Fern Hill Place Retail Association, Inc., Appellant,

This opinion will be unpublished and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
A17-1923

Fern Hill Place Retail Association, Inc.,
Appellant,

vs.

Fern Hill Place Homeowners Association, Inc.,
Respondent,

Cities Management, Inc.,
Respondent.

Filed August 6, 2018
Affirmed
Rodenberg, Judge

Hennepin County District Court
File No. 27-CV-15-8156

Jenneane L. Jansen, Kris E. Palmer, Jansen & Palmer, LLC, Minneapolis, Minnesota; and
Michael R. Moline, Lommen Abdo, P.A., Minneapolis, Minnesota (for appellant)

Thomas A. Harder, Thomas H. Priebe, Foley & Mansfield, PLLP, Minneapolis, Minnesota
(for respondent Fern Hill Place Homeowners Association, Inc.)

Jessica J. Theisen, Rachel B. Beauchamp, Cousineau, Van Berg en, McNee & Malone,
P.A., Minnetonka, Minnesota (for respondent Cities Management, Inc.)

Considered and decided by Rodenberg, Presiding Judge; Halbrooks, Judge; and
Jesson, Judge.

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U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
Appellant Fern Hill Place Retail Associatio n Inc. challenges the district court’s
grant of summary judgment and award of attorney fees in fa vor of respondents Fern Hill
Place Homeowners Association Inc. (HOA) and Cities Management Inc. (Cities).
Appellant argues that the district court erred in denying its motion to amend its complaint
for a second time, in failing to declare appellant a “creditor association” under the parties’
agreement, in awarding attorney fees to HOA, and in granting summary judgment in favor
of Cities. In a related appeal, HOA argues that the district court erred in granting summary
judgment to Cities on its claim for contractual defense and indemnity. We affirm.
FACTS
Background
This long-simmering dispute between the parties concerns a condominium
development that is combined with designated retail spac e located at 5101 Minnetonka
Boulevard in St. Louis Park (the property). Appellant and HOA are each organized as a
common interest community (CIC). 1 The two CICs entered into a Joint Declaration of
Easements, Covenants, and Restrictions , which allocates maintenance and other

1 A CIC consists of “contiguous or noncontiguou s real estate within Minnesota that is
subject to an instrument which obligates pers ons owning a separately described parcel of
the real estate, or occupying a part of the real estate pursuant to a proprietary lease . . . to
pay for . . . taxes . . .; insurance premiums . . .; construction, maintenance, repair or
replacement of improvements loca ted on, one or more parcels or parts of the real estate
other than the parcel or part that the person owns or occupies.” Minn. Stat.
§ 515B.1-103(10) (2016).

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obligations concerning the property as betw een the CICs. Paragraph 4(c) of the Joint
Declaration provides that:
If any portion of the Building is damaged, then such damage
shall be repaired and restor ed by the Association having
responsibility for the portion of the Building in which the
damage occurs. If any disrepai r or damage adversely affects
the structural support or any other portion of the Building, . . .
and if at any time the Association having responsibility for the
disrepair or damage (herein called the “Defaulting
Association”) is not proceeding diligently with the work of
repair and restoration, then the other Association (herein called
the “Creditor Association”) ma y give written notice to the
Defaulting Association specifying the respect in which such
repair or restoration is not pr oceeding diligently. If, upon the
expiration of ten (10) days afte r the giving of such notice, the
work or repair or restoration is not proceeding diligently, then
the Creditor Association may perform the repair and
restoration and may take all appr opriate steps to complete the
same. The Creditor Association shall be entitled to
reimbursement from the Defaulting Association for all
reasonable and necessary costs and expenses incurred by
Creditor Association therefor and shall have a lien against any
insurance proceeds payable unde r any policy of insurance
protecting against such damage to secure repayment.

Appellant is responsible for the retail space on the ground floor of the property.
HOA is responsible for the residential units occupying the upper floors and a below-ground
parking garage. The declaration also provides that expenses for general maintenance work
on “all driveways and parking areas” are to be paid as follows: 80% by HOA and 20% by
appellant. The residential parking garage is a “comm on element” under the HOA
declaration. Cities is a property-management company that contracted with both CICs for
property-management services.

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A dispute arose between the parties becaus e of water intrusion at the property.
Appellant alleges that HOA took steps to corre ct the water intrusion in the residential
garage and other areas, but did not permit any involvement by appellant. Appellant claims
that the repairs “were not conducted in a workmanlike manner.” It alleges that, starting in
“2010 or earlier, the water in trusion issues were obvious up on mere inspection in the
residential garage,” and that it became clea r that the repairs had failed to correct the
problems. Appellant alleges that, on March 24, 2010, it gave HOA notice of the need for
repair of the continuing problems, and that HOA failed to make repa irs. In July 2014,
appellant retained counsel to pursue its legal remedies c oncerning the repairs it believed
necessary.
In an earlier lawsuit, HOA sued appellant, alleging that appellant was in default of
its financial obligations under the parties’ Joint Declaration. Fern Hill Place Retail Ass’n,
Inc. v. Fern Hill Place Homeowners Ass’n, Inc., No. A15-1318, 2016 WL 1551669 (Minn.
App. 2016), review denied (Minn. June 29, 2016) (Fern Hill I). HOA had commenced an
arbitration proceeding pursuant to the Joint Declaration. The parties reached an agreement
to settle the dispute, but appellant did no t sign the written agreement. The HOA later
brought a motion to the arbitr ator, before whom that pr oceeding was still pending,
requesting that the arbitrator confirm the va lidity and enforceability of the settlement
agreement. The arbitrator granted this motion. Appellant moved the district court to vacate
the award. The district court denied that motion. Appellant appealed, and we affirmed the
district court.

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The Current Dispute
The current suit was started in March 2015. Appellant amende d its complaint on
May 4 (first amended complaint). Count one of the first amended complaint sought a
declaratory judgment under Minn. Stat. § 555.01-.16 (2016) that appellant was a “creditor
association” under the Joint Declaration. Count two requested an injunction to allow
appellant to undertake repairs without HOA’s interference. Count three claimed that HOA
violated its duties under Minnesota law. Count four alleged that Cities violated Minnesota
law by aiding and abetting HOA’s violation of its duties. Count five alleged unjust
enrichment by HOA. Count six alleged that appellant is entitled to a lien against HOA for
costs incurred in any future repairs. Count seven alleged that HOA and Cities committed
waste by failing to properly repair the ongoi ng water-intrusion issues. Count eight
requested the appointment of a receiver over HOA. Finally, Count nine asked the court to
award appellant its attorney fees.2
Cities cross-claimed against HOA, arguing that Cities is contractually entitled to
indemnity from HOA for attorney fees and for any liab ility of Cities to third parties
resulting from its work for HOA. It also re quested attorney fees and other costs incurred
in defense of appellant’s claims against it.

2 HOA counterclaimed, alleging that appellant breached the parties’ agreement by failing
to pay HOA what appellant owed under th e earlier settlement agreement between the
parties and by failing to pay its portion of the common expenses for the property. HOA
also sought attorney fees unde r Minn. Stat. § 515B.4-116(b). With the district court’s
approval, HOA voluntarily dismissed this counterclaim without prejudice.

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Appellant moved the district court to appoint a receiver over HOA. It alleged that
HOA was insolvent, that its board was not st ructurally sound, and that immediate action
was required. The district court denied this motion. It found that there was a legitimate
dispute regarding the extent and cost of th e necessary repairs, and that HOA was not
insolvent for the purposes of the motion because HOA was paying its debts in the ordinary
course of business and appeared likely to be ab le to obtain financing for the repair work.
It further found that HOA was not committing waste. The di strict court also concluded
that, because the extent of the necessary repairs was a factual dispute, the appointment of
a receiver was not necessary and would needlessly increase costs. It noted that the parties’
Joint Declaration provided for an architect to determine the extent and nature of any
necessary repairs.
HOA and appellant eventually agreed to reta in a firm to assess what repairs were
needed. On Sept. 18, 2015, the district court issued an order allocating responsibility for
the costs of the engineering firm. In Apr il 2016, HOA moved to compel discovery. The
district court granted the motion, and awarded HOA attorney fees.
Cities moved for summary judgment, seek ing dismissal of appellant’s claims
against it, and seeking summary judgme nt on its cross-claim against HOA for
indemnification. HOA also moved for su mmary judgment, seeking dismissal of
appellant’s complaint and asking for attorney fees. In its brief to the district court opposing
summary judgment, appellant requested leav e to amend its comp laint and asked for
summary judgment in its favor, but it noted no motions concerning these items of requested
relief and did not produce a proposed second amended complaint.

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The district court denied appellant’s re quest to amend its complaint for a second
time. It noted that appellant failed to comply with the motion-practice requirements of the
General Rules of Practice, did not identify its proposed pleading amendments, and did not
provide a proposed amended complaint. The district court concluded that Minn. R. Civ. P.
15.02, providing that the pleadings may be am ended to conform to the evidence, did not
apply because appellant was pr esenting new theories to the district court to which HOA
had not consented. Further, it concluded that amendment of the pleadings was not required
in the interests of justice, because the amendment would introduce entirely new causes of
action and claims for relief which would delay the proceedings further.
The district court granted HOA’s motion for summary judgment on count one. It
concluded that appell ant is not entitled to declarator y relief, because appellant has a
contractual remedy available under the Joint Declaration, which permits appellant to
commence repairs that it believe s necessary and seek reimbur sement from HOA. It also
concluded that HOA was not a defaulting a ssociation under the terms of the Joint
Declaration. The district court determined that “the largest obstacle in the way of
commencing repairs at this point is the present lawsuit.” It granted summary judgment for
HOA and Cities on appellant’s count two, because the injunctive relief sought by appellant
was “not the type of relief for which the parties contracted in the Declaration.” It granted
summary judgment for HOA on count three, relying on its own earlier finding that the
board was not defunct from 2010 to 2017, and that appellant had failed to demonstrate a
genuine issue of material fact concerning HOA’s alleged financial mismanagement. It
further concluded that appellant lacked standing to bring its count three claims. The district

8
court summarily dismissed count five, reasoni ng that appellant has no claim for unjust
enrichment where the parties have an en forceable contract and HOA has not been
demonstrated to have been enri ched. On count six, the dist rict court applied this same
analysis to determine that a lien is not an av ailable remedy. The district court summarily
dismissed count seven, which alleged waste against HOA and Cities, concluding that such
claims were time-barred under the six-year statute of limitations. On count eight, the
district court concluded that appointment of a receiver was not necessary, because HOA’s
financial and organizational pos ition had only improved since the district court’s earlier
denial of appellant’s motion for appointment of a receiver. The district court, having
dismissed all of appellant’s substantive clai ms for relief, awarded appellant no attorney
fees.
The district court granted summary judgment in favor of Cities on count four of
appellant’s complaint, and on Cities’ cross-claim against HOA for contractual defense and
indemnification. Concerning count four, it concluded that there was no violation of law by
HOA that Cities could have aide d and abetted. Concerning th e cross-claim, the district
court concluded that the agreement betwee n Cities and HOA requires HOA to indemnify
and hold Cities harmless for acti ons taken by Cities on behalf of HOA. Finally, as HOA
was the prevailing party in litigation under Minn. Stat. § 515B.4-116(b), the district court
awarded attorney fees to both HOA and Cities (including those which HOA had incurred
in indemnifying Cities from the cost of litigation).
By separate order, the district court orde red appellant to pay HOA’s attorney fees,
totaling $272,546.77, under Minn. Stat. § 515B.4-116(b). The district court later entered

9
judgment on Cities’ cross-claim, requiring HOA to pay Cities $42,883.89 on Cities’ claim
for contractual defense and indemnification.
This appeal followed.
D E C I S I O N
On appeal, appellant argues that the distri ct court erred in denying its request to
amend its complaint for a second time, in failing to declare appellant a creditor association
under the agreement between it and HOA, in its award of attorney fees and costs to HOA,
and in awarding summary judgment in Cities’ favor.3 In a related appeal, HOA challenges
the district court’s entry of judgment in favor of Cities on its claims for contractual
indemnification from HOA.
I. The district court did not abuse its discretion when it denied appellant’s
request to amend its complaint a second time.

We first address appellant’s argument that the district court improperly denied what
appellant intended to be a mo tion to amend its complaint fo r a second time. Leave to
amend a pleading “shall be freely given when justice so requires.” Minn. R. Civ. P. 15.01.
We review a district court’s decision to permit or deny amendments to pleadings for abuse
of discretion. Johns v. Harborage I, Ltd., 664 N.W.2d 291, 295 (Minn. 2003).
Appellant did not comply with Minn. R. Gen. P. 115.04’s notice and timing
requirements when it requested permission to amend its complaint. See Minn. R. Gen. P.

3 Appellant makes no argument concerning the district court’s dismissal of its claims
against HOA for unjust enrichment and fo r a constitutional lien. It also makes no
arguments regarding the district court’s su mmary judgment dismissing its claims against
HOA and Cities for waste and for appointment of a receiver.

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115.04 (providing that a moving party must serve documents on all opposing counsel and
file motion papers with the court administrator at least fourteen days prior to a hearing on
the motion). Appellant raised the issue in its memorandum of law opposing summary
judgment. Appellant did not provide a proposed amended complaint. Nevertheless, in its
order denying amendment, the district court parsed out the substance of appellant’s
proposed amendments. The district court determined that appellant was intending to seek
either monetary damages for future repair s or injunctive relief requiring the HOA to
commence repairs at its own expense.
The district court could have denied appe llant’s request to amend because of the
complete failure to comply w ith Minn. R. Gen. P. 115.04. But, despite appellant’s
noncompliance with the rule, the district court thoroughly and accurately analyzed
appellant’s request to amend the complaint, concluding that the proposed amendment
would “introduce entirely new ca uses of action and claims fo r relief,” would prejudice
HOA and Cities by requiring them to gather and prepare new evid ence “more than 18
months after the pleadings, where the court is considering summary judgment,” and further
delay the case, doing “nothing but harm.” The record supports the district court’s analysis.
Appellant argued to the district court, and maintains on appeal, that Minn. R. Civ.
P. 15.02, providing that “[w]hen issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all respects as if they had been raised
in the pleadings,” should permit the amendment here. Minn. R. Civ. P. 15.02. The district
court determined that the issues that appellant sought to raise by the additional amendment
had not been consented to by HOA and Cities “e ither expressly or by implication.” We

11
agree with the district court, and we see no abuse of its discretion in denying appellant the
opportunity to amend its plea dings by introducing new causes of action and claims for
relief at the summary-judgment stage, particularly where appellant failed to comply even
minimally with the applicable motion-practice rules.
II. The district court did not err in summarily dismissing appellant’s first
amended complaint.

We next address appellant’s arguments c oncerning the district court’s summary
judgment dismissing its claims.4
“We review a district court’s summary judgment decision de novo. 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.” Riverview Muir Doran, LLC v.
JADT Dev. Grp., LLC, 790 N.W.2d 167, 170 (Minn. 2010) (citation omitted).
A. Appellant’s Declaratory- Judgment Claim Against HOA
Appellant’s essential claim is that it is entitled to a declaratory judgment that, if
appellant does as the parties’ Joint Declar ation permits and repairs the water-intrusion
damages, it will be a creditor association, and entitled to recover from HOA all amounts it
expends.
“In any action for declaratory relief, the court has full discretion pursuant to Minn.
Stat. § 555.06 to refuse to enter a judgment or decree granting relief where such judgment

4 We focus our inquiry on the actual claims asserted by appellant and addressed by the
district court below in appellant’s first amended complaint, although we note that, even in
its briefing on appeal, appellant attempts to raise arguments which were the subject of its
proposed second amended complaint and are outside the scope of our review.

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or decree would not terminate the controve rsy giving rise to the proceedings.” Bailey v.
Univ. of Minn., 187 N.W.2d 702, 703 (Minn. 1971); see Minn. Stat. § 555.06 (“The court
may refuse to render or enter a declaratory judgment or decree where such judgment or
decree, if rendered or entered, would not te rminate the uncertainty or controversy giving
rise to the proceeding.”).
In its first amended complaint, appellant asked the district court for a declaratory
judgment under Minn. Stat. § 555.01-.16 (providing that courts may “declare rights, status
and other legal relations whether or not further relief is or could be claimed” and that “a
contract may be construed either before or after there has been a breach thereof”) as to its
rights as the “creditor association” under paragr aph 4(c) of the Joint Declaration between
appellant and HOA. This para graph of the Joint Declaration provides that, if one of the
parties responsible for repairs “adversely affe ct[ing] the structural support of any other
portion” of the pr operty “is not proceeding diligently with the work of repair and
restoration,” then the other party, design ated by the declaration as “the creditor
association,” may give notice to the part y not proceeding diligently, the “defaulting
association,” “specifying the respect in which such repair or restoration is not proceeding
diligently.” If the repair is not begun after ten days, the creditor association “may perform
the repair and restoration and may take all ap propriate steps to complete the same” and is
entitled to reimbursement from the defaulting association “for all reasonable and necessary
costs and expenses incurred.” Because the Joint Declarati on expressly provides how the
parties are to proceed in this situation, the district court declined to issue a declaratory
judgment.

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The district court got it exactly right. The parties have a detailed written agreement
that contemplates this precise situation and provides a process for a remedy. Despite years
of haggling between these parties, appellant has yet to move forward under the process to
which it agreed in the Joint Declaration—th at is, commencing repairs unilaterally and
seeking reimbursement from HOA.
A declaratory judgment is not appropri ate if it would not “terminate the
controversy” between parties. Bailey, 187 N.W.2d at 703. An actual controversy “is not
one that will arise in the futu re upon the happening of a ce rtain contingenc y, but is a
controversy over a present right.” Harrington v. Fairchild, 235 Minn. 437, 443, 51 N.W.2d
71, 74 (Minn. 1952). Here, appellant im properly and prematurely seeks a judicial
declaration that would amount to “advising what the law would be upon a hypothetical
state of facts.” Seiz v. Citizens Pure Ice Co. , 207 Minn. 277, 281 , 290 N.W. 802, 804
(Minn. 1940). Appellant is asking what the di strict court thinks will happen if appellant
takes the action it thinks it is entitled to ta ke under the parties’ agreement. The
“declaration” sought by appellant is not a determination of the present rights of the parties
under the declaration. The district court properly declined to enter a declaratory judgment
and did not err in granting summary judgment in favor of HOA on this issue.
B. Appellant’s Claim for Injuncti ve Relief Against HOA and Cities
We next address appellant’s arguments that the district court should have
determined that it is entitled to injunctive relief.
“A temporary injunction is an extraordinary remedy. Its purpose is to preserve the
status quo until adjudication of the case on its merits.” Haley v. Forcelle, 669 N.W.2d 48,

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55 (Minn. App. 2003) (citation omitted), review denied (Minn. Nov. 25, 2003). For
permanent injunctive relief to be awarded, a right to the injunctive relief must be
established at trial. Bio-Line, Inc. v. Burman, 404 N.W.2d 318, 320 (Minn. App. 1987).
Appellant’s first amended complaint re quested both temporary and permanent
injunctive relief. The district court determin ed that injunctive relief was not warranted
because there remained “a contractual reme dy under the [d]eclaration for [appellant] to
complete repairs it deems necessa ry.” The district court’s determination comports with
Minnesota law. Despite the longstanding acrimony between these parties, the record does
not support the contention that HOA is prev enting appellant from making the repairs that
appellant thinks necessary and seeking thereafter to assume the role of creditor association
under the Joint Declaration. What appellant wants is a judicially crafted injunctive remedy
that is nowhere contemplated by the parties’ agreement. The district court did not err in
granting summary judgment on appellant’s claims for injunctive relief.
C. Appellant’s Claim for Violation of Statutory Duties Against HOA
Appellant argues that HOA violated its statutory duties under the Minnesota
Common Interest Ownership Act and the Minnesota Nonprofit Corporation Act. In count
three of its first amended complaint, appellant alleged that HOA’s board failed to comply
with its bylaws and with both Minnesota Statutes Chapte r 317A (2016) and Minnesota
Statutes Chapter 515B (2016). It alleged that the HOA was operating with a defunct board
from 2010 until 2014, that the HOA board breached its statutory duties by failing to address
water intrusion issues and failing to properly manage reserve funds. It further maintained

15
that the HOA board’s breach of its statutory duties resulted in the “committing of waste,
and damages to [appellant].”
The district court found that appellant “p resented no evidence that it has been
harmed by the alleged breach es of 515B and 317A, and did not respond to the HOA’s
argument that no damages resulted from thes e claims.” The district court further
determined that appellant lacked standing to bring these claims. It concluded that Chapter
515B permits recovery of damages for any person “adversely affected by [a] failure to
comply” with the chap ter, and found that appellant fa iled to demonstr ate how it was
adversely affected by any violat ion of Chapter 515B by HOA. It noted that appellant is
not a member of the HOA, does not pay an association fee to the HOA, and is not subject
to the HOA’s declaration. The district cour t further concluded that appellant failed to
demonstrate how any fiduciary duties of the HOA board extend to appellant, and that
appellant had not established a connection be tween the HOA board’s alleged violation of
Minn. Stat. § 317A.251 and any damages suffered by appellant.
“We review de novo whether a party has standing.” Fed. Home Loan. Mort. Corp.
v. Mitchell, 862 N.W.2d 67, 70 (Minn. App. 2015), review denied (Minn. June 30, 2015).
“Standing is the requirement that a party has a sufficient stake in a justiciable controversy
to seek relief from a court. Standing is acqui red if the plaintiff has suffered some injury-
in-fact or if the plaintiff is the beneficiary of some legislative enactment granting standing.”
Pollard v. Southdale Gardens of Edina Condo. Ass’n., Inc., 698 N.W.2d 449, 455 (Minn.
App. 2005)

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Minn. Stat. § 515B.3-103 identifies the statutory duties of a CIC’s board of directors
and officers. Minn. Stat. § 515B.4-116 provides a claim of relief for “any person or class
of persons adversely affected” by a party’s failure to comply with any provision of Chapter
515B or a CIC’s declaration, bylaws, or rules and regulations. Minn. Stat. § 317A.251 also
identifies the duties of a nonpro fit corporation’s board of dire ctors, and charges directors
to act “in a manner the director reasonably be lieves to be in the best interests of the
corporation.” In order to establish standing, a litigant must demonstr ate “a harm that is
both concrete and actual or imminent, not conjectural or hypothetical.” Hanson v.
Woolston, 701 N.W.2d 257, 262 (Minn. App. 2005) (quotations omitted).
We agree with the district court that appellant does not have standing to sue HOA
under Chapters 317A or 515B. As the district court rightly noted, appellant is not a member
of HOA and is not party to HOA’s declarati on. Appellant cites no binding authority to
support a conclusion that it has standing to sue HOA for a breach of its duties under either
of these statutes.
Even if HOA breached a statutory duty in improperly addressing the water intrusion
issue, appellant has suffered no damages. It has not undertaken to make repairs as provided
for by the Joint Declaration.
D. The District Court’s Award of Attorney Fees to HOA
Appellant next argues that the district court erred by awarding attorney fees to HOA
and Cities under Minn. Stat. § 515B.4-116. Appellant clarified at oral argument that it only
challenges on appeal the fact of the attorn ey-fee award, and not the amount. Appellant

17
argues that the district court erred in finding that HOA was a “prevailing party” under the
statute, and in awarding attorney fees when HOA had dismissed its crossclaim.
The Minnesota Common Interest Ownership Act provides for attorney fees related
to litigation under the Act. Minn. Stat. § 515B.4-116(b) (“The court may award reasonable
attorney fees and costs of litigation to the prevailing party.”) “Appellate courts only reverse
attorney fee awards if there is an abuse of discretion.” 301 Clifton Place LLC v. Clifton
Place Condo. Ass’n, 783 N.W.2d 551, 569 (Minn. App. 2010). We review a district court’s
interpretation of a statute de novo. Cocchiarella v. Driggs, 884 N.W.2d 621, 624 (Minn.
2016).
In awarding HOA attorney fees, the di strict court interpreted Minn. Stat.
§ 515B.4-116 to identify, under subpart (a), the circumstances under which a party has a
right of action under the statute, and under subpart (b), for an award of reasonable fees and
costs to the “prevailing party” in that action. It determined that the statute does not
distinguish between prevailing plaintiffs and prevailing defendants. It also determined that
HOA did not waive its claim for fees and costs when it dismissed its counterclaim without
prejudice.
We agree with the district court’s constr uction of Minn. Stat. § 515B.4-116. The
plain language of the statute is unambiguous. Minn. Stat. § 515B.4-116(a) identifies who
may sue for a violation of the Minnesota Common Interest Ownership Act, and Minn. Stat.
§ 515B.4-116(b) provides that attorney fees and litigation costs may be assessed in favor
of the prevailing party in such an action. “Prevail” is defined as “[t]o obtain the relief
sought in an action; to win a lawsuit.” Black’s Law Dictionary 1380 (10th ed. 2014).

18
Nothing in the statute suggests that, to “prevail,” a party must be seeking affirmative relief.
Either a plaintiff or a defenda nt may be a prevailing party. Appellant’s lawsuit against
HOA is meritless, and HOA is plainly entitled to attorney fees as a prevailing party under
Minn. Stat. § 515B.4-116.
Concerning appellant’s argument that th e district court erred in awarding HOA
attorney fees because HOA’s counterclaim was dismissed, we have held that attorney fees
remain available after the dismissal of a claim in comparable circumstances. See Vegemast
v. DuBois, 498 N.W.2d 763, 766 (Minn. App. 1993) (holding that a district court retains
jurisdiction to consider rule 11 attorney fees even after an underlying claim is dismissed).
HOA is entitled to attorney fees under Minn. Stat. § 515B.4-116 as the prevailing party in
a suit under the Minnesota Common Interest Ownership Act because it obtained a summary
judgment dismissing all of appellant’s cl aims, regardless of the dismissal of its
counterclaim against appellant.
E. Appellant’s Claim of Aiding and Abetting a Violation of Minnesota
Statutory Law Against Cities

Appellant also challenges the district court’s grant of summary judgment in favor
of Cities on count four of the first amended complaint.
The district court summarily dismissed ap pellant’s claim against Cities alleging that
it aided and abetted HOA’s breach of its duties under the Minneso ta Common Interest
Ownership Act and the Minnesota Nonprofit Corporations Act. The district court
concluded that appellant’s aiding-and-abetting claims against Cities were predicated on its
claims that HOA breached its statutory duties. Because we affirm the district court’s grant

19
of summary judgment for HOA on a ppellant’s claims that it viol ated its statutory duties,
we similarly conclude the district court pr operly granted summary judgment in favor of
Cities on appellant’s aiding-and-abetting claim against it.
III. The district court did not err in granti ng summary judgment in favor of Cities
on its cross-claim against HOA for contractual indemnification.

In a related appeal, HOA argues that the district court erred in granting summary
judgment for Cities on the cross-claim against HOA for contractual indemnification. Cities
had a separate contract with HOA to assist with financial and other management.
“[T]he existence and terms of a contra ct are questions for the fact finder.”
Morrisette v. Harri son Int’l Corp. , 486 N.W.2d 424, 427 (Minn. 1992). But, “[a]bsent
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). “Whether a contract is ambiguous is a
question of law that we review de novo.” Dykes v. Sukup Mfg. Co., 781 N.W.2d 578, 582
(Minn. 2010).
The district court determined that the agreement between HOA and Cities requires
HOA “to indemnify Cities for all damages, claims, and expenses sustained by Cities when
carrying out the provisions of the agreement.” The district court determined that the
contract is unambiguous and that its plain la nguage provides that HOA “is contractually
obligated to indemnify Cities and pay Cities’ attorney fees and costs incurred.”
The terms of the agreement between the parties provide:
Except for damages or injuri es caused by the illegal or
intentional misconduct of Cities, its agents, or its employees,
the Association agrees to inde mnify and hold Cities and the
Affiliated Companies harmless for all damages, claims, and

20
expenses sustained by Cities when carrying out the provisions
of this Agreement . . . . Th is indemnity and hold harmless
provision shall apply even in the event that Cities may have
breached the terms of this Agreement. The Association hereby
holds Cities . . . harmless from and indemnifies them against
any and all losses, damages, expenses which arise due to
claims for damages or injury to persons or property except for
those actions of Cities found to be illegal or intentional. . . .
The Association agrees to pay all expenses incurred by Cities
and the Affiliated Companies, including without limitation,
attorneys’ fees for counse l employed to represent the
Association, Cities and the A ffiliated Companies, in any
proceeding or suit brought by them . . . including any action
brought by Cities to collect sums due to it by the Association.
This indemnification shall in clude any claim brought by a
member of the Association or a third party for problems with
the construction, maintenance or repair of the property.

We agree with the district court’s conclu sion that the indemnification provision in
the parties’ agreement is unambiguous. When this lawsuit was commenced, the 2014-2015
agreement between HOA and Cities governed. The language in the indemnification
provision clearly provides that HOA must indemnify Cities against any claims arising out
of Cities’ duties under the contract and provi des that HOA will pay all expenses incurred
by Cities regarding these claims.
HOA argues on appeal that the provision is ambiguous because it contains
conflicting language providing exceptions. Language in the agreement exempts damages
or injuries arising out of Cities’ “illegal or intentional misconduct” from the hold-harmless
agreement. But here, HOA does not claim, a nd the record would not support, that Cities
engaged in any such conduct. On the contrary, all of appellant’s claims against both HOA
and Cities are meritless. HOA is responsible to indemnify Cities for claims arising out of
Cities’ duties under its agreement with HOA.

21
HOA further argues that appellant’s claims against Cities are not within the scope
of the indemnification provision because the claims involve conduct outside of Cities’
duties to HOA. HOA argues that the allegations in appellant’s complaint that Cities took
“numerous intentional and illegal actions” re moves those claims from indemnification
under the parties’ agreement. Only count four of appellant’ s complaint relates to Cities’
allegedly intentional and illegal conduct.5 As discussed, count four claimed that Cities was
aiding and abetting HOA’s breach of its stat utory duties. That claim was properly
dismissed as against both of respondents as a matter of law.
HOA argues for the first time on appeal that Minn. Stat. § 337.02 (2016) renders the
indemnification provision unenforceable . Minn. Stat. § 337.02 provides that
indemnification provisions are unenforceable in certain circumstances for “building and
construction” contracts. Minn. Stat. § 33 7.01, subd. 2 (2016) defines a building and
construction contract as “a contract for the design, construction, alteration, improvement,
repair or maintenance of real property, highways, roads or bridges.” Minn. Stat. § 337.02
does not apply to the agreement between Cities and HOA, because the parties’ agreement
is for “financial management” and “property management” duties. The agreement is not a
building and construction contract under Minn. Stat. § 337.01, subd. 2.6

5 Count seven alleged waste by both respondents.

6 The United States District Court for the Di strict of Minnesota has reached a similar
conclusion and has interpre ted the word “maintenance” in the statute to apply to
“construction-industry projects, not housek eeping projects” when considering this
statute in the context of a contract for housekeeping services. Target Corp. v. All Jersey
Janitorial Serv., Inc., 916 F. Supp. 2d 909, 913 (D. Minn. 2013).

22
The district court did not err in grantin g summary judgment to Cities on its cross-
claim against HOA.
Affirmed.