Scott J. Zimmer, et al., Appellants,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A17-0836

Scott J. Zimmer, et al.,
Appellants,

vs.
Brett M. Larson, et al.,
Respondents.

Filed January 2, 2018
Affirmed
Hooten, Judge

Hennepin County District Court
File No. 27-CV-16-1557

Paul A. Sortland, Sortland Law Office, PLLC, Minneapolis, Minnesota (for appellants)

Michael A. Klutho, Jessica L. Klander, Bassford Remele, P.A., Minneapolis, Minnesota
(for respondents)

Considered and decided by Larkin, Presiding Judge; Hooten, Judge; and Smith, T.,
Judge.
U N P U B L I S H E D O P I N I O N
HOOTEN, Judge
Appellants argue that the district court erred by granting summary judgment in favor
of respondents and holding that appellants could not produce evidence to prove that but for
respondents’ alleged malpractice, appellants would have obtained a more favorable result
in the underlying real estate transaction. We affirm.
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FACTS
This case focuses on a right of first refusal in a parking lease. In 2006, Resource
Inc. entered into a parking lease with Irwin Baker. Resource rented parking spaces behind
and next to Baker’s building in Minneapolis (the Property). The parking lease contained a
right of first refusal in favor of Resource. Baker is the Landlord, Resource is the Tenant.
The provision reads:
Right of First Refusal. Landlord hereby agrees that during the
term of this Lease, Landlord grants to Tenant a right of first
refusal to purchase a ll o[r] part of the Property, subject to the
following terms and conditions:

a. Notice of Offer. If at any time Landlord desires to sell
all or any part of the Property, and receives a bona fide
offer which it is willing to accept from any person, firm
or corporation, ready, willing and able to purchase any
or all of the Property, then and in such case Landlord
shall immediately give written notice thereof to Tenant
including in said notice the name and address of the
offeror, the price offered, and the term s and conditions
of the offer. Said notice shall be accompanied by a copy
of the offer or other evidence of the offer.

b. Notice of Intent to Purchase. Tenant shall have twenty
(20) business days after receipt of said notice to agree
to purchase the Proper ty covered by said offer at the
price and according to the terms specified in said offer.

c. Loss of Right to Purchase . If Tenant does not exercise
said right to purchase by giving written notice thereof to
Landlord within said period, Landlord may accept s aid
offer and complete said sale to the offeror in accordance
with said offer, after the expiration of said twenty (20)
business day period, which sale shall be subject to the
terms and conditions of this Lease.

d. Revival of Right to Purchase. If the terms of said offer
are changed, then the right of first refusal given hereby
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to Tenant shall be revived and said offer shall again be
submitted to Tenant for the period and in the manner
herein stated.
The parking lease continued until either party terminated it “by providing the other party
with ninety (90) days prior written notice or earlier upon mutual agreement.”
At the time Baker entered into the parking lease, he owned AAA Labor, a day labor
staffing agency he operated at the Property. In 2007, appell ant SJZimmer Inc. purchased
AAA Labor f rom Baker. SJZimmer is a Subchapter S corporation, and appellant Scott
Zimmer is the sole shareholder. After the purchase, AAA Labor leased the Property from
Baker.
In February 2012, Zimmer purchased a secon d property and informed Baker in an
April 2012 letter that he did not intend to renew his lease for the Property, and that he
would be moving AAA Labor to the new location at the end of the lease. Then in June,
Baker contacted Zimmer and asked if he had any interest in purchasing the Property. On
June 13, they met at a restaurant to discuss Zimmer purchasing the Prope rty and “agreed
on the terms” of the sale. The next day, Zimmer sent an email to Baker’s attorney which
summarized the meeting and listed the agreed upon terms. The email read:
I met with [Baker] yesterday and discussed the sale of the AAA
LABOR property to me. . . .
. . . .
My instructions to my attorneys and I also discussed this with
[Baker] was to “draft the standard purchase agreement without
any funny business in it”, I actually told them it could be boiler
plate as [Baker] and I have agreed on the terms and no one is
trying to cheat anyone here.

We agreed on the following terms.

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Sale Price: $350,000
Term: 10 Years
Interest: 4.5%
Payments to start Jan 1st, 2013
No penalty for early payoff
. . . .
My only other concern that [Baker] was going to discuss with
you is any parking lot easements/arrangements [Baker] may
have with the adjoining property owners. [Baker] mentioned
he was going to discuss this with you as well.

Later in the day on June 13, after having met with Baker, Zimmer contacted respondent
Brett Larson, an attorney then with respondent Saliterman & Sieff erman P.C., to draft a
contract for deed to purchase the Property.1
The parties dispute when attorney Larson became aware of the existence of the right
of first refusal in the parking lease. However, it is undisputed that Zimmer did not consult
Larson about purchasing the Property until after his June 13 meeting wit h Baker. A nd,
Larson became aware of the right of first refusal by June 20 because Baker’s attorney
informed Larson in an email that day that the contract for deed needed to be made subject
to the right of first refusal.
On July 3, Baker’s attorney informed Resource of Zimmer’s offer to purchase the
Property. Resource timely notified Baker’s attorney that it was exercising its right of first
refusal to purchase the Property. In spite of receiving this notice, Baker proceeded with
the sale to Zimmer, and on August 23, Zimmer and Baker executed a contract for deed for
the Property. Baker had been experiencing some health issues, and on September 21 he

1 While the email refers to a purchase agreement, the terms contemplate a contract for deed,
which is what Zimmer’s attorney drafted.
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passed away. In March 2013, Resource commenced a civil action against Baker ’s estate
and Zimmer and ultimately obtained a ruling that it had a valid right of first refusal, which
it timely exercised, and that Resource was entitled to sole possession and ownership of the
Property. In February 2016, Zimmer filed this action against Larson and his former la w
firm. On April 12, 2017, the d istrict court granted summary judgment in favor of Larson
and Saliterman & Siefferman , after concluding that Zimmer could not prove that but for
Larson’s alleged malpractice, he would have obtained a better result in the underlying
transaction. This appeal followed.
D E C I S I O N
Our court reviews a district court’s summary judgment decision de novo. Riverview
Muir Doran, LLC v. JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010). In doing
so, we “determine whether the district court properly applied the law and whether there are
genuine issues of material fact that preclude summary judgment, ” viewing “the evidence
in the light most favorable to the party against whom summary judgment was granted .”
Id.; STAR Ctrs, Inc. v. Faegre & Benson, L.L.P. , 644 N.W.2d 72, 76 –77 (Minn. 2002).
While we “must not weigh the evidence ,” we are “not required to ignore [our] conclusion
that a particular piece of evidence may have no probative value, such that reasonable
persons could not draw different conclusions from the evidence presented.” DLH, Inc. v.
Russ, 566 N.W.2d 60, 70 (Minn. 1997).
To succeed on a claim for legal malpractice arising out of a transactional matter, a
plaintiff must satisfy four elements: “(1) an attorne y-client relationship; (2) acts
constituting negligence or breach of contract; (3) that such acts proximately caused the
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plaintiff’s damages; and (4) that but for the defendant’s conduct, the plaintiff would have
obtained a more favorable result in the und erlying transaction than the result obtained.”
Schmitz v. Rinke, Noonan, Ltd. , 783 N.W.2d 733, 738 (Minn. App. 2010), review denied
(Minn. Sept. 21, 2010). If any of the four elements are not satisfied, the plaintiff’s claim
fails. Id. at 739.
In “applying the ‘but for’ test, we must envision what would have occurred but for
the negligent conduct.” Christians v. Grant Thornton, LLP, 733 N.W.2d 803, 812 (Minn.
App. 2007), review denied (Minn. Sept. 18, 2007) . A plaintiff cannot merely speculate
about many positive things that could have happened; rather, a plaintiff must introduce
concrete evidence of what would have happened but for the defendant’s negligence, “ and
what those actions would have reasonably produced.” Id. at 813.
Larson was not involved in Zimmer’s attempt to purchase the Property until after
the June 13 meeting between Baker and Zimmer. If that meeting between Baker and
Zimmer triggered Resource’s right of first refusal, Zimmer cannot establis h that but for
Larson’s conduct he “would have obtained a more favorable result in the underlying
transaction.” Schmitz, 783 N.W.2d at 738. There would have been nothing that Larson
could have legally done that would have eliminated the right of first refusal without
Resource choosing to waive its right—which it would not have done.2

2 Because Resource exercised its right of first refusal, and went to court to enforce that
right, any argument that Larson could have convinced Resource to waive its right of first
refusal “is mere speculation” and is not sufficient to show but-for causation. See Schmitz,
783 N.W.2d at 747.
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Resource’s right of first refusal is contained in a parking lease contract between
Baker and Resource. “Absent ambiguity, the interpretation of a contract is a question of
law.” Roemhildt v. Kristall Dev., Inc. , 798 N.W.2d 371, 373 (Minn. App. 2011) , review
denied (Minn. July 19, 2011). “Whether language in a contract is plain or ambiguous is a
question of law that we review de novo.” Storms, Inc. v. Mathy Constr. Co., 883 N.W.2d
772, 776 (Minn. 2016). “The language of a contract is ambiguous if it is susceptible to two
or more reasonable interpretations.” Dykes v. Sukup Mfg. Co. , 781 N.W.2d 578, 582
(Minn. 2010).
The right of first refusal in the parking lease is triggered “at any time Landlord
desires to sell all or any part of the Property, and receives a bona fide offer which it is
willing to accept. ” (Emphasis added.) After receiving such an offer, “Landlord shall
immediately give written notice thereof to Tenant including in said notice the name and
address of the offeror, the price offered, and the terms and conditions of the offer .” This
language created a right of fir st refusal in favor of Resource . See Park-Lake Car Wash,
Inc. v. Springer, 352 N.W.2d 409, 410 (Minn. 1984) (treating the following language as
creating right of first refusal: “Lessor shall not sell either the leased premises or the said
adjoining premises without first giving Tenant the privilege to purchase the same at the
best bona fide offer by the lessor at any time during the period o r extended period of this
lease.” (alteration omitted)). A right of first refusal is similar to an option contract with a
condition precedent. Id. at 411. When the condition precedent is satisfied, the option
8
springs to life and gives the holder of the right the option to purchase wh atever is subject
to the right.3 Id. at 411–12.
Here, the condition precedent is Baker’s receipt of a bona fide offer that he was
willing to accept. Once Baker received a bona fide offer that he was willing to accept,
Baker had the duty to notify Resource of the offer, allowing Resource to decide whether to
exercise its option to purchase.
Zimmer argues that the terms of the right of firs t refusal in this parking lease and
the law on rights of first refusal require (1) a bona fide offer, and (2) notice to the holder
of the right before the right is triggered. His argument misinterprets the contract and
misunderstands the law. First, the language in the contract creating the right of first refusal
is explicit: once Baker has received a bona fide offer he is willing to accept, he has the
contractual duty to notify Resource of the offer. Failure to notify Resource would breach
the contract and give Resource the power to demand specific performance. See Hempel v.
Creek House Tr. , 743 N.W.2d 305, 310 (Minn. App. 2007) (holding that when required

3 Zimmer argues that because the parking lease was terminable on a 90-day notice, Larson
could have contacted Baker and persuaded Baker to terminate the lease, eliminating the
right of first refusal. Larson counters that this argument is speculative and that, in any
event, such action would have con stituted a tortious interference with cont ract and would
have subjected both his law firm and Zimmer to liability for damages resulting from such
interference. If the right of first refusal was triggered before Larson got involved,
terminating the parking lease would not have eliminated the right of first refusal because it
already would have ripened into an option to purchase in favor of Resource . See Park-
Lake, 352 N.W.2d at 410–11. Thus, regardless of whether Zimmer’s recommended course
of action would have constituted tortious interference, if the right had already ripened into
an option to purchase, Zimmer’s recommended course of action would not have eliminated
Resource’s right of first refusal or had the effect of obtaining a more favorable result in the
transaction.
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notice is not given right of first refusal is breached); see also 3 Eric Mills Holmes, Corbin
on Contracts § 11.3, at 471–72 (rev. ed. 1996).
Second, Zimmer misinterprets the case he relies on for his argument. While Dyrdal
v. Golden Nuggets, Inc. , states that “[o] nce the owner receives an acceptable offer and
notifies the right -holder, the righ t of first refusal is triggered,” the issue in Dyrdal was
whether the notice provided to the holder of the right was adequate. 672 N.W.2d 578, 584
(Minn. App. 2003), aff’d, 689 N.W.2d 779 (Minn. 2004) . If the notice was adequate, it
started the clock on the right-holder’s time to act on the option to purchase created by the
right. Id. at 586. So, for purposes of when the clock on exercising the right begins to run,
the right is not triggered until notice is provide d to the holder. Id. at 584. But, if the
question is whether the right is triggered, all that is required is receipt by the property owner
of a bona fide offer he is willing to accept. Park-Lake, 352 N.W.2d at 411; Hempel, 743
N.W.2d at 310. Here, the explicit language in the parking lease only requires a bona fide
offer Baker was willing to accept , and thus receipt of a bona fide offer Baker was willing
to accept triggers Resource’s right of first refusal.
The June 13 meeting resulted in a bona fide o ffer that Baker was willing to accept,
triggering the right of first refusal. Zimmer recognized this in an email the following day
to Baker’s attorney, stating that he and Baker had “agreed on the terms” of the sale. The
email also contained what those terms were: the price, the term of the contract, the interest
rate, when payments would begin, and that there would be no early payoff penalty. While
the subsequent contract for deed went through three drafts, there were no material changes
to any of these key terms.
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Zimmer’s arguments to the contrary are unpersuasive . He argues that the right of
first refusal was not triggered by the June 13 meeting because there was no binding decision
made and the email was not a binding agreement . But whether there was a binding
agreement is irrelevant. The right of first refusal in the parking lease is not triggered by an
enforceable contract, but by Baker’s receipt of a bona fide offer he was willing to accept.
In addition to the explicit language of the contract—which only requires a bona fide
offer Baker was willing to accept —the revival provision in the right of first refusal
confirms that a binding contract was not required. The provision reads: “If the terms of
said offer are changed, then the right of first refusal given hereby to Tenant shall be revived
and said offer shall again be submitted to Tenant for the period and i n the manner herein
stated.” Contracts generally c annot be unilaterally modified, Cambern v. Hubbling , 307
Minn. 168, 171, 238 N.W.2d 622, 624 (1976) , and the ability to revive the right of first
refusal when there is a modification o nly makes sense if the right is triggered by an offer ,
not by a binding contract. Moreover, the loss of the right to purchase provision only grants
the Landlord the ability to accept the offer after expiration of the option period. If a binding
contract was required to trigger the right of first refusal, there would be no need to authorize
acceptance of the offer after expi ration of the option to purchase because the Landlord
would already have accepted the offer and formed a binding contract.
And, if rights of first refusal were only triggered by executing a binding contract,
the very act of triggering the right would simultaneously breach the right because entering
into a binding contract to sell the property fails to give the holder of the right the option to
purchase the property. 3 Eric Mills Holmes, Corbin on Contracts § 11.3, at 479–80 (rev.
11
ed. 1996) (“When O receives an offer fr om C, O’s acceptance of that offer without first
offering to B on the same terms is a breach for which B can recover damages . . . .”). Even
Zimmer’s argument for how Larson should have proceeded to extinguish the offer admits
that triggering the right of first refusal only required an offer Baker was willing to accept,
not a binding contract. Zimmer argues that Larson
should have essentially told Baker the following: “My client is
interested in making an offer for the Property. However, after
reading the Parking Lease, he will not make an offer so long as
the right of first refusal exists because if he does make such
offer and it is one Baker wants to accept, the offer will trigger
the right of first refusal. So, please do what is necessary to get
rid of the right of first refusal and then we will make an offer.”

Zimmer also argues that the June 13 meeting only resulted in a term sheet which
Zimmer proposed to Baker, and it was not an offer that Baker was willing to accept. But ,
the June 14 email fro m Zimmer to Baker’s attorney explicitly states that “[Baker] and I
have agreed on the terms,” and then lists those terms. Zimmer does not point to any
evidence that casts doubt on his own statement of Baker’s willingness to accept a deal on
the terms listed in the email.
Instead, Zimmer claims the terms were conditional because the email references a
concern about a “parking lot easement/arrangements [Baker] may have with the adjoining
property owners.” This argument is another way of saying that the J une 13 meeting did
not create a binding contract, and therefore it did not trigger the right of first refusal. To
avoid breaching the right of first refusal, Baker needed to make any acceptance of
Zimmer’s offer conditional on Resource’s right of first re fusal. This is not evidence that
Baker was unwilling to accept the terms Zimmer offered.
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Finally, Zimmer’s reliance on a supreme court case for the proposition that but-for
causation is a fact issue for the jury is misplaced. See Jerry’s Enters., Inc. v. Larkin,
Hoffman, Daly & Lindgren, Ltd. , 711 N.W.2d 811 (Minn. 2006). In that case there was
testimony which, if believed, showed that the attorney could have obtained a more
favorable result for the client, creat ing a material dispute of fact for the jury. Id. at 819–
20. But here, because the right of first refusal was triggered before Larson became involved
in the transaction, any dispute of fact is not material because there was nothing Larson
could have done to obtain a more favorable result for Z immer, and as a matter of law
Zimmer cannot establish but-for causation.
Because the right of first refusal was already triggered by the time Zimmer involved
Larson in the transaction, there was nothing that Larson could have done that would have
prevented Resource from exercising its option to purchase. Thus, Larson could not have
obtained a more favorable result for Zimmer in the transaction. 4
Affirmed.

4 Because resolution of this issue resolves the dispute, we decline to address whether there
was an attorney -client relationship between Larson and SJZimmer or any of the other
arguments raised in respondents’ brief.