Dale A. Hansen, Erickson, Zierke, Kuderer & Madsen, P.A., 114 West Second Street, P.O. Box 571, Fairmont, MN 56031-0571 (for Respondents)

Considered and decided by Peterson, Presiding Judge, Klaphake, Judge, and Forsberg, Judge.[*]

Five Lakes Centre, LLC, owner of the Fair Mall Shopping Center, appeals from a grant of summary judgment to one of its lessees, respondents Tony Garakani and Brian Cook, d/b/a Action Sport. The district court concluded that the parties modified, by their conduct, a notice requirement in the lease. Because the lease was unambiguous and the parties' conduct did not effectively modify the lease, we reverse and remand for entry of summary judgment for appellant.

The parties' lease contains a renewal option requiring the lessees to give the lessor "written notice" of their intent to exercise their lease renewal options. Another paragraph of the lease entitled "Notices" states:

Every notice, demand, request or other communication which may be or is required to be given under this lease or by law shall be in writing and shall be sent by United States Certified or Registered Mail, postage prepaid, return receipt requested, and mailed to the landlord's address.

The lease also includes a "No Waiver" paragraph that states, in pertinent part:

The failure of Landlord or Tenant to insist upon the strict performance of any provisions of this Lease, or the failure of Landlord or Tenant to exercise any right, option or remedy hereby reserved shall not be construed as a waiver for the future of any such provision, right, option or remedy or as a waiver of a subsequent breach thereof. * * * No provision of this Lease shall be deemed to have been waived unless such waiver shall be in writing signed by the party to be charged.

Specifically with regard to modification, the lease contains an integration clause and prohibits modification "except by a writing subscribed to by the party to be charged."

Respondents concede that they mailed their notice to renew their lease by regular mail. We conclude this was contrary to the clear and unambiguous language of the lease requiring certified mail. To conclude otherwise would require this court to redraft several lease terms and would make enforceable contract terms to which appellant never agreed, either orally or in writing. The parties' past conduct of sending monthly statements and rents by regular mail has no bearing on the formality required to exercise a lease renewal option. The need for certainty and definiteness in the delivery and acceptance of such a notice is commensurate with the legal consequences of the notice.

Consequently, on the parties' cross-motions for summary judgment, appellant was entitled to judgment as a matter of law. Respondents did not raise a genuine issue of disputed or material fact. Minn. R. Civ. P. 56.03; see, e.g., Grandnorthern, Inc. v. West Mall Partnership, 359 N.W.2d 41, 45 (Minn. App. 1984) (no genuine issue of material fact where landlord offered no evidence contrary to tenant's supporting affidavit). Therefore, we reverse and remand for entry of judgment for appellant.

Reversed and remanded.

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