SV AP III Riverdale Commons LLC, a Delaware limited liability company, Respondent, vs. Coon Rapids Gyms, LLC, dba Xperience Fitness, a Minnesota limited liability company, Appellant.

STATE OF MINNESOTA
IN COURT OF APPEALS
A20-1593
SV AP III Riverdale Commons LLC, a Delaware limited liability company,
Respondent,
vs.
Coon Rapids Gyms, LLC, dba Xperience Fitness, a Minnesota limited liability company,
Appellant.
Filed September 27, 2021
Affirmed
Johnson, Judge
Anoka County District Court
File No. 02-CV-20-3652
Nicholas H. Callahan, Barack, Ferrazzano, Kirschbaum & Nagelberg, L.L.P., Minneapolis,
Minnesota (for respondent)
Kevin D. Hofman, Rory C. Mattson, Messerli & Kramer, P.A., Minneapolis, Minnesota
(for appellant)
Considered and decided by Johnson, Presiding Judge; Bryan, Judge; and Frisch,
Judge.
SYLLABUS
A commercial tenant may not defend against an eviction action alleging non­
payment of rent by asserting the common-law doctrines of impossibility or frustration of
purpose.
OPINION
JOHNSON, Judge
In March 2020, the governor issued an emergency executive order that required
gymnasiums and fitness centers to be temporarily closed to the public because of the
COVID-19 pandemic. A company that was leasing commercial space for use as a fitness
center stopped paying rent while the fitness center was closed to the public. The landlord
filed an eviction action based on the tenant's non-payment of rent. The tenant argued to
the district court that its obligation to payrent was excused by the common-law doctrines
of impossibility and frustration of purpose and by the landlord's alleged prior breach of the
lease. The district court granted the landlord's motion for summary judgment and issued
a writ of recovery. We affirm.
FACTS
SV AP III Riverdale Commons L.L.C. (hereinafter SV AP) is a Delaware company
that owns a shopping center known as Riverdale Commons, which is in the city of Coon
Rapids. Coon Rapids Gyms L.L.C. (hereinafter CRG), is a Minnesota company that
operates one or more fitness centers known as Xperience Fitness.
In December 2017, CRG entered into a written lease agreement for space in
Riverdale Commons for use as a fitness center. CRG leased the premises for a ten-year
term, beginning July 1, 2019.
On March 13, 2020, the governor issued Emergency Executive Order (EEO) 20-01,
which declared a peacetime emergency due to the COVID-19 pandemic. Emerg. Exec.
Order No. 20-01, Declaring a Peacetime Emergency & Coordinating Minnesota's Strategy
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to Protect Minnesotans from COVID-19, at 2-3 (Mar. 13, 2020). On March 16, 2020, the
governor issued EEO 20-04, which ordered that certain places of public accommodation
be closed to the public no later than the following day, including "[g]ymnasiums, fitness
centers, recreation centers, indoor sports facilities, indoor exercise facilities, exercise
studios, and spas." Emerg. Exec. Order No. 20-04, Providing for Temporary Closure of
Bars, Restaurants, & Other Places of Public Accommodation, at 2 (Mar. 16, 2020).
CRG complied with EEO 20-04 by temporarily closing Xperience Fitness. CRG
gave notice to SV AP that, in light of the temporary closure, CRG's "perfonnance will be
delayed and/or suspended accordingly." While Xperience Fitness was temporarily closed,
CRG continued to have access to the leased premises and kept its exercise equipment and
other property on the premises. Xperience Fitness reopened in mid-June 2020, when CRG
was allowed by EEO 20-7 4 to resume operations to a limited extent. See Emerg. Exec.
Order No. 20-74, Continuing to Safely Reopen Minnesota's Economy & Ensure Safe Non­
Work Activities During the COVID-19 Peacetime Emergency, at 6-11 (June 5, 2020).
CRG receives revenue from customers ofXperience Fitness in the form of monthly
dues. In March 2020, CRG received monthly dues totaling $142,974 from customers of
the Coon Rapids Xperience Fitness. In April and May of 2020, CRG suspended the
collection of dues from customers of the Coon Rapids Xperience Fitness. In June 2020,
when Xperience Fitness re-opened at reduced capacity, CRG collected $8,198 in dues from
customers of the Coon Rapids Xperience Fitness.
The parties' lease agreement required CRG to pay rent in the amount of $63,031 per
month between April and July of 2020. CRG did not pay any rent to SV AP for the months
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of April, May, June, and July of 2020. On July 29, 2020, SV AP sent CRG a notice of
default, which stated that the lease would be terminated unless CRG paid the overdue rent
within 30 days. CRG resumed making monthly rent payments in August 2020 but did not
cure the default by paying the rent owed for the months of April through July of 2020.
In September 2020, SV AP commenced this eviction action. In October 2020, both
parties moved for summary judgment. CRG argued that its obligation to pay rent to SV AP
for the months·of April through July of 2020 should be excused based on the doctrines of
impossibility and frustration of purpose and on SVAP's non-perfonnance of its contractual
obligation to provide premises that could be used as a fitness center. SV AP argued that it
was entitled to possession of the premises because CRG had, without justification, not paid
rent. SV AP also argued that CRG could not establish impossibility and frustration of
purpose and that SV AP had complied with its lease obligations.
In December 2020, the district court filed an order in which it granted SVAP's
motion and denied CRG' s motion. The district court noted that it was undisputed that CRG
had not paid rent for the months of April through July 2020. The district court reasoned
that CRG could not apply the doctrines of impossibility and frustration of purpose in an
eviction action but may be able to assert them in an action by SV AP to recover unpaid rent.
The district court also reasoned that SVAP did not breach the lease agreement because it
"continually upheld its end of the Lease by providing possession of the Premises to the
Tenant." The district court ordered the entry of judgment in favor of SVAP and ordered
the issuance of a writ of recovery. CRG appeals.
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ISSUES
I. May CRG, a commercial tenant, defend against SV AP' s eviction action
alleging non-payment of rent by asserting the common-law doctrines of impossibility or
frustration of purpose?
II. May CRG defeat SVAP's eviction action on the ground that SVAP breached
the lease agreement by not providing CRG with access to the leased premises for their
intended purposes?
ANALYSIS
CRG argues that the district court erred by granting SVAP's motion for summary
judgment. A district court must grant a motion for summary judgment "if the movant
shows that there is no genuine issue as to any material fact and the movant is entitled to
judgment as a matter of law." Minn. R. Civ. P. 56.01. A genuine issue of material fact
exists if a rational trier of fact, considering the record as a whole, could find for the non­
moving party. Frieler v. Carlson Mktg. Grp., Inc., 751 N.W.2d 558, 564 (Minn. 2008).
This court applies a de nova standard of review to the district court's legal conclusions on
summary judgment and views the evidence in the light most favorable to the party against
whom the motion was granted. Commerce Bankv. West Bend Mut. Ins. Co., 870 N.W.2d
770, 773 (Minn. 2015).
I.
CRG first argues that the district court erred on the ground that its evidence creates
a genuine issue of material fact with respect to the doctrines of impossibility and frustration
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of purpose. In response, SV AP argues that the doctrines of impossibility and frustration
of purpose do not apply.
Because this is an eviction action, we begin our analysis with chapter 504B of the
Minnesota Statutes. The applicable statute provides, "A landlord may bring an eviction
action for nonpayment of rent .... " Minn. Stat. § 504B.291, subd. l(a) (2 0 20). The same
statute provides that a tenant may defend against such an action by proving that rent
actually has been paid. See id. ( discussing rebuttable presumption in third, fourth, and fifth
sentences). Also, "the tenant may, at any time before possession has been delivered," avoid
a finding of non-payment "by paying ... the amount of the rent that is in arrears, with
interest, costs of the action, and an attorney's fee not to exceed $5." Id. In addition, if a
landlord seeks eviction based on both a lease violation and non-payment of rent but does
not prove the alleged lease violation, the tenant "shall be pennitted to present defenses to
the court that the rent is not owing." Minn. Stat. § 504B.285, subd. 5(c) (2 0 20).
In addition, caselaw illustrates that a tenant may defend against an eviction action
alleging non-payment of rent by proving that rent is not unpaid because it is not due. See,
e.g., ACC OP (University Commons), LLC v. Rodriguez, 906 N.W.2d 509, 511-1 2 (Minn.
App. 2017) (holding that landlord could not evict tenant for non-payment of rent based on
unpaid attorney fees exceeding statutory limit of five dollars); Mac-Du Props. v. LaBresh,
39 2 N.W.2d 315, 317-18 (Minn. App. 1986) (holding that tenant may not be obligated to
pay rent because of condition precedent in lease stating that rent is due 30 days after
issuance of certificate of occupancy), rev. denied (Minn. Oct. 29, 1986); cf University
Cmty. Props., Inc. v. New Riverside Cafe, 268 N.W.2d 573, 574 (Minn. 1978) (noting that
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jury rejected tenant's affinnative defense "that nonpayment of rent was pursuant to an
alleged oral agreement [that] allowed [tenant] to make repairs and offset that cost against
rent"). But if rent is due and unpaid, the analysis is straightforward and clear: "Where the
plaintiff shows defendant in possession under a lease, and failure to pay the stipulated rent,
his cause of action under the statute is complete. The defenses that can be interposed are
strictly limited." Leifman v. Percansky, 243 N.W. 446, 448 (Minn. 1932) (citations
omitted).
The eviction statute expressly provides for only one affirmative defense in an
eviction action based solely on non-payment of rent. Specifically, the statute allows a
tenant to defeat such an action if the tenant proves "that the plaintiff increased the tenant's
rent or decreased the services as a penalty in whole or part" because of the tenant's "good
faith attempt to secure or enforce rights under a lease" or "good faith report to a
governmental authority of the plaintiffs violation of a health, safety, housing, or building
code or ordinance." Minn. Stat. § 504B.285, subds. 2, 3.
The absence of additional affirmative defenses is consistent with the limited nature
and purpose of an eviction action. The eviction statute defines the term "eviction" to mean
"a summary court proceeding to remove a tenant or occupant from or otherwise recover
possession of real property." Minn. Stat. § 504B.001, subd. 4 (2020); see also University
Cmty. Props., Inc. v. Norton, 246 N.W.2d 858, 860 (Minn. 1976) (stating that purpose of
then-existing eviction statute was "to provide a summary proceeding to quickly determine
the present right to possession of premises"). The summary nature of an eviction action is
made clear by the fact that the summons must specify the date of a hearing, Minn. Stat.
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§ 504B.321, subd. l(c) (2020), and the district court must "hear and decide the action" at
that hearing, unless a continuance is granted, Minn. Stat. § 504B.335(a) (2020), but a
continuance in an action alleging non-payment of rent may be "no more than six days
unless all parties consent to longer continuance," Minn. Stat. § 504B.34l(a) (2020). The
scope of an eviction action is especially narrow if the tenant has only a leasehold interest
in the property and has no basis for alleging an ownership interest or equitable interest.1
In this case, SV AP sought to evict CRG based on CRG's non-payment ofrent. CRG
does not attempt to identify a provision in the eviction statute that would allow it to avoid
eviction on the grounds of impossibility or frustration of purpose, despite its non-payment
of rent for the months of April through July of 2020. The only relevant factual issue is
whether CRG has or has not paid rent that is due to SV AP. See Minn. Stat. § 504B.291,
subd. l(a); Leifinan, 243 N.W. at 448.
CRG also has not cited any caselaw for the proposition that a tenant may defeat an
eviction action by establishing the common-law doctrines of impossibility or frustration of
purpose. It appears that the supreme court has recognized only two common-law
affinnative defenses to an eviction action. First, in Fritz v. Warthen, 213 N.W.2d 340
(Minn. 1973), the supreme court held that a residential tenant may defend against an
1Eviction actions that follow a mortgage foreclosure or cancellation of a contract for
deed sometimes raise additional issues that are not present in this case. See, e.g., Deutsche
Bank Nat'l Trust Co. v. Hanson, 841 N.W.2d 161, 164-66 (Minn. App. 2014); Bjorklund
v. Bjorklund Trucking, Inc., 753 N.W.2d 312, 317-20 (Minn. App. 2008), rev. denied
(Minn. Sept. 23, 2008); Real Estate Equity Strategies, LLC v. Jones, 720 N.W.2d 352, 355-
59 (Minn. App. 2006); Fraser v. Fraser, 642 N.W.2d 34, 39-41 (Minn. App. 2002);
Amresco Residential Mortg. Corp. v. Stange, 631 N.W.2d 444, 445-46 (Minn. App. 2001).
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eviction action by asserting that rent payments should be excused because the landlord
breached the statutory covenant of habitability. Id. at 340-43; see also Ellis v. Doe, 924
N.W.2d 258, 261 (Minn. 2019) (describing defense recognized in Fritz as "common-law
right"). Second, in Central Housing Associates, LP v. Olson, 929 N.W.2d 398 (Minn.
2019), the supreme court held that residential tenants "have a common-law defense to
landlord evictions in retaliation for tenant complaints about material violations by the
landlord of state or local law, residential covenants, or the lease." Id. at 409. The common­
law defenses recognized in Fritz and Olson plainly do not apply in this case. Those
defenses are limited to residential leases; they do not extend to commercial leases. See
Olson, 929 N.W.2d at 409; Fritz, 213 N.W.2d at 341-42. In addition, the defenses
recognized in Fritz and Olson do not incorporate the doctrines of impossibility or
frustration of purpose.
We are disinclined to recognize for the first time common-law affirmative defenses
of impossibility or frustration of purpose in an eviction action alleging non-payment of
rent. In Olson, the supreme court stated that it is "generally reluctant to recognize a new
common-law right or remedy." 929 N.W.2d at 408. This court is even more reluctant to
do so. We have stated many times that "the task of extending existing law falls to the
supreme court or the legislature, but it does not fall to this court." Tereault v. Palmer, 413
N.W.2d 283, 286 (Minn. App. 1987), rev. denied (Minn. Dec. 18, 1987); see also Otto v.
Commissioner of Pub. Safety, 924 N.W.2d 658, 661 (Minn. App. 2019); Forslund v. State,
924 N.W.2d 25, 35 (Minn. App. 2019). Furthennore, the present eviction statute does not
expressly allow defendants to plead "all matters in excuse, justification, or avoidance," as
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was true when the Fritz opinion was issued. See Fritz, 213 N.W.2d at 342 (quoting Minn.
Stat. § 566.07). Rather, the present eviction statute omits such language and states that
"the defendant may answer the complaint" "[a]t the court appearance specified in the
summons," i.e., the hearing at which "the court shall hear and decide the action." Minn.
Stat. § 504B.335(a). Accordingly, we decline CRG's request that we recognize
impossibility and frustration of purpose as affinnative defenses to an eviction action based
on non-payment of rent. In light of that conclusion, we need not analyze the requirements
of the doctrines of impossibility or frustration of purpose or the evidence that might be
relevant to those doctrines.
Thus, CRG may not defend against SV AP's eviction action by asserting the
common-law doctrines of impossibility or frustration of purpose.2
2 We note, however, that nothing in this opinion would prevent CRG from asserting
impossibility or frustration of purpose in another type of action, such as an action by SV AP
to recover damages for CRG' s unpaid rent, an action by CRG for reformation or rescission,
or an action by CRG alleging ejectment. See, e.g., Berg v. Wiley, 226 N.W.2d 904, 906-
07 (Minn. 1975) (holding that tenant may not use eviction statute to take repossession of
leased premises after lock-out but stating in dicta that tenant's "proper remedy ... was an
ejectment action"); Strupp v. Canniff, 150 N.W.2d 574, 575-76 (Minn. 1967) (per curiam)
(considering but rejecting tenant's constructive-eviction defense to landlord's action for
damages); Cohen v. Conrad, 124 N.W. 992, 993-94 (Minn. 1910) (considering but
rejecting tenant's defense to landlord's action for damages that rent was not owing because
lease was void). Because of the limited scope of an eviction action, a judgment entered in
an eviction action "is not a bar to an action involving the title to the property [or] an action
to maintain or enforce equitable rights therein." William Weisman Holding Co. v. Miller, 188 N.W. 732, 733 (Minn. 1922).
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II.
CRG also argues that the district court erred on the ground that its evidence creates
a genuine issue of material fact with respect to its claim that SV AP breached the lease
agreement by not providing CRG with access to the leased premises for the intended
purposes. In response, SV AP argues that it fully performed its lease obligations.
Again, CRG does not attempt to identify a provision in the eviction statute that
would allow it to avoid eviction on the grounds asserted, despite its non-payment of rent
for the months of April through July of 2020. Again, the only relevant factual issue is
whether CRG has or has not paid rent that is due to SV AP. See Minn. Stat. § 504B.291,
subd. l(a); Leifman, 243 N.W. at 448.
In addition, caselaw illustrates that CRG may not avoid eviction by proving that
SV AP breached the lease agreement. CRG's argument is similar to the argument of the
tenant in Leifman, who sought to prove that he had been constructively evicted because he
was prevented from using some of the premises described in the lease agreement. Id. at
447. The supreme court rejected the tenant's argument on the ground that the tenant
continued to use the leased premises, stating: "There can be no constructive eviction
without the abandonment by the tenant of the leased premises. In such case the tenant
remains liable for all rent which accrues during his occupancy." Id. CRG's argument also
is similar to the argument of the tenant in Carlson Real Estate Co. v. Soltan, 549 N.W.2d
376 (Minn. App. 1996), rev. denied (Minn. Aug. 20, 1996). In that case, the tenant
defended against an eviction action by arguing that the landlord committed a prior breach
of certain lease provisions, which prevented the tenant from using the leased premises. Id.
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at 379-80. This court rejected the tenant's argument, stating that "although [the landlord's]
breach might well have justified [the tenant] in tenninating the lease, the breach does not
justify [the tenant] in continuing the relationship under a new or modified charter." Id. at
380. We stated further that the tenant's proper remedies for the landlord's prior breach are
"damages or termination of the lease." Id. In this case, CRG has not abandoned the
premises. Rather, CRG seeks to retain possession of the premises but to be excused from
its obligation to pay rent for the months of April through July of 2020. CR G's defense is
foreclosed by Leif,nan and Carlson Real Estate.
Furthennore, CRG's argument that SV AP breached the lease agreement is without
merit. CRG identifies only one provision of the lease that allegedly was breached: section
1.6. The primary purpose of section 1.6 is to restrict CRG's use of the leased premises to
"only the operation of a fitness center and workout facility with amenities and services
consistent with a typical gym operation." CRG relies on a sentence in section 1.6 that
states, "Landlord represents and warrants to Tenant" that certain use restrictions in three
exhibits to the lease "are the only restrictions affecting Tenant's use" and that "such Use
Restrictions do not prohibit the use of the Premises for the Pennitted use." SV AP did not
breach that provision of section 1.6 because the specified use restrictions are the only
contractual restrictions affecting CR G's use of the leased premises. Nothing in the lease
agreement makes SV AP responsible for the temporary changes in law arising from the
emergency executive orders. Indeed, another provision of the lease states that CRG is
required to "comply with any and all requirements of any public authority, and with the
terms of any State or Federal law, statute or local ordinance or regulation applicable to
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Tenant for its use, safety, cleanliness or occupation of the Premises." Accordingly, SV AP
did not take any action that prohibited or restricted CRG's use of the leased premises.
Thus, CRG may not defeat SVAP's eviction action on the ground that SVAP
committed a prior breach of the lease agreement unless CRG has abandoned the leased
premises, and there is no genuine issue of material fact as to whether SV AP breached the
lease agreement.
DECISION
In sum, the district court did not err by granting SV AP's motion for summary
judgment.
Affirmed.
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