*1 fully paid impairment compensa- had been
tion, compensation post-injury due when
employment suitable. We believe the agreement
medical records and settlement prima showing
establish a facie of cause justify reopening
sufficient to the award.
We therefore reverse the denial of the
petition to vacate the award and remand purposes setting aside award granting hearing.
Reversed remanded. $1,200
Employee is in attorney awarded
fees. AND
HOUSING REDEVELOPMENT
AUTHORITY of the CITY of ST.
PAUL, Petitioner, Appellant, LAMBRECHT,
Geraldine M. et
al., Respondents Below, Kelly’s, Inc., Respondent.
No. C7-01-1919.
Supreme Court of Minnesota.
June *2 (Shan-
ment against Kelly’s, Inc. non Kelly’s). determined that could establish a claim damages as *3 law; event, matter and in the claim precluded by certain lease language acceptance and the of relocation benefits by Kelly’s. The court appeals grounds, reversed on all finding three issues of remain fact as to wheth- er a claim for concern existed and that neither the lease language nor the acceptance of relocation pre- benefits recovery. granted cluded review only on the limited issue whether the district in holding erred that Shannon Kel- ly’s was not entitled recover for loss going-concern value.
We reverse the court of on two grounds. We conclude the condemna- tion clause in pre- cluded any recovery for loss of going-con- cern damages language because effectively ended Shannon upon condemnation. addition, we conclude Shannon Kelly’s Margaret K. Marc Savage, J Mander- claim establish its as a matter of seheid, M. Agrimonti, Briggs Lisa properly law and the granted district P.A., Paul, MN, Morgan, appellant. St. summary judgment to HRA. We decline to Sonsalla, Patrick Kelly, J. Sarah J. Kelly address whether Shannon claim is Fawcett, P.A., Paul, MN, & St. for Shan- precluded acceptance by also of reloca- Inc., Kelly’s, non respondent. tion benefits. 30,1997, July adopted
On HRA a resolu- tion authorizing the of Block redevelopment plan of a downtown Block 39 is St. Paul. bounded OPINION Peter, Wabasha, Fifth, St. and Sixth Wabasha, Streets and includes which MEYER, Justice. Kelly’s. housed Shannon Kelly’s appeal This restaurant/brewery arises out the dismissal was a owned James by summary judgment occupied of a lessee’s H. had McGovern and its down- loss of going-concern damages years. in a con- town location for over seven Mc- twenty-five percent demnation The district court also proceeding. Govern owned W.O.A.M., Inc., Redevelopment corporation Housing owned Authority of Saint 395 Wabasha at the time Block 39 was -Paul’s (HRA) adopting motion partial judg- Upon condemned. the resolu- Willernie, tion, began to all of the busi- operating sent letters McGovern HRA affected, name, including nesses W.O.A.M. restaurant under new Manitou Inn). (the notifying of the Kelly’s, them Inn trans- Island offering reloca- pending ferred some assets eater, Inn, tion assistance. such as smoke center bar, glass. island and stained Because the 9, 1997, peti- HRA filed its On October brewery, Inn was not a McGovern was Ramsey County tion in condemnation Kelly’s brewing unable to utilize Shannon October District Court. A equipment storage. and it remained W.O.A.M., knowledge pending with employees number of Kel- Hoyt sold 395 Wabasha Inn. ly’s were hired to work at the *4 That Company (Hoyt). Development Kelly’s into a same entered day, Shannon 1999, July court-appointed In three com- five-year agreement Hoyt. lease with missioners determined that the condemna- a “condemnation clause” contained tion award for 395 Wabasha upon the that terminated allegedly $700,000 estate, value the real for the and clause that allowed $263,000 fixtures, for trade the value the right personal to remove lessee $77,000 Kelly’s going- and for Shannon upon and fixtures termi- trade value, for concern a total award of nation the lease. $1,040,000. award, In their the commis- specify sioners did not how this amount the district court
On December (the Hoyt was to be divided between les- petition for granted HRA’s sor) (the lessee). Kelly’s Shannon All and appointed three commissioners to value parties subsequently appealed to the dis- payment, authorized and property, Kelly’s appealed trict court. Shannon on for all provided for transfer title that the damages the basis awarded properties Block 39. As a re- located on just not com- order, 1998, commissioners did constitute February sult of this on appealed grounds pensation. Hoyt on $100,000 Kelly’s HRA Shannon advanced inadequate the damages were and deposited in and with relocation benefits to commissioners failed award the court for value of district a sum compensation entire to it. HRA award and land.1 McGovern removed fixtures cross-appealed on the basis that the award Kelly’s brewery equip- from his Shannon and ment, bar, eater, contrary to evidence that it center a smoke island improperly included a claim for loss of equipment, equipment, grain kitchen office going concern when no such loss was es- brewery, and related to the and the hops hearing. tablished at the commissioners’ light glass ceiling-mounted stained from a fixture. In November HRA for moved February signed summary judgment McGovern on partial Shannon purchase agreement Kelly’s for Shore Club In claim. Restaurant, motion, support provided Bar & located 301 Stillwa- of its HRA Willernie, Kessler, ter in Minnesota. After affidavit from Robert Di- Road License, liquor Inspections license from the obtaining rector the Office motion, separate summary judgment 1. On a terminated Shannon awarding dismissal and all condemnation fixtures, recovery proceeds Hoyt. to for fixtures concluding Hoyt appeal the lease between did from the court's dismissal of Kelly’s clearly unequivocally the claim. unavailability liquor Protection St. in and Environmental licenses St. Paul. li- Paul, charge executing the office The district noted that two other affidavit, In existed in licenses. his Kessler breweries downtown Paul quor St. many and that other was no reason businesses had con- stated there verted old bars into new have license to establishments liquor could not obtained with the creation the Xcel Energy a bar in a in St. Paul Cen- operate new location ter. The district court also HRA concluded after 395 Wabasha was condemned. could not meet second excerpts from McGovern’s provided also prong of Schutt because it could relocate multiple documents depositions other and, fact, elsewhere McGovern had its motion. support opened a new restaurant elsewhere response, Kelly’s provid- its Second, state. the district court noted McGovern, in which he ed an affidavit that even if Shannon Kelly’s could have attempts his described relocate a valid loss established Paul, in downtown that his St. claim, precluded claim was because of came from block clientele within a one language lease. its and one-half block one radius Finally, the district court also noted He noted in his that he Wabasha. affidavit *5 Kelly’s acceptance Shannon payments Kelly’s able to relocate was not Shannon precluded for relocation benefits it from any attempt Shannon and that to relocate loss of asserting claim. further than one Kelly’s one block to Kelly’s appealed. Shannon The court of irreparable one-half blocks would cause appeals on all reversed three grounds. harm to his business. claimed Housing Redevelopment & Auth. in destruc- the condemnation resulted Lambrecht, City St. Paul v. N.W.2d 645 going tion of concern of his business 157,166-68 (Minn.App.2002). The court of he was not able his because to relocate appeals began by noting in business downtown St. Paul. questions material fact as to remained
Kelly’s argued that val- Kelly’s whether Shannon had sat- business developed by experts ue would be at trial. requirements isfied the under Id. Schutt. No other documentation to these support 166. The concluded provided contentions at the unique that whether the location is or hearing. (the factor) transferable second Schutt is a The district court motion HRA’s fact question by jury to be resolved partial summary judgment for on three question rather than of law to decided be First, grounds. it concluded that Therefore, court. by the district Id. could not claim Kelly’s assert a valid had in improperly engaged district court going concern because it could not denying Kelly’s fact-finding prong either set forth establish of the test claim. The further determined Schutt, in City Minneapolis v. 256 accep- language neither lease nor the (Minn.1977). N.W.2d 260 The district relocation precluded tance of benefits court concluded that Shannon could for loss of prong going- not meet first its because appealed. concern. Id. 167-68. HRA primarily concern value did not come location, enjoy monopoly, its it did not in a party seeking compensation its A (a) captive, were not prove customers it was not action must and there unique, they was no indication was had interest in the condemned (b) precluded from relocating property; because of the the interest was taken 546 Naegele in the course of the con- advance to such termination.” government (c)
demnation; Minnesota, the interest taken is Adver. Inc. v. Outdoor Co. of Saugen, Minnetonka, State v. 283 compensable. See 281 Minn. Village of (1969). (1968). 39 Be- N.W.2d Minn. dispute gov- do not parties cause the provided that: Block 39 in the course of ernment took parties hereto Condemnation. two issues to be decided if agree premises, leased had an inter- are whether Shannon thereof, or appropri- shall be taken time of condem- property est public by any public or ated for use that interest com- nation and whether quasi-public authority during the term pensable. lease, of this that this lease shall termi- by addressing whether begin We appropria- the date such nate. Kelly’s had an all tion and condemnation proceeds time of property at the con condemned Lessor; property shall be the sole it is requires Because this issue demnation. if agreed further this lease is termi- interpretation provisions, contractual we taking nated because of a such [sic] Progressive de novo. review this issue monthly rental rel. v. Widness ex
Specialty Ins. Co. Wid the month which (Minn.2001). ness, prorated occurs shall taking between Generally, upon condemnation of parties hereto. body, a property government tenant added.) (Emphasis examined a similar in the award of the is entitled to share Korengold provision extent of the valuation of to the *6 358, 254 Minneapolis, Minn. 95 N.W.2d v. Petty See United States such leasehold. (1959). 112 involved Korengold a condem- 378-79, Co., 372, 66 Motor 327 U.S. S.Ct. proceeding by nation the of Minne- Zitter, 596, (1946); Jay 729 M. 90 L.Ed. apolis public library for a site in downtown Construction, Validity, Stat Effect of Minn, 359, Minneapolis. 254 at N.W.2d 95 Expressly ute or Lease Provision Govern at A dental a tenant in one of 113. lab was Compensation ing Rights and Lessee of buildings. the condemned Id. The owner upon Property, Condemnation Leased of signed of the dental lab had lease con- (1994). 327, agree 22 ALR5& 350 A lease taining following provision: the what containing commonly ment is re if the agrees The tenant further may a “condemnation clause” ferred as thereof, premises, any part or demised rights the of the tenant further determine improvements or any of the Zitter,
in the a condemnation. 22 event of they part, which form a shall be taken that a (observing ALR5th at 350 condem use, public for any street or other or may provide that the nation clause lease during shall the lease continuance this upon condemnation, automatically or ends destroyed public be action of the the lease could be cancelled at the authorities, then term this lease and the option of or that or all party, some thereupon demised shall terminate. are to the land rights assigned tenant’s lord). 359-60, Id. at When the lease contains clause at 95 N.W.2d 114. We “automatically damages equipment terminates the tenant for [the lease] denied land, and fixture upon condemnation lessee removal and relocation because compensation no for left tenant is entitled to the loss condemnation clause interest, compensable in the agreed of his leasehold since he “without
547
ment, finding
Id. at
95
premises.”
the evidence
condemned
was suffi-
claim,
denying
we
N.W.2d
cient to withstand a motion for summary
adopted
general
rule that if a tenant
judgment
concluding
that the Schutt
agrees
automatically
to a
clause that
lease
questions
were
factors
fact to be re-
the time of condem-
terminates
lease
by the jury
questions
solved
than
rather
“
nation,
which
right
‘the tenant has no
law to be decided by the district court.2
beyond
taking
can be
persists
”
appeal
order
nothing.’
Id. at
95
entitled
summary judgment, we examine whether
Co.,
(quoting Petty
N.W.2d
115
Motor
any
there are
genuine issues of material
376).
327 U.S. at
fact,
party
whether either
is entitled to
clause in
law,
as a
judgment
matter of
and whether
substantially
is
same
application
the lower court erred in its
lease term in Koren-
corresponding
Pergament
See
v. Loring
law.
Proper
Kelly’s attempts
to distin-
gold.
Ltd.,
ties,
(Minn.
N.W.2d
Korengold from the instant case be-
guish
1999);
Anderson,
Lubbers v.
Korengold
cause
involved
lessee’s
(Minn.1995).
Summary
instant claim one for
for fixtures and the
is
appropriate
when
record
shows a
value.
Kel-
lack
complete
proof
essential
ly’s
persuasive.
argument is not
Whether
Lubbers,
plaintiffs
element of the
claim.
fixtures, equipment,
claim is
or loss
(holding
at 401
that to
estab
concern, the
condemnation clause
lish a
issue material
fact the
unequivocally terminates Shannon
nonmoving party
merely
cannot
make con-
rights
property
at the time
con-
clusory
explain
unverified
statements
condemnation clause
demnation. The
might
what evidence
established at tri
be
to de-
designed
al).
rights
party upon
each
scribe
events.
Shan-
occurrence
certain
Had
Under both the Minnesota and fed
rights
non
intended to retain some
constitutions, private property
eral
cannot
after
just compensation,
without
taken
but
through
could have retained those rights
*7
no
that
requirement
compensation
there is
that
agreement.
the lease
We conclude
every
be
taken.
paid
interest
See
away
contracted
all its
States,
Laundry Co. v. United
338
Kimball
rights
any
in the
claim
including
69
U.S.
S.Ct.
tion,
intangi-
City Lansing
value is too
customer
v.
the
Mich.App.
the
68
52-53
property under
consti-
to constitute
ble
(1976)
tution,
(finding
going
damages resulting
concern when
or
amount
the
attempts
prevented by
specula-
relocation
were
interest is too
from the loss of this
action).
government
Schutt,
relocation
result in
harm
would
questions
are
the jury.
decided
Id.
As
long
to the interest.”
at 265.
relocated,
potentially
long
power
can
be
We have
held that the
business
government
has
there
courts have held
determine whether
has been
compensable
taking
not taken
interest
under
is vested
and is
constitution,
though
purview
jury.
even
within the
owner
State
Motel, Inc.,
1, 4-5,
goodwill of the
Prow’s
285 Minn.
171
can show that the
business
(1969)
are no
85-86
“that the
damage
(holding
suffered
there
suit N.W.2d
places
power
proper
be
able
to which
business could
determine whether some
Laundry,
ty right
Kimball
of a
has been taken or
relocated. See
338 U.S.
landowner
Am.Jur.2d,
11-12,
1434; 26
in a constitutional
vest
damaged
[is]
69 S.Ct.
sense
(1996).
court”);
Am.Jur.2d,
§
ed in
trial
27
Eminent Domain
335 at
see
(1996)
§
Domain
Under circumstances where
business Eminent
163-64
relocated,
in general
potentially
(stating
can
condem
district
only
physical proper
duty
nation has
taken
“has the
such issues as
determine
prevented the
ty
legal authority
and has not
business
condemnor’s
to take
thereon,
actually moving
purpose
his business.
and the limits
of the
owner
11-12,
Laundry, 338
taking,
necessity
expediency
Kimball
U.S.
title”).
(stating
questions
that while the
taking,
S.Ct.
business
Once
may
ques
has
trial court
owner
suffer
loss because he
determines
threshold
location,
taken,
difficulty finding another
tion whether an
has
suitable
interest
been
speculative
type
parties present
this
loss is “so
then the
evidence of the
alleged
proof
justifiably
loss
may
jury
of it
be exclud
of that
to the
*8
court).
by
But see
compensa
ed”
the district
Sau
determination of the amount of
Minn,
Minn,
410, 169
Motel,
at
gen, 283
42-43 tion due. See Prow’s
6-7,
(awarding
86; Am.Jur.2d,
going-concern damages
Em
171 N.W.2d at
§
attempts
because the business owner’s
to inent Domain
618 at 164.
conclude
refused);
court,
jury,
power
obtain a
that
liquor
new
license were
not the
has the
Prescriptions,
to
factors to
apply
Detroit v. Michael’s
Schutt
determine
compensable
143 Mich.App.
373 N.W.2d
225 whether a
interest exists.
(1985) (finding
appeals
concern
The
erred
it con
loss
where
when
segments
entire
of a
and
that
unique
residential
busi
cluded
“whether the location is
ness
trier
community
drug
question
eliminated
store’s
or transferable is a
for the
Lambrecht,
required
of fact.”
166.
to
secure
alternate downtown
location.
than
unsup-
Other
McGovern’s
court of
We reverse the
hold
affidavit,
ported
Kelly’s
has not
apply
the district court must
provided any
showing
evidence
that it was
two-prong
any
Schutt
test to
for loss
unable to relocate. See
Laundry,
Kimball
as a matter of law
going concern
before
properly presented all behalf and on behalf of others case, reviewing we are sum- this situated, similarly Respondents, mary the district undisputed on court matter of law as a decision facts. district court based its The EXPRESS, LAKEVILLE MOTOR no issue premise on the there was INC., Petitioner, Appellant. ruled presented then of material facts No. C5-02-276. law that the Schutt factors as a matter of Supreme Court of Minnesota. Furthermore, Schutt had not been met. undisputed on cross also involved facts June 2003. judgment. motions unnecessary It is and' N.W.2d at in all
improper to conclude therefore concern alleging
other cases jury apply is for the court and not
the Schutt factors in all circumstances. majority authority
There no cited
supporting proposition this law. engages improper factual
majority also simply reverse the
finding. should and affirm the district undisputed pre- facts based did err as a
sented and hold the court the facts of this case.
matter of law under
PAGE, (concurring specially). Justice I
I with agree concur the result. Gilbert, however, upon con-
Justice have that Shannon
cluding the condemned have
nothing more needed to be
been said. (concur-
ANDERSON, H., Paul Justice
ring specially). join special
I concurrence of Jus-
tice Page.