This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Diffley Square Partners LLP

Burnsville Heights Centre,



Thomas G. Roberts, et al.,


Filed January 6, 1998


Holtan, Judge**

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

Dakota County District Court

File No. C3-96-10450

Robert J. Bruno, Robert J. Bruno, Ltd., Suite 107, 1601 East Highway 13, Burnsville, MN 55337 (for respondent)

Jon R. Hawks, Jon R. Hawks, Ltd., Suite 535, 7301 Ohms Lane, Edina, MN 55439 (for appellant)

Considered and decided by Schumacher, Presiding Judge, Amundson, Judge, and Holtan, Judge.



Appellants dispute the trial court's order granting summary judgment, contending that the contested easement agreement: (1) contained ambiguous terms; (2) contained a condition precedent to obligation to pay maintenance costs; and (3) was modified by the parties' course of conduct. Appellants also claim that the trial court abused its discretion in awarding respondent $3,616.83 in maintenance costs and attorney fees. We affirm.


This lawsuit arises out of a disagreement over the interpretation and application of language contained in an easement agreement governing Blackhawk Shopping Center in Eagan, Minnesota. There are seven "lots" at the shopping center. Respondent is the owner of developed lots 1, 2, 6, and 7. Appellants own lot 3, the only undeveloped piece of land on the entire parcel.

The parties' predecessors in title entered into an agreement that created roadway and access easements for the benefit of the owners of the lots at the shopping center. Pursuant to the agreement, each lot owner is to pay a specified percentage of the maintenance expenses of the easement. The percentage of expenses allocated to appellants' lot is 28.27%. Respondent sent appellants an invoice in the amount of $1,959.59 for their 28.27% share of expenses paid through March 1996.

Appellants failed to pay the amount for expenses incurred. The trial court granted summary judgment for respondent and awarded damages of $2,037.58 for maintenance costs and $1,579.25 in attorney fees.


On appeal from summary judgment, this court must determine (1) whether any genuine issues of material fact exist, and (2) whether the lower court erred in its application of the law. State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990); Admiral Merchants Motor Freight, Inc. v. O'Connor & Hannan, 494 N.W.2d 261, 265 (Minn. 1992). In this case, appellants failed to establish a genuine issue of material fact.

1. Contract Ambiguity

On appeal, a reviewing court may make a determination of whether a contract is ambiguous without deference to the trial court's determination. Blackburn, Nickels & Smith, Inc. v. Erickson, 366 N.W.2d 640, 643 (Minn. App. 1985), review denied (Minn. June 24, 1985). Whether a contract is ambiguous is a question of law. Id. "A contract is ambiguous if it is reasonably susceptible to more than one construction." Id. at 644. The court must give the language of the contract its plain and ordinary meeting. Current Tech. Concepts, Inc. v. Irie Enters., Inc., 530 N.W.2d 539, 543 (Minn. 1995). Parol evidence may not be examined in determining if a contract is ambiguous. See Metro Office Parks Co. v. Control Data Corp., 295 Minn. 348, 351, 205 N.W.2d 121, 123 1973).

Appellants contend the language in the original agreement was ambiguous. They maintain the language "use and benefit" in the agreement was intended by the grantors to be a condition precedent to performance of the terms. The language reads:

The Access Easement shall be for the non-exclusive use and benefit of the owners of the Subject Property, their respective tenants, licensees, invitees, successors and assigns.

(Emphasis added.)

Appellants argue that the obligation to pay a lot owner's proportionate share (appellant's=28.27%) of the maintenance expenses would not occur until his property was developed. Appellants contend that although the triggering act of "developing the property" was not expressly stated in the agreement, its absence was due to scrivener's error, and thus, by mutual mistake, the agreement did not reflect the original drafter's understanding.

Appellants' argument fails because their claim is not supported by the agreement itself. Subsequent owners of property cannot be bound by the unexpressed intentions of previous owners. Grimes v. Toensing, 201 Minn. 541, 545, 277 N.W. 236, 238 (1938) (holding that the unexpressed subjective intention of the parties is never admissible). In this case, appellants would have no way of knowing the unexpressed intentions of the original parties to the agreement. Appellants alleged the original parties to the agreement did not manifest their intention in writing. Respondent was never told of any such unexpressed agreement, and was never given notice that there was a practice that the obligation to pay was not incurred until an owner's land was developed. Respondent had no way of telling who was paying the maintenance by reading and observing the use of the easement. There is no evidence that the maintenance fees were not paid pursuant to the written easement.

Respondent has a right to rely on the written agreement. Therefore, if respondent had no knowledge of any vacations from the agreement, it cannot be bound by it. There was no evidence provided to the court of any such prior practices. The affidavit of one of the original owners, Luther Stalland, is immaterial without the testimony of the other party to the original agreement.

In this case, the language created no ambiguity in the agreement or its application. The language clearly requires the owners of the subject properties to pay a percentage of the maintenance. The language of the agreement makes no mention of development as a precedent to the obligation to pay. Thus, the trial court was correct in awarding summary judgment because there are no material facts in dispute in this case.

2. Attorney Fees

Respondent requested $5,147.30 in attorney fees incurred in both the conciliation court claim in Hennepin County and in the Dakota County court actions. The trial court found that the reasonable attorney fees incurred in the action were $1,579.25 and awarded that amount to respondent. This amount represents work performed by respondent's counsel for prosecution of the action before the venue was changed to Dakota County and incurred as a result of appellants' failure to pay their portion of expenses pursuant to the agreement. Taking into account all of the services, the nature of the work, the nature of the action, and the conduct of the parties, the trial court did not abuse its discretion in determining the appropriate amount of fees.