Fitness International, LLC, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A22-1057

Fitness International, LLC,
Appellant,

vs.

City Center Ventures, LLC,
Respondent.

Filed February 27, 2023
Affirmed
Bryan, Judge

Hennepin County District Court
File No. 27-CV-21-3969

John C. Holper, Winthrop & Weinstine, P.A., Minneapolis, Minnesota; and

A. Grant Phelan (pro hac vice) , Klehr Harrison Harvey Branzburg LLP, Philadelphia,
Pennsylvania (for appellant)

John J. Steffenha gen, Brian N. Niemczyk, Hellmuth & Johnson, PLLC, Edina, Minnesota
(for respondent)

Considered and decided by Bryan, Presiding Judge; Ross, Judge; and Larkin, Judge.
NONPRECEDENTIAL OPINION
BRYAN, Judge
In this action to obtain a refund of rental payments, appellant tenant challenges the
district court’s decision to grant summary judgment in favor of landlord respondent.
Appellant argues that th is court should reverse the decision of the district court for the
following three reasons: (1) respondent breached the lease covenants when the emergency
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executive orders of the State of Minnesota prohibited appellant from using the premises
for certain purposes; (2) the doctrines of impossibility and impracticability, the force
majeure clauses in the contract, and the frustration-of-purpose doctrine excused appellant’s
obligation to pay rent and justify return of the paid amounts; and (3) because of the
provisions of the lease requiring respondent to pay interest on any late payments to
appellant, respondent owes appellant interest on the late renovation contribution payment
that respondent made to appellant pursuant to a subsequent agreement regarding renovation
of the premises.
We affirm the district court’s decision because undisputed facts establish that
respondent did not breach the lease, none of appellant’s asserted arguments based on
affirmative defenses apply in this case, and the interest provisions of the lease do not apply
to the payments made pursuant to the subsequent renovation agreement.
FACTS
Appellant Fitness International LLC (Fitness) owns and operates a chain of fitness
centers throughout the United States and Canada. Respondent City Center Ventures LLC
(City Center) is a Minnesota corporation that owns and acts as landlord of commercial real
estate. In 2007, the parties entered into a retail lease agreement for a property (the
premises) owned by City Center in Hopkins, Minnesota. The lease contains several
provisions relevant to the arguments presented.
In section 1.9, City Center agreed that “[Fitness] shall have the right throughout the
Term to operate the [premises], or any portion thereof, for uses permitted under this Lease.”
The permitted uses include “the operation of a health club and fitness facility” as well as
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other related uses, including provision of nutritional advice, conducting swim lessons, and
operating a juice bar, among others . Section 2.2(b) states that “[Fitness] shall have,
throughout the entire Term and any extensions and renewals hereof, peaceful and quiet
possession and enjoyment of the [ premises] without any ejection by [ City Center ] or by
any other person by, through or under [City Center].” Subject to Fitness’s adherence to
the terms to which it agreed, City Center promised that “[Fitness] shall have . . . peaceful
and quiet possession and enjoyment of the [premises] without any ejection by [City Center]
or by any other person by, through or under [City Center].” 1 The parties also agreed that
the specified “ representations, warranties and covenants” in the lease were “ material
and . . . relied upon by [Fitness].”
In section 8.3, Fitness agreed that it would “not use or allow the [ premises] to be
used for any illegal purpose s” and in section 8.2, City Center agreed that Fitness had “the
right to change the use of the [premises] to any alternate legal use” any time after using the
premises for one day . The lease also includes a force majeure clause in section 22.3 that
could apply “[i]f either party is delayed or hindered in or prevented from the performance
of any act required hereunder because of . . . restrictive laws . . . [and] subject to any
limitations expressly set forth elsewhere in this Lease .” Should a party be unable to
perform a required act due to a “ Force Majeure Event,” sectio n 22.3 provides that
“performance of such act shall be excused for the period of delay caused by the Force

1 A nearly identical warranty is also contained in section 22.1 of the lease: “ [Fitness] shall
quietly enjoy the [ premises] for the Term without hindrance or interruption by [ City
Center] or any other person or persons lawfully or equitably claiming by, thr ough or under
[City Center].”
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Majeure Event.” This section also excepts “financial inability” from the possible required
events covered by the provision and states that “[d]elays or failures to perform resulting
from lack of funds or which can be cured by the payment of money shall not be Force
Majeure Events.” Finally, section 19.7 of the lease obligates City Center to pay interest on
late payments due to Fitness: “[a]ny amount due from [City Center] to [Fitness] shall bear
interest at the Interest Rate from the date due until paid.” Section 1.13 specified that the
interest rate would be” the lesser of (i) three percent (3%) per annum over the most recent
annual prime or reference rate of interest announced by Bank of America . . . or (ii) the
maximum rate permitted by Applicable Laws.”
In 2019, the parties entered into an amendment to the lease agreement (the
amendment) specifying that , among other things, Fitness could renovate the premises and
that City Center would contribute up to $450,000 to the cost of renovation, payable within
30 days of written notification by Fitness. The amendment also includes the following
integration clause: “This First Amendment constitute s the entire agreement and
understanding between the parties with respect to the subject of this First Amendment and
shall supersede all prior written and oral agreements concerning this subject matter.”
Fitness renovated the premises and, on March 27, 2020, notified City Center of the
completed renovations. City Center paid Fitness $450,000 on July 16, 2020, 80 days after
the due date of April 27, 2020. City Center did not pay interest for those 80 days.
Fitness paid timely rent from the beginning of the lease through March 2020.
Beginning March 17, 2020, the State of Minnesota prohibited all businesses from operating
as fitness centers. Emerg. Exec. Order No. 20- 04, Providing for Temporary Closure of
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Bars, Restaurants, and Other Places of Public Accommodation (Mar. 16, 2020). The State
of Minnesota allowed fitness centers to re -open in June 2020 if they followed specific
restrictions and guidelines, including capacity limits and other industry guidance. Emerg.
Exec. Order No. 20- 74, Continuing to Safely Reopen Minnesota’s Economy and Ensure
Safe Non- Work Activities during the COVID -19 Peacetime Emergency (June 5, 2020).
Minnesota law again prohibited business es from operating as fitness centers from
November 21 to December 18, 2020. Emerg. Exec. Order No. 20-99, Implementing a Four
Week Dial Back on Certain Activities to Slow the Spread of COVID -19 (Nov. 19, 2020);
Emerg. Exec. Order No. 20-103, Extending and M odifying Executive Order 20 -99 (Dec.
17, 2020). During both closures, Fitness suspended collection of membership fees , but
Fitness paid rent to City Center covering the entire duration of both closures.
Fitness brought this action seeking to recover the a mounts paid during both closure
periods. Both parties filed motions for summary judgment , and the relevant facts are not
disputed. The district court denied Fitness’s summary judgment motion and granted City
Center’s summary judgment motion. The district court also awarded City Center attorney
fees and costs. This appeal follows.
DECISION
Fitness makes three primary arguments on appeal. First, Fitness argues that the
district court erred in granting summary judgment because City Center breached the lease
covenants during the periods of time when Minnesota law prohibited Fitness from using
the premises for certain purposes . Because we agree with the district court that the
6
undisputed facts show that City Center did not breach the lease, granting summary
judgment in favor of City Center was appropriate.
Second, Fitness argues that the doctrines of impossibility and impracticability, the
force majeure clauses in the contract , and the frustration-of-purpose doctrine justify
refunding the amount Fitness paid in rent during the periods of time that Minnesota law
prohibited Fitness from using the premises for certain purposes. Because Fitness cites to
no binding legal authority that Fitness can apply these legal theori es to City Center’s
performance and because Fitness cannot establish the requirements of the frustration- of-
purpose defense , summary judgment was appropriate.
Finally, Fitness argues that the interest provisions of section 19.7 of the lease require
City Ce nter to pay interest on the late renovation contribution payment. Because the
amendment contained an integration clause and because the lease did not contemplate
renovation contributions, we agree with the district court’s decision not to require City
Center to pay interest on its renovation payment. 2
A grant of summary judgment is appropriate “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

2 Fitness also argues the district court awarded attorney fees and costs in violation of
Minnesota Rule of Civil Procedure 54.04(d). Because this rule governs costs and
disbursements “provided by law,” Minn. R. Civ. P. 54.04(a), and because the district court
awarded attorney fees and costs based on the parties’ contract, we deem the issue forfeited.
Waters v. Fiebelkorn, 13 N.W.2d 461, 464- 65 (Minn. 1944) (“[O]n appeal error is never
presumed. It must be made to appear affirmatively before there can be reversal. . . . [T]he
burden of showing error rests upon the one who relies upon it.” ); see also State v. Modern
Recycling, Inc., 558 N.W.2d 770, 772 (Minn. App. 1997) (“An assignment of error based
on mere assertion and not supported by any argument or authorities in appellant ’s brief is
[forfeited] . . . .” (quotation omitted)).
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law.” Minn. R. Civ. P. 56.01. On appeal from summary judgment, an appellate court
reviews “de novo whether there are any genuine issues of material fact and whether the
district court erred in its application of the law to the facts.” Great N. Ins. Co. v. Honeywell
Int’l, Inc., 911 N.W.2d 510, 514 (Minn. 2018) (quotation omitted) . “I n conducting this
review, we view the evidence in the light most favorable to the nonmoving party and
resolve all doubts and factual inferences against the moving part[y].” Fenrich v. Blake
Sch., 920 N.W.2d 195, 201 (Minn. 2018) (quotation omitted). When no material fact
dispute exists, the interpretation of a contract is appropriate for summary judgment.
Brookfield Trade Ctr., Inc. v. C ounty of Ramsey, 584 N.W.2d 390, 394 (Minn. 1998) .
“[A] lease is a form of a contract.” Metro. Airports Comm’n v. Noble, 763 N.W.2d
639, 645 (Minn. 2009). “A breach of contract is a failure, without legal excuse, to perform
any promise that forms the whole or part of the contract.” Lyon Fin. Servs., Inc . v. Ill.
Paper & Copier Co., 848 N.W.2d 539, 543 (Minn. 2014) . When reviewing contract ual
language, the “construction and effect of a contract” is a question of law reviewed de novo
“unless the contract is ambiguous.” Denelsbeck v. Wells Fargo & Co. , 666 N.W.2d 339,
346 (Minn. 2003) . Here, neither party argues that the contract includes any ambiguous
terms, and we note that “[a] contract’s terms are not ambiguous simply because the parties’
interpretations differ.” Staffing Specifix, Inc., v. Tempworks Mgmt. Servs., Inc., 913
N.W.2d 687, 692 (Minn. 2018). Courts give unambiguous language in a contract “its plain
and ordinary meaning,” and that meaning “shall be enforced by courts even if the result is
harsh.” Denelsbeck, 666 N.W.2d at 347 (quotation omitted). The contract must be read
according to “the meaning assigned to the words and phrases in accordance with the
8
apparent purpose of the contract as a whole .” Halla Nursery, Inc. v. City of Chanhassen ,
781 N.W.2d 880, 884 (Minn. 2010) .
I. Determination that City Center Did Not Breach the Lease
Fitness first argues that the district court erred in determining that City Center di d
not breach sections 1.9 and 2.2 of the lease. We agree with the district court regarding both
provisions.
In section 1.9, City Center agreed that Fitness could use the premises for certain
enumerated purposes, including as a fitness facility. In section 2.2 of the lease, City Center
warranted that neither it nor anyone on its behalf would prevent Fitness’s use of the
premises: “[Fitness] shall have . . . peaceful and quiet possession and enjoyme nt of the
[premises] without any ejection by [City Center] or by any other person by, through or
under [City Center].” During the closure periods, the State of Minnesota prohibited Fitness
from using the premises as a fitness center .
Contrary to Fitness’s argument, t hese facts alone cannot establish breach by City
Center and additional undisputed facts show that City Center did not breach the lease .
Fitness does not dispute that in section 8.3 of the lease, Fitness expressly agreed not to use
the premises for any illegal purposes. Fitness also does not dispute that use of the premises
as a fitness center during the closure periods would have been illegal. 3 Compliance with
section 8.3 cannot constitute a breach of sections 1.9 and 2.2. Such a conclusion is also

3 Violations of the executive orders constitute criminal misdemeanors. Emerg. Exec. Order
Nos. 20-04, 20-74, 20-99, 20-103; see also Minn. Stat. § 12.45 (2020) (establishing that
violations of emergency executive orders are misdemeanor criminal offenses) .
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supported by this court’s recent analysis in SVAP III Riverdale Commons LLC v. Coon
Rapids Gyms, LLC , 967 N.W.2d 81, 88 (Minn. App. 2021) . In that case, we concluded
that the landlord was not “ responsible for the temporary changes in law arising from the
emergency executive orders” noting that the lease included a provision that the tenant was
required to comply with any and all laws and regulations applicable to the “ use, safety,
cleanliness or occupation of the Premises.” Finally, as it relates specifically to section 2.2,
the restriction on Fitness’s use of the premises was not imposed by City Center or enforced
by anyone acting on City Center’s authority or behalf. For these reasons, we conclude that
City Center did not breach the lease during the closure periods. 4
II. Application of Legal Defenses as Theories Supporting Fitness’s Claims
Fitness also argues that the doctrine of temporary impossibility, the doctrine of
impracticability, the force majeure clause in the parties’ lease , and the doctrine of
frustration of purpose support its claim for a refund of rent paid during the closure periods.
We are not persuaded because the se legal theories are defenses to a breach -of-contract
claim, excusing a party for not performing a required act . Fitness cites to no binding
authority allowing Fitness to assert these defenses in support of its claim that City Center

4 In section 1.9, City Center agreed that the uses listed would not “violate any agreements
respecting exclusive use rights or restrictions on use.” T o the extent any portion of
Fitness’s brief can be construed as an argument that the phrase “restrictions on use”
includes the Emergency Executive Orders and is not merely modifying the term
“agreements” as u sed in that sentence, Fitness failed to raise this argument be fore the
district court, and we decline to address it on appeal. Thiele v. Stich, 425 N.W.2d 580, 582
(Minn. 1988) (stating that a party cannot raise a new issue on appeal or obtain review by
raising an issue litigated below under a different theory ).
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breached the contract . In addition, the undisputed facts cannot satisfy the requirements of
the doctrine of frustration of purpose.
The doctrine s of impossibility and impracticability can excuse a party’s
nonperformance when,
due to the existence of a fact or circumstance of which the
promisor at the time of the making of the contract neither knew
nor had reason to know, performance becomes impossible, or
becomes impracticable in the sense that performance would
cast upon the promisor an excessive or unreasonably
burdensome hardship, loss, expense, or injury.

Powers v. Siats , 70 N.W.2d 344, 348 (1955) (footnote omitted) . Mere difficulty of
performance alone will not ordinarily excuse a party from its contractual obligations. Id.
at 349. Similarly, the force majeure clause in section 22.3 of the lease excuses “ the
performance of any act require d” when the performing party is delayed , hindered, or
otherwise prevented from the performance of the required act: “performance of such act
shall be excused for the period of delay caused by the Force Majeure Event. ” Fitness
acknowledges that it performe d its obligations under the lease and continued to pay rent
during the closure period. Instead of arguing its nonperformance should be excused,
Fitness argues that the opposing party, City Center, was hindered from performing required
acts, something City Center disputes. Fitness directs us to no legal authority that permits
use of these legal theories to establish a breach of contract , and we are aware only of
Minnesota authorities relying on these legal theories to excuse the nonperformance of an
act required by the party asserting these theories. We decline to extend these legal theories
as Fitness urges.
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Moreover, even if these theories applied, it is undisputed that section 8.2 provided
Fitness the option to use the premises for “any alternate legal use” any time after using the
premises for one day. Fitness does not explain how, given that section 8.2 allowed Fitness
to pursue any alternate legal use of the premises, City Center’s performance could have
been impossible, impractical, or otherwise hindered by a force majeure event.
Fitness also argues that its obligation to pay rent was temporarily excused by the
doctrine of frustration of purpose. We disagree for two reasons. First, like the legal
theories addressed above, Fitness cites to no authority permitting the frustration-of-purpose
doctrine to be used to establish a breach-of-contract claim. Indeed, this court has concluded
the contrary, concluding that that a party may not “use the defense of frustration of purpose
as a sword r ather than a shield.” Little Canada Charity Bingo Hall Ass ’n v. Movers
Warehouse, Inc., 498 N.W.2d 22, 24- 25 (Minn. App. 1993) , rev. denied (Minn. May 18,
1993). Second, Fitness cannot establish the requirements of the frustration- of-purpose
doctrine. The frustration-of-purpose doctrine requires the party asserting frustration of
purpose to establish that the principal purpose in making a contract is frustrated “without
that party’s fault.” E.g., Nat’l Recruiters, Inc. v. Toro Co., 343 N.W.2d 704, 707 (Minn.
App. 1984) (listing the three elements of the frustration- of-purpose doctrine) . In other
words, a party’s own conduct cannot contribute to the frustration of purpose that it alleges.
Also, to prevail under the frustration-of-purpose doctrine, “ the frustration must be
substantial,” and “[i]t is not enough that the transaction has become less profitable for the
affected party.” City of Savage v. Formanek , 459 N.W.2d 173, 176 (Minn. App. 1990) ,
rev. denied (Minn. Oct. 25, 1990). In this case, Fitness does not dispute that the emergency
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orders did not prohibit all of the stated purposes in the lease. Nor does Fitness dispute that
it was permitted to use the premises for any alternate legal use under section 8.2. Given
these undisputed facts, Fitness cannot establish the elements of the frustration -of-purpose
doctrine.
III. Interest Owed on Renovation Contribution
Fitness next argues that the district court erred in determining that City Center di d
not owe interest on its late renovation contribution payment to Fitness. Specifically,
Fitness contends that the interest provisions in section 19.7 of the lease apply to payments
made under the amendment regarding renovation. City Center disagrees and ar gues that
the amendment includes an integration clause, rendering the interest provision of the lease
inapplicable to payments made pursuant to the amendment. We agree with City Center
that the amendment was a fully integrated contract , separate from the lease.5
When “parties have reduced their agreement to an unambiguous integrated writing,”
courts cannot interpret that written agreement by relying on extrinsic evidence, including
“extrinsic evidence of prior or contemporaneous oral agreements, or prior written
agreements.” Danielson v. Danielson, 721 N.W.2d 335, 338 (Minn. App. 2006) (quoting
Alpha Real Estate Co. of Rochester v. Delta Dental Plan of Minn., 664 N.W.2d 303, 312
(Minn. 2003) ). Even when a subsequent written contract makes passing reference to a
previous one, courts cannot consider the previous written agreement when interpreting the

5 Neither party argues that any term of either written agreement is ambiguous. Nor do the
parties dispute any fact issues. The only disagreement is whether the interest provisions of
section 19.7 of the lease apply to payments made pursuant to the amendment.
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terms of the subsequent agreement if the subsequent agreement contains an integration
clause. See Alpha Real Estate , 664 N.W.2d at 313 (concluding tha t a written agreement
was a separate, integrated contract where prior writing was only referenced in subsequent
writing to provide definition for term).
In this case , although the amendment does reference the lease when providing
definitions for certain te rms, the lease makes no reference to renovation contribution
payments, and the amendment makes no reference to interest charges for late payments .
The amendment expressly states that it is the entire agreement of the parties regarding
amended terms : “ This First Amendment constitutes the entire agreement and
understanding between the parties with respect to the subject of this First Amendment and
shall supersede all prior written and oral agreements concerning this subject matter.” This
language makes clear that the “subject matter” of the amendment is distinct from the lease.
Given this unambiguous integration provision, we cannot agree with Fitness that the
interest provisions of section 19.7 of the lease apply to renovation contribution payments
made pursuant to the amendment.
Affirmed.