Tad Ware & Company, Inc., Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0422

Tad Ware & Company, Inc.,
Appellant,

vs.

Schwan’s Home Service, Inc.,
Respondent.

Filed December 17, 2018
Affirmed
Halbrooks, Judge

Hennepin County District Court
File No. 27-CV-16-17706

Gregory J. Stenmoe, Emily M. Peterson, Kristin M. Emmons, Briggs and Morgan, P.A.,
Minneapolis, Minnesota (for appellant)

Sharon L. Van Dyck, Shannon M. McDonough, Tyler P. Brimmer, Fafinski Mark &
Johnson, P.A., Eden Prairie, Minnesota (for respondent)

Considered and decided by Worke, Presiding Judge; Halbrooks, Judge; and
Klaphake, Judge.

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
HALBROOKS, Judge
In this breach -of-contract action, appellant marketing communications agency
challenges the district court’s grant of summary judgment in favor of respondent grocery-
delivery company , arguing that the district court erred in concluding that the parties’
contract had expired or was effectively terminated and that respondent did not breach the
contract. Because we conclude that if the contract was in effect, it was not breached and
that it was properly terminated, we affirm.
FACTS
Appellant Tad Ware & Company, Inc. and respondent Schwan’s Home Service, Inc.
(Schwans) began their business relationship in the 1990s and entered into a new one-year
contract in October 2010. Under its terms, Tad Ware would provide “design, copywriting,
photography and digit al file production” services for Schwans’s consumer catalogs and
was the “catalog agency of record” to produce six 72 -page catalogs for Schwans. The
contract also stated that “any photography performed by [Tad Ware] shall be at
[Schwans’s] written request in [Schwans’s] sole discretion.”
With respect to duration and termination, the contract provided:

This Agreement shall commence as of October 1, 2010 and
shall continue in full force and effect through September 30,
2011 (“Initial Term”), unless terminated by either party for any
reason upon one hundred twenty (120) days prior written
notice. . . . This Agreement shall renew for additional one-year
terms after the Initial Term, renewal to be executed and
recorded by mutual written agreement of the part ies, unless
cancelled in writing by either party upon one hundred twenty

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(120) days prior written notice before the then expiration date
of the Agreement.

The parties never executed a written renewal, but Tad Ware continued to produce
catalogs through late 2015, and performed some photography services as well . For the
final two catalogs that Tad Ware produced, a different vendor supplied all photography
services.
On June 30, 2015, Schwans notified Tad Ware by letter that it was terminating the
contract effective October 29, 2015 , and issuing a request for proposal s (RFP) for future
catalog work. It invited Tad Ware to respond. Schwans issued its RFP in mid-August, and
Tad Ware and two other vendors submitted proposals. Schwans notified Tad Ware in mid-
September that it was awarding its catalog business to a different vendor.
One year later , Tad Ware filed suit against Schwans on the theories of breach of
contract, promissory estoppel, and misrepresentation. Only breach of contract is at issue
in this appeal. On that claim, the district court granted summary judgment to Schwans on
the ground that the 2010 contract had expired by its terms in 2011, and therefore was not
in effect in 2015. The district court also determined that, even if the contract were in effect,
Schwans properly terminated it, and in any event, did not breach it. This appeal follows.
D E C I S I O N
On appeal from summary judgment, we review the district court’s grant of summary
judgment de novo and “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).

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We view the evidence in the light most favorable to the nonmoving party. STAR Ctrs., Inc.
v. Faegre & Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002). Here, the material facts
are undisputed. “[W]e may affirm a grant of summary judgment if it can be sustained on
any grounds.” Doe 76C v. Archdiocese of St. Paul, 817 N.W.2d 150, 163 (Minn. 2012).
The district court determined that the 2010 contract expired by its terms be cause it
required a written renewal, which the parties agree did not occur. Tad Ware argu es that
the district court erred in failing to consider whether the parties impliedly renewed the
contract by their conduct, citing Fischer v. Pinske , 243 N.W.2d 733 (Minn. 1976). In
Fischer, the supreme court held that when both parties to an employment contract behaved
as if bound by an expired contract that required written renewal, waiver of the writing
requirement could be inferred. 243 N.W.2d at 735.
Here, the district court declined to consider whether the parties’ conduct supported
an implied renewal, determining that the contract was unambiguous and , therefore, there
was no need to consider extrinsic evidence. We need not determine whether the district
court erred in declining to consider whether the contract was impliedly renewed, because ,
even if the contract remained in effect in June 2015, the grant of su mmary judgment can
be affirmed. For purposes of our analysis, we will assume that the October 2010 contract
remained in effect in June 2015, having renewed despite the lack of a writing.
The district court determined that , if the contract had not expired and remained in
effect, Schwans gave proper notice to terminate the contract as of October 30, 2015. Tad
Ware argues that the district court misinterpreted the contract’s termination requirements.

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Contract interpretation presents “a question of law which we review de novo.”
Travertine Corp. v. Lexington -Silverwood, 683 N.W.2d 267, 271 (Minn. 2004). When a
contract is unambiguous, the contract language “must be given its plain and ordinary
meaning, and shall be enforced by courts even if the result is harsh.” Minneapolis Pub.
Hous. Auth. v. Lor , 591 N.W.2d 700, 704 (Minn. 1999) (footnotes omitted) . We are
required “to construe a contract as a whole so as to harmonize all provisions, if possible,
and to avoid a construction that would render one or more provisions meaningless.”
Stiglich Constr., Inc. v. Larson , 621 N.W.2d 801, 803 (Minn. App. 2001), review denied
(Minn. Mar. 27, 2001).
The contract contains both a termination clause, which states that it may be
terminated with 120 days written notice, and a renewal clause, which states that the contract
renews unless notice of termination was given at least 120 days before the expiration of
the term. Reading the two clauses to give effect to both, as we must, we conclude that the
district court properly determined that if the contract renewed on October 1, 2015, the clock
nevertheless kept running on the termination notice that had been given on June 30, 2015.
We reject Tad Ware’s argument that, because the notice of termination was given
only 93 days before the contract’s September 30, 2015 expiration date, the notice of
termination was ineffective, and the contract renewed for another 12 months. To adopt
Tad Ware’s construction would render the 120 -day termination provision meaningless.
The relevant language does not state that the contract may only be canceled if notice is
given 120 days before ex piration of the term of the contract, and we will not add such a
requirement to the contract. Accordingly, the district court did not err in determining that

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if the contract was in effect in October 2015, Schwans’s notice of termination was effective
as of October 30, 2015.
Tad Ware also argues that the district court erred in determining that Schwans did
not breach the contract before October 30, 2015 , by using a different vendor for certain
photography services. Tad Ware argues that because it was Schwans’s “catalog agency of
record,” it was the exclusive provider of ph otography services for all catalogs .1 The
contract provides otherwise. It states:
[Tad Ware] will provide design, copywriting, photography and
digital file production for [Schwans’s] consumer catalogs.
[Tad Ware] will work with [Schwans] as the [Schwan s]
Catalog agency of record to produce six (6), seventy -two (72)
page Catalogs each calendar year. Any photography
performed by [Tad Ware] shall be at [Schwans’s] written
request in [Schwans’s] sole discretion . . . .

We construe this provision to mean that Tad Ware would provide various catalog
services to Schwans and was its exclusive catalog producer, but that Schwans was not
required to utilize Tad Ware for photography services. Accordingly, the district court did
not err in determining that Schwans did not breach the contract by awarding photography
work to another vendor. Having concluded that the district court properly determined that
Tad Ware was not the exclusive photography vendor and that Schwans properly terminated
the contract, we affirm the district court’s grant of summary judgment.
Affirmed.

1 The parties agree that “agency of record” is an industry term denoting an exclusive
relationship.