33 City Center Holding LLC, 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This opinion will be unpublished and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
A18-1374

33 City Center Holding LLC,
Appellant,

vs.

Rosa Mexicano Minneapolis, LLC, et al.,
Respondents.

Filed April 8, 2019
Affirmed
Connolly, Judge

Hennepin County District Court
File No. 27-CV-17-6930

Thomas G. Wallrich, Heather L. Marx, Peter L. Crema, Jr., Cozen O’Connor, Minneapolis,
Minnesota (for appellant)

Richard A. Duncan, Bruce Jones, Rachel A. Osdoba, Fae gre Baker Daniels LLP,
Minneapolis, Minnesota; and

Adam J. Hachikian (pro hac vice), Fox Swibel Levin & Carroll LLP, Chicago, Illinois (for
respondents)

Considered and decided by Bjorkman, Presiding Judge; Connolly, Judge; and
Florey, Judge.

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U N P U B L I S H E D O P I N I O N
CONNOLLY, Judge
Appellant challenges the district court’s grant of respondents’ motion for judgment
on the pleadings, arguing that it plead ed legally sufficient facts to support its claims for
anticipatory breach of lease and unjust enrichment. Because we conclude that appellant
failed to allege an unequivocal repudiation of the lease, and because an unjust enrichment
claim cannot be maintained when the rights of the parties are governed by a valid contract,
we affirm.
FACTS
Respondent Rosa Mexicano Minnea polis, LLC (Tenant) signed a 15 -year lease
(Lease) for commercial space in 33 City Center (Premises) with 33 South 6th Street LLC
(Landlord) on December 15, 2010 . R espondent Rosa Mexicano Group Holdings, LLC
(Guarantor) provided a 60 -month guarantee. While the Lease was still in effect but after
the expiration of the guarantee, Tenant closed its operations, moved out of the P remises,
and stopped paying rent. Appellant assignee 33 City Center Holding, LLC filed suit against
both Tenant and Guarantor alleging that both were liable for the unpaid rent because Tenant
had anticipatorily breached the lease while the guarantee was still in effect. Appellant also
alleged, among other claims, unjust enrichment.
To support its claim for anticipatory breach, appellant’s allegations focused on its
communications with Tenant’s agent, Larry Summerton. Specifically, appellant alleged
that o n April 21, 2015, Mr. Summerton contacted appellant on behalf of Tenant and
indicated that Tenant intended to vacate the p remises. Further, o n April 28,

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Mr. Summerton sent an email to the building general manager reiteratin g that “as noted,
[tenant] plan[s] on vacating at the expiration of the corporate guarantee but would like to
work towards a replacement tenant and coordinate with the landlord.” Following the email,
Mr. Summerton had additional verbal communications with Landlord and his agents
indicating the Tenant intended to vacate the premises.
Appellant also alleged that in July 2015, a notice of default was sent to both Tenant
and Guarantor, which notified the parties that Tenant’s intent to vacate the premises would
constitute a violation of th e covenant of continued occupancy. The notice of default
requested a “written rescission of [Tenant’s] repudiation of the Lease. ” Respondents
subsequently failed to respond to the default notice; however, Tenant continued to occupy
the premises and pay rent for over a year.
Tenant left the premises in October 2016—nine months past the 60-month guarantee
term. In May 2017, appellant filed its complaint alleging the anticipatory breach and unjust
enrichment claims. Respondents filed a motion for judgment on the pleadings, requesting
dismissal of both claims. The district court granted the motion and dismissed the claims
after holding hearings. This appeal follows.
D E C I S I O N
Appellant argues that the district court prematurely dismissed its anticipatory breach
and unjust enrichment claims when it granted respondents’ motion for judgment on the
pleadings. After pleadings are closed but b efore trial, a party may move for judgment on
the pleadings if a complaint fails to set forth a legally sufficient claim for relief. Minn. R.
Civ. P. 12.03. In determining whether the district court properly granted judgment on the

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pleadings, this court “consider [s] only the facts alleged in the complaint, accepting those
facts as true and drawing all reasonable inferences in favor of the nonmoving party.” Burt
v. Rackner, Inc., 902 N.W.2d 448, 451 (Minn. 2017); Minn. R. Civ. P. 10.03 (“A copy of
any written instrument which is an exhibit to a pleading is a part of the sta tement of claim
or defense set forth in the pleading.”). Whether a complaint sets forth a legally sufficient
claim for rel ief is reviewed by this court de novo. Frederick v. Wallerich , 907 N.W.2d
167, 172 (Minn. 2018). Judgment on the pleadings is particularly appropriate in disputes
concerning the legal effect of documents . See McReavy v. Zeimes , 9 N.W.2d 924, 927
(Minn. 1943) (concluding that judgment on the pleadings is proper when the dispute
centers on the meaning of a contract and the contract language unambiguously entitles the
moving party to judgment).
Anticipatory Breach
Under Minnesota law, an anticipatory breach occurs when a party to an executory
contract expressly renounces the same, giving notice that he will not perform the contract
before performance is due. Space Ctr., Inc. v. 451 C orp., 298 N.W.2d 443, 450 (Minn.
1980). “The refusal to perform must in effect be an unqualified renunciation or repudiation
of the contract.” Id.; accord Bell v. Olson , 424 N.W.2d 829, 832 (Minn. App. 1988)
(“Anticipatory breach may be found only upon a definite and unequivocal manifestation of
intention on the part of the repudiator that he will not render the promised performance
when the time fixe d for it in the contract arrives.” (quotation omitted )). Anticipatory
breach may be shown in the absence of an express unqualified repudiation if the record
demonstrates an inability to perform. Space Ctr., Inc., 298 N.W.2d at 450.

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To support its claim for anticipatory breach, appellant relies on the statements from
Tenant’s agent, Mr. Summerton. But Mr. Summerton’s notification to Landlord that
Tenant planned on vacating in the future did not amount to an unqualified renunciation or
repudiation of the contract. It did not amount to an unqualified renunciation because t he
lease provided multiple ways for Tenant to vacate the premises and still fulfill its
obligations under the lease. For example, the lease permitted Tenant to assign or sublet
the entire premises with Landlord ’s consent, provided that Landlord’s consent not be
unreasonably withheld or dela yed. The complaint acknowledges that Tenant was indeed
considering these very options.
Because the lease provided options for T enant to vacate the premises without
breaching, the mere statements that Tenant was planning on vacating in the future, coupled
with its statement that it would like to work toward finding a suitable replacement tenant,
do not amount to an unqualified renunciation or repudiation of the contract. Consequently,
taking the facts alleged in the complaint as true, respondents are entitled to dismissal of the
anticipatory breach claim as a matter of law.
While we conclude that the district court did not err when it dismissed appellant’s
anticipatory breach claim, we also note that appellant’s attempt to plead around the limited
contractual guarantee is unconvincing. Under the guarantee, Guarantor agreed only to
“make [any payment] or perform . . . each covenant ” during the period between “the
execution of the L ease and the last day of the Guarantee Term.” The guara ntee t erm
covered the first full 60 months after the rent commencement date. However, appellant

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did not plead that Tenant failed to perform any covenant during the guarantee t erm.
Appellant pleaded only that Tenant was planning on breaching after the guarantee term.
Moreover, the limited guarantee provided that if Tenant committed “a material
default under the lease” that “Landlord [had] the right to demand from Guarant or the
Guarantee Amount.” The “Guarantee Amount” was “an amount equal to Rent dur ing the
Guarantee Term and the total unamortized Allowance and the unamortized Storefront
Allowance (as described in the Lease).” Here, again, appellant did not plead that Tenant
failed to pay rent during the guarantee term, such that part of the guarante e amount was
still owed. On the contrary, appellant ple aded that Tenant remained in possession of the
premises and continued to pay rent for around nine months after the expiration of the
guarantee term. Consequently, even if appellant had alleged an unqualified renunciation
of the contract, the doctrine of anticipatory breach would not allow appellant to extend the
limited contractual guarantee, by increasing the length of the guarantee term, thereby
increasing the guarantee amount.
Unjust Enrichment
Appellant argues that the district court erred in dismissing its claim for unjust
enrichment. The district court found that a claim for un just enrichment cannot be made
because the rights of the parties are governed by a valid contract. See Midwest Sport s
Mktg., Inc. v. Hillerich & Bradsby of Canada, Ltd. , 552 N.W.2d 254, 268 (Minn. App.
1996) (holding that when the parties ’ rights are governed by a valid contract, a claim for
unjust enrichment fails as a matter of law) . Appellant concedes that “if the Lease and
Guaranty fully govern the parties’ rights that unjust enrichment is unavailable.” However,

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appellant argues that litigants are permitted to plead alternative theories of relief and,
therefore, it was improper to dismiss the unjust enrichment claim before discovery.
Appellant relies on Schumacher v. Schumacher, 627 N.W.2d 725, 729 (Minn. App.
2001) for the proposition that it is improper to dismiss an unjust enrichment claim on a
motion for judgment on the pleadin gs. In Schumacher, this court overturned the district
court’s finding that the plaintiff did not plead unjust enrichment with enough specificity.
627 N.W.2d at 729; see Minn. R. Civ. P. 8.05 (“Each averment of a pleading shall be
simple, concise, and direct. No technical forms of pleading or motions are required.”). But
Schumacher is distinguishable from the case at hand. In this case, the district court did not
dismiss appellant’s claim for unjust enrichment because appellant failed to plead the claim
with enough specificity. The district court dismissed appellant’s claim because it rightfully
concluded that a claim for unjust enrichment cannot be maintained when the rights of the
parties are governed by a valid contract. See Midwest Sports Mktg., 552 N.W.2d at 268.
The district court did not err in dismissing the claim for unjust enrichment.
Affirmed.