This opinion will be unpublished and

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-97-1491

Metro Center Corp., et al.,

Appellants,

vs.

City of Golden Valley, et al.,

Respondents,

John Doe, et al.,

Defendants,

Irving Schectman,

Respondent.

Filed January 20, 1998

Affirmed

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.

Hennepin County District Court

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.

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

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.

FACTS

MCC owned approximately three acres of land located at 4900 Olson Memorial Highway in Golden Valley, Minnesota (the White House property). Kerr is the president of MCC. The White House property is located in a prime real estate location, and is part of Golden Valley's "Northernwirth Parkway Redevelopment Plan."

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 * * *.

(Emphasis added.)

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.

D E C I S I O N

On appeal from a grant of summary judgment, we determine whether there are any genuine issues of material fact and whether the trial court erred in its application of the law. Minn. R. Civ. P. 56.03; State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990). While we view the evidence in the light most favorable to the nonmoving party, the nonmovant must produce specific facts that create an issue for trial. See Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (concluding reviewing court must view evidence in light most favorable to nonmoving party); Hunt v. IBM Mid Am. Employees Fed. Credit Union, 384 N.W.2d 853, 855 (Minn. 1986) (concluding summary judgment is proper when nonmoving party fails to provide court with specific facts indicating there is genuine issue of fact). We do not defer to the trial court's analysis of purely legal issues. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984). The interpretation of an unambiguous contract is a question of law, which we review de novo. City of Virginia v. Northland Office Properties Ltd. Partnership, 465 N.W.2d 424, 427 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991).

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).

I.

The objective of judicial construction of contracts is to ascertain and effectuate the intent of the parties. Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 66 (Minn. 1979). A contract must be construed as a whole, so as to harmonize all its terms. Country Club Oil Co. v. Lee, 239 Minn. 148, 151-52, 58 N.W.2d 247, 249 (1953). An unambiguous contract provision must be construed according to its plain and ordinary meaning. Midway Ctr. Assocs. v. Midway Ctr., Inc., 306 Minn. 352, 356, 237 N.W.2d 76, 78 (1975). However, it is generally recognized that summary judgment is inappropriate when the terms of a contract are at issue and any of its provisions are ambiguous or uncertain. Donnay v. Boulware, 275 Minn. 37, 45, 144 N.W.2d 711, 716 (1966).

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.

II.

A trial court should grant continuances liberally, particularly when the nonmovant has had insufficient time to conduct discovery. Rice, 320 N.W.2d at 412; see also Minn. R. Civ. P. 56.06 (allowing trial court to grant continuance when party opposing summary judgment cannot present facts essential to justify party's opposition). Appellants argue the trial court abused its discretion by denying them a continuance for the purpose of showing respondents intentionally interfered with three separate contracts. We disagree. It is undisputed that appellants had ample time to conduct discovery. More than 16 months elapsed between the filing of the summons and complaint and the summary judgment hearing, yet appellants failed to depose key witnesses. Furthermore, appellants have failed to demonstrate that additional discovery would lead to new evidence regarding contractual interference. Under these circumstances, we cannot conclude the trial court abused its discretion in denying appellants' motion for a continuance. See Rice, 320 N.W.2d at 412 (concluding when determining whether to grant continuance pursuant to rule 56.06, courts must consider whether party seeking more time was diligent in seeking discovery and was acting from good faith belief that material facts would have been discovered or was merely engaging in fishing expedition).

Affirmed.