1992).
"A waiver is a voluntary and intentional relinquishment or abandonment of a known right." Montgomery Ward & Co. v. County of Hennepin, 450 N.W.2d 299, 304 (Minn. 1990). The letters Bradley wrote inquiring about the sale and stating that the effective date would not occur until the conditions in paragraph five were met indicate that Bradley intended to preserve its rights under the agreement. Cotter did not present any evidence to support its claim of waiver.
The district court properly determined as a matter of law that the two-year limitations period had not expired and, therefore, Cotter remained liable to Bradley under the guarantee.
3. Pursuant to the agreement, Bradley requests attorney fees on appeal. The agreement specifically provides that Bradley is entitled to expenses incurred in collecting damages, "including reasonable attorney's fees." Bradley, therefore, is entitled to attorney fees on appeal. See Barr/Nelson, Inc. v. Tonto's, Inc., 336 N.W.2d 46, 53 (Minn. 1983) (attorney fees recoverable in litigation when specific contract permits such recovery). Within ten days after the filing of this opinion, Bradley shall serve and file an itemized list of fees incurred in defending against this appeal. Cotter shall serve and file any response within five days thereafter.
Affirmed.