may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
Metro Center Corp., et al.,
City of Golden Valley, et al.,
John Doe, et al.,
Filed January 20, 1998
File No. CT948682
Dennis L. Peterson, Laura L. Krenz, Peterson, Fishman, Livgard & Capistrant, P.L.L.P, 3009 Holmes Avenue South, Minneapolis, MN 55408 (for appellants)
Allen D. Barnard, Ann E. Walther, Best & Flanagan, 4000 First Bank Place, 601 Second Avenue South, Minneapolis, MN 55402-4331 (for respondents City of Golden Valley and City of Golden Valley Housing and Redevelopment Authority)
Lawrence A. Moloney, Doherty, Rumble & Butler, 3500 Fifth Street Towers, 150 South Fifth Street, Minneapolis, MN 55402 (for respondent Schectman)
Considered and decided by Peterson, Presiding Judge, Kalitowski, Judge, and Holtan, Judge.
This case arises out of a purchase agreement entered into by Metro Center Corporation (MCC), Norman Kerr (Kerr), and the Golden Valley Housing and Redevelopment Authority (HRA). On appeal from the trial court's grant of summary judgment in favor of HRA and the City of Golden Valley (respondents), MCC and Kerr (appellants) argue the trial court: (1) erred in granting respondents' motion for summary judgment because disputed and genuine issues of material fact exist to support a claim for breach of contract; and (2) abused its discretion in refusing to allow appellants additional time to conduct discovery for the purpose of showing intentional interference with a contractual relationship. We affirm.
Between March 1987 and April 1990, HRA actively sought to purchase the property. At the same time, appellants negotiated with other purchasers and developers, and pursued their own plans for development. In 1988, appellants attempted to form a limited partnership with a prospective buyer. However, the plans fell through because of alleged rumors that Golden Valley and HRA were planning to take the property.
On July 6, 1989, HRA filed a petition in condemnation to acquire part of the White House property. On July 24, 1989, HRA filed a notice of intent to take title to, and quick take possession of, two small parcels of the White House property. HRA's actions effectively killed an agreement between appellants and a second prospective buyer. The quick take was scheduled for November 9, 1989. However, on November 8, 1989, appellants and HRA entered into a purchase agreement for purchase of the White House property. The purchase agreement provided in pertinent part:
8. This Purchase Agreement and the sale hereby made, is contingent upon HRA's determination, in the exercise of its sole discretion, that the soils of the Property do not contain hazardous and/or toxic wastes or other contaminants at levels or amounts which make impracticable the use of the Property by HRA for its intended purpose. If HRA, in the exercise of its sole discretion, determines that the said soils are unsatisfactory, it may notify Metro in writing at the address specified below of its election to cancel this Purchase Agreement and thereupon this Purchase Agreement shall be null and void and of no further force or effect whatsoever and neither party shall be liable in damages to the other.
If HRA elects to cancel the Purchase Agreement, the pending condemnation proceedings in Hennepin County District Court shall go forward as now constituted * * *.
After several inconclusive environmental investigations were performed, an engineering company issued a report, which found high concentrations of chemical pollutants in the soil and groundwater on the White House property. After concluding remedial action would be required at the site prior to any redevelopment, HRA cancelled the purchase agreement. HRA also informed appellants it was withdrawing from the condemnation action.
In the meantime, the White House property had fallen into a state of disrepair. On May 1, 1990, Golden Valley's city council issued an order requiring appellants to demolish and remove the building on the White House property. Around the same time, appellants and a third prospective buyer signed a purchase agreement for the White House property. However, Golden Valley filed a motion to enforce its May 1, 1990, order, and the deal fell through. Eventually, appellants lost the White House property due to tax forfeiture.
On April 14, 1993, appellants served a summons and complaint on respondents, alleging respondents: (1) were responsible in contribution under the Minnesota Environmental Response and Liability Act (MERLA); (2) were liable under eminent domain for taking the property without just compensation; (3) breached its contract with appellants; (4) were negligent in allowing contaminants to reach appellants' property; (5) were liable to appellants in trespass; (6) were liable to appellants in nuisance; and (7) tortuously interfered with appellants' contractual and business relations. This appeal follows the trial court's grant of summary judgment in favor of respondents on all counts in the complaint.
A trial court has great discretion in granting continuances under rule 56.06, and will not be reversed absent abuse of that discretion. See Rice v. Perl, 320 N.W.2d 407, 412 (Minn. 1982) (concluding trial judge has great discretion to determine procedural calendar of case under rule 56.06); Kissner v. Norton, 412 N.W.2d 354, 358 (Minn. App. 1987) (holding trial court's refusal to grant continuance was not clear abuse of discretion).
Appellants argue the purchase agreement unambiguously requires respondents to acquire the White House property through the existing condemnation proceeding, if the agreement were cancelled. We disagree. The language of the purchase agreement expressly provides the pending condemnation proceeding shall go forward as now constituted if HRA elected to cancel the purchase agreement. The phrase "as now constituted" means "as presently set up or established." See Webster's New Universal Unabridged Dictionary 391, 1226 (Jean L. McKechnie ed., 2d ed. 1983) (defining "now" as "the present time" or "at this moment" or "existing at the present," and "constitute" as "to set up; establish"). This language is clear and unambiguous. The purchase agreement does not require respondents to acquire the property by completing the condemnation proceedings, if the agreement were canceled. Instead, the agreement merely requires that the parties return to their pre-purchase agreement position. Because the parties' pre-purchase agreement rights are not affected by the contract, respondents could properly dismiss the condemnation proceeding. See County of Hennepin v. Mikulay, 292 Minn. 200, 211, 194 N.W.2d 259, 266 (1972) (concluding where possession has not been taken, no right to payment has vested, and therefore, condemnor still has right to abandon); State by Lord v. Myhra G.M.C. Truck & Equip. Co., 254 Minn. 17, 19, 93 N.W.2d 204, 205 (1958) (concluding in absence of statute, condemnor can discontinue condemnation proceeding at any time before rights of parties have reciprocally vested). Under these circumstances, the trial court did not err in concluding respondents did not breach the contract, and properly granted summary judgment in favor of respondents.