Benchmark Investments, LLC, Respondent,

This opinion is nonprecedential except as provided by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
A25-0039

Benchmark Investments, LLC,
Respondent,

vs.

Jennifer Mark, et al.,
Appellants.

Filed August 25, 2025
Reversed and remanded
Larkin, Judge

Hennepin County District Court
File No. 27-CV-19-16898

Christopher W. Boline, Felhaber Larson, Minneapolis, Minnesota (for respondent)

Kay Nord Hunt, Michelle K. Kuhl, Lommen Abdo, P.A., Minneapolis, Minnesota (for
appellants)

Considered and decided by Bentley, Presiding Judge; Larkin, Judge; and Segal,
Judge.
NONPRECEDENTIAL OPINION
LARKIN, Judge
Appellant tenants challenge the district court’s grant of summary judgment to
respondent landlord in a dispute regarding a residential lease. Appellants argue that there

 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
2
are genuine issue s of material fact regarding which party breached the lease first.
Respondent cross -appeals, arguing that the district court erred by not awarding all of
respondent’s requested attorney fees and costs. We reverse the summary judgment, as well
as the award of attorney fees, and we remand for further proceedings.
FACTS
This appeal arises from a residential lease between appellants Jennifer Mark and
Quy Ton (tenants) and respondent Benchmark Investments, LLC. John Anthony Newkirk
is the sole member of Benchmark.
Benchmark listed its real property ( the premises) for rent through Renters
Warehouse, a property management company. On February 5, 2018, Ton toured the
premises with a Renters Ware house employee. Ton claims that during the tour, the
employee told him that Benchmark’s personal property would be r emoved from the
premises. In March 2018, tenants submitted rental applications to Renters Warehouse.
On April 14 or 15, 2018, tenants entered into a residential lease with Benchmark.
The lease includes several defined terms, includin g “Landlord” (Anthony Newkirk —
President of Benchmark Investments , LLC), “Commencement Date” (July 1, 2018),
“Term” (ten months starting on the Commencement Date), and “Premises” (“[t]hat certain
real property located at the following street address”). The lease refers to Renters
Warehouse as “Landlord’s agent .” The lease pr ovides that, “[i]n the event Tenant and
Landlord agree to an earlier move-in date as contemplated under this Lease, Tenant agrees
to pay and Landlord agrees to accept pro-rated Rent,” and the lease provided for pro-rated
rent from June 15 to June 30, 2018. Finally, the lease provides that “[t]he court shall award
3
reasonable attorneys’ fees and costs to any party who prevails in a proceeding to enforce
one or more terms of this Lease.”
Starting in June 2018, Newkirk made several requests to postpone the date on which
tenants would take possession of the pr emises. On June 5, 2018, Newkirk requested to
stay at the premises until the beginning of July. On June 12, Newkirk emailed tenants to
summarize the parties’ agreement stating, “I’ll stay in the house through June 30th, 2018,”
“[w]e’ll extend the turn-over of keys, etc. and the inspection until that time—at which point
you will take possession of the property,” “[a]ll the other terms of the lease remain in effect,
this is just a simple modification/change in the start date to July 1, 2018,” and “[w]e agree
to document this change by email.” Tenants responded, “We are in agreement with the
terms as stated, which postpones hand -over of keys from the original June 15 date. The
new start date will be July 1 as requested by [Newkirk]. We are glad to fi nd a mutually
agreeable solution.”
On June 27, Newkirk again asked for an extension of the possession date for “maybe
2 or 3 days, and no longer than a week.” On June 29, Newkirk left tenants a voicemail,
stating that he believed he would leave on Sunday of the following week and that the
exchange of keys would be moved “from this coming July 1” to “the 8th of July.” On July
1, tenants emailed Newkirk requesting that he “reply with a confirmation of our agreement
for your extended stay through 7/8 as per your request by phone on 6/29.” Ne wkirk
responded that his leave date depended on a family member’s surgery.
On July 3, tenants emailed a Renters Warehouse employee:
4
We also heard from you that the owner may want to
extend his stay again beyond July 8 by another couple/few days
and that he would know if this is needed by the end of today.
As we discussed, we are willing to extend the owner’s
stay/delay start date agai n if the owner can specify his new
move-out day by the end of today. Of course, the above dates
would thus be amended and additional pro -rated rent would
also be due by the key hand -over date. This will allow us
sufficient time to make arrangements for a new inspection and
key hand-over date.

The record does not show any additional communications between tenants and Renters
Warehouse or between tenants and Benchmark until July 11, when a Renters Warehouse
employee emailed Ton, stating that “things are still on course for the move in date on July
16th.”
While negotiating a new possession date, tenants expressed concern that
Benchmark’s personal property remained on the premises. In a July 3 email to a Renters
Warehouse employee, tenants stated that they had previously received assurance from
another Renters Warehouse employee that Benchmark’s personal property would be
removed from the attic, closets, garage, and other areas on the premises before tenants took
possession. Tenants sought confirmation because they had not received replies to their
inquiries regarding removal of Benchmark’s personal property. Newkirk informed tenants,
through Renters Warehouse, that he had “always” used certain areas for storage, that there
would still be “plenty of space” for tenants, and that the lease’s “as is” clause included “the
already existing Owners Storage spaces, of course.” Ton claims that, in a July 12 call with
Renters Warehouse, an employee confirmed that Newkirk’s interpretation of the “as is”
clause was incorrect.
5
After tenants postponed the key hand -off due to disagreements regarding lease
amendments, Ton’s brother and sister-in-law completed a walkthrough of the premises on
July 28, 2018, with Ton watchin g on FaceTime. They did not accept the keys because
Benchmark’s personal property remained on the premises. Tenants never took possession
of the premises.
In August 2018, Benchmark sent tenants a proposed lease modification stating that
landlord storage is a “common practice” and “shouldn’t be a surprise,” but that Benchmark
would provide three hours of “Mike’s Handyman Labor to support” tenants’ requests
regarding the personal property on the premises.
Tenants sued Benchmark in conciliation court to recover their advanced rent
payments, security deposit, and attorney fees, claiming that Benchmark breached the lease.
Benchmark removed the action to district court, claimed that tenants breached the lease,
and moved for summary judgment and attorney fees.
The district court granted summary judgment for Benchmark, reasoning that tenants
breached the lease by failing to occupy the p remises, by not paying rent and utilities , and
by not doing certain maintenance as agreed under the lease. The district court concluded
that Benchmark did not breach the lease. The district court awarded Benchmark judgment
in the amount of $21,772.94. The district court also awarded Benchmark attorney fees of
$45,000 as the prevailing party under the lease , instead of the nearly $75,000 that
Benchmark had requested. The district court denied Benchmark’s request for $8,300.50 in
paralegal fees.
Tenants appeal, and Benchmark cross-appeals.
6
DECISION
The district court must grant summary judgment if the moving party shows “there
is no genuine issue as to any material fact” and the moving party is “entitled to judgment
as a matter of law.” Minn. R. Civ. P. 56.01. We review a district court’s grant of summary
judgment de novo. Dukowitz v. Hannon Sec. Servs. , 841 N.W.2d 147, 150 (Minn. 2014).
In doing so, we “view the evidence in the light most favorable to the party against whom
summary judgment was granted to determine whether there are any genuine i ssues of
material fact and whether the district court correctly applied the law.” Id. Summary
judgment is inappropriate if reasonable people can draw different conclusions from the
evidence presented. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn. 1997).
The party moving for summary judgment must support his assertion that there is no
genuine issue regarding any material fact by “citing to particular parts of materials in the
record” or by “showing that the materials cited do not establish the absence or presence of
a genuine issue for trial.” Minn. R. Civ. P. 56.03(a). In response, the nonmoving party
“must do more than rest on averments or denials of the adverse party’s pleading.” Stringer
v. Minn. Vikings Football Club, LLC, 705 N.W.2d 746, 754 (Minn. 2005). The nonmoving
party must identify specific facts that establish the existence of a triable issue of fact.
Papenhausen v. Schoen, 268 N.W.2d 565, 571 (Minn. 1978).
Tenants contend that summary judgment was inappropriate because there are
“genuine issues of material fact regarding who breached [the lease] first.”
“[A] lease is a form of contract.” Minneapolis Pub. Hous. Auth. v. Lor, 591 N.W.2d
700, 704 (Minn. 1999). A material uncured breach of a contract by one party excuses
7
performance by the other party. See Schwickert, Inc. v. Winnebago Seniors, Ltd. , 680
N.W.2d 79, 84 (Minn. 2004) (stating that the “remaining duties of one party to a contract
are conditioned on there being no previous uncured material failure by the other party”
(quotation omitted)); Soderbeck v. Ctr. for Diagnostic Imaging, Inc., 793 N.W.2d 437, 441
(Minn. App. 2010) (“[I]t is elementary that a breach of a contract by one party excuses
performance by the other.” (quotation omitted)). “[A] material breach is a breach that goes
to the essence of the parties’ agreement, affecting the purpose of the contract in a vital
way.” Kuhn v. Dunn, 8 N.W.3d 633, 640-41 (Minn. 2024) (quotations omitted). “Whether
an act or omission constitutes a material breach of a contract is a fact question.” Sitek v.
Striker, 764 N.W.2d 585, 593 (Minn. App. 2009), rev. denied (Minn. July 22, 2009).
Possession Date
Tenants argue that they presented evidence that Benchmark breached the lease by
failing to deliver possession of the premises on June 15, 2018 , as agreed in the lease .
Benchmark does not dispute that tenants did not receive possession of the premises on June
15, 2018. Instead, Benchmark argues that the parties modified the possession date in the
lease. Tenants counter that whether the parties modified the lease should be determined
by a jury.
“A written contract may be modified subsequent to its execution by the acts and
conduct of the parties in the same manner as a contract may be entered into in the first
place.” Wormsbecker v. Donovan Constr. Co. , 76 N.W.2d 643, 645 (Minn. 1956). If a
contract is modified by the parties’ consent, “it consists thereafter of the new terms and of
all of the old ones which were not changed, and a subordinate and separable part of a
8
contract may always be modified by the parties without a cancellation or avoidance of the
whole contract.” Knight v. McGinity, 868 N.W.2d 298, 301 (Minn. App. 2015) (emphasis
omitted) (quotation omitted). “While a written contract may be modified by the parties’
subsequent conduct, whether such a modification occurred is a question for the factfinder.”
Poser v. Abel, 510 N.W.2d 224, 228 (Minn. App. 1994), rev. denied (Minn. Feb. 24, 1994).
The parties’ lease states that it “shall not be modified, changed, altered or amended
in any way except through the use of a written amendment signed by all of the Parties
hereto.” However, under common law, “even where the contract specifically states that no
non-written modification will be recognized, the parties may yet alter their agreement by
parol negotiation.” 2 Joseph M. Perillo & Helen Hadjiyannakis Bender, Corbin on
Contracts § 7.14, at 404 (rev. ed. 1995) (quotation omitted). The parol evidence rule “has
no application whatever to subsequent agreements modifying or rescinding the original
contract.” 4 Caroline N. Brown, Corbin on Contracts § 13.1, at 110 (rev. ed. 1997).
Minnesota precedent is in accord with those secondary authorities. The Minnesota
Supreme Court has stated that “the parol evidence rule is not violated by testimony of
subsequent discussions in transactions relating to alterations of the original contract.”
Duffy v. Park Terrace Supper Club, Inc., 206 N.W.2d 24, 27 (Minn. 1973). And this court
has stated that “[p]arol evidence is admissible to show a subsequent modification of an
original contract. ” Mollico v. Mollico , 628 N.W.2d 637, 642 (Minn. App. 20 01). We
therefore consider parol evidence when determining whether there is a genuine issue of
fact regarding the alleged lease modification.
9
The lease indicates that the parties originally agreed to a June 15, 2018 possession
date. When Newkirk requested to stay at the premises until July 1, tenants explicitly stated
that they were in “agreement” with the arrangement. Tenants later requested that Newkirk
“reply with a confirmation of our agreement for your extended stay through 7/8 as per your
request by phone on 6/29.” And tenants expressed to Renters Warehouse that they had
agreed to a July 9 move-in with Newkirk: “As discussed, it is our understanding that the
owner plans to move out on 7/8 and the house to be ready for us to take possession on
7/9/18. Per agreement with the owner, we will be reimbursed rent for the time period June
15-30 and July 1-8 . . . .”
On July 3, tenants emailed a Renters Warehouse employee:
We also heard from you that the owner may want to
extend his stay again beyond July 8 by another couple/few days
and that he would know if this is needed by the end of today.
As we discussed, we are willing to extend the owner’s
stay/delay the start date again if the owner can specify his new
move-out day by the end of today.

According to the record, the next communication regarding the possession date was
on July 11, when a Renters Warehouse employee emailed Ton that “things are still on
course for the move in date on July 16 th.” There is no indication that tenants took
possession on July 16. Instead, on July 28, Ton’s brother and sister -in-law completed a
walkthrough of the premises, with Ton watching on FaceTime.
In granting summary judgment, the district court reasoned:
Clearly there was some communication between the
parties between July 3 and July 11 that the move -in date had
again been delayed, however the Court is not clear how that
communication happened. Again, because of the wording of
10
the email and no evidence to the contrary, the delayed date
must have been agreed to by the [tenants].

Tenants argue that the district court erroneously engaged in fact -finding.
Specifically, tenants argue that the district court impermissibly found that they agreed to
delay the July 9 possession date and that its award of summary judgment should be reversed
on that ground. At oral argument to this court, Benchmark countered that the district court
took a “common -sense view” and that tenants’ conduct—such as setting up utilities and
lawn care starting on July 16 —supported the district court’s statement that tenants “must
have” agreed to the July 16 date.
“Common sense” is not the correct legal standard. “The district court’s function on
a motion for summary judgment is not to decide issues of fact, but solely to determine
whether genuine factual issues exist.” DLH, Inc., 566 N.W.2d at 70. “[T]he [district] court
must not weigh the evidence on a motion for summary judgment. Id. And on appeal, we
“view the evidence in the light most favorable to the party against whom summary
judgment was granted.” Dukowitz, 841 N.W.2d at 150. However, our de novo application
of those standards to the record does not reveal a genuine issue of material fact for trial.
The record shows that tenants expressly agreed to extend the possession date several
times and ultimately participated in a final walkthrough on July 28. Even if tenants did not
expressly agree to an extension at some point between July 3 and July 11, given their
conduct after July 11, there is no genuine issue of material fact regarding whether they
agreed to further delay possession. In sum, w e need not determine whether the district
court engaged in impermissible fact -finding regarding any express agreement by tenants
11
occurring between July 3 and July 11 because that dispute is immaterial given tenants’
contract-modifying conduct after July 11.
In short, tenants have not shown a genuine issue of material fact regarding whether
Benchmark breached the lease by not delivering timely possession of the premises.
However, for the reasons discussed next, Benchmark was not entitled to judgment as a
matter of law. See Minn. R. Civ. P. 56.01 (stating that summary judgment must be granted
if the moving party shows “there is no genuine issue as to any material fact” and the moving
party is “entitled to judgment as a matter of law”).
Delivery of Entire Premises
Tenants also argue that because Benchmark did not remove its personal property
from the premises, it did not deliver possession of the entire premises at any time and that,
therefore, Benchmark breached the lease. The district court rejected that argument ,
reasoning:
[Tenants] also argue that [Benchmark] breached the
Lease for not clearing all of [Benchmark’s] personal property
out of the Property, which encroached on their ability to fully
use the Property and posed a safety risk. However, the Lease
clearly states that at the time the Lease was executed, [tenants]
agreed to, among other things, these two thin gs: 1) [tenants]
had visually examined the Property and it was in good order,
repair and safe, clean and habitable; and 2) [tenants] agree to
take the Property “as-is.” [Tenants] argue that their
conversations with Renters Warehouse led them to believe
things would be different. But the fact remains that [tenants]
executed the Lease, which included that language. The parties
have not argued, nor has the Court found that the language of
the Lease is ambiguous. Therefore, other conversations, not
memorialized in the written Lease, are not binding on
[Benchmark]. “Where the language is unambiguous, [] courts
must give the language its ordinary meaning and not redraft the
12
contract.” Simon v. Milwaukee Automobile Mutual Insurance
Co., 262 Minn. 378, 385, 115 N.W.2d 40, 45 (1962).

(Record citation omitted.)

Tenants assert that the district court erred in concluding that, because tenants agreed
to accept the premises “as is,” Benchmark’s storage of personal property on the premises
did not constitute a breach.
The district court’s ruling and the parties’ arguments focus on the following “as is”
clause in the lease, which provides:
CONDITION OF PREMISES. Tenant stipulates,
represents, and warrants that Tenant has visually examined the
Premises, and that it is, at the time of this Lease, in good order,
repair, and in a safe, clean, and habitable condition.
Furthermore, by signing this Lease, Tenant acknowledges and
agrees that it has taken the Premises “As -Is” unless otherwise
noted in this Lease. Tenant also agrees to the following:
-All drains, waste pipes, and plumbing are accepted as
clear by Tenant at the time of occupancy, and any material
blocking them after occupancy shall be repaired at Landlord’s
cost, unless determined by repair person that such blockage
occurred during the t ime Tenant controlled the Premises and
due to some fault or negligence of Tenant, specifically
excluding blockages caused by roots or backups from the
street.

The parties raise an issue of contract interpretation. “If no ambiguity exists,
interpretation of the contract and its legal effect are questions of law for the court, but
where the language is ambiguous, resort may be had to extrinsic evidence, and construction
then becomes a question of fact for the jury unl ess such evidence is conclusive.”
Blackburn, Nickels & Smith, Inc. v. Erickson , 366 N.W.2d 640, 64 3 (Minn. App. 1985)
13
(citation omitted), rev. denied (Minn. June 24, 1985). “A contract is ambiguous if it is
reasonably susceptible to more than one construction.” Id. at 644.
Tenants and Benchmark each assert that the “as is” clause is unambiguous; however,
they read the clause differently.1 Tenants argue that the clause “unambiguously does not
apply” to the storage of personal items on the premises. Benchmark argues that the clause
unambiguously applies to the personal property that Ton observed when he toured the
premises on February 5, 2018.
On appeal, a reviewing court may determine whether a contract is ambiguous
“without deference to the [district] court’s determination.” Id. at 643; see Lindberg v.
Fasching, 667 N.W.2d 481, 487 (Minn. App. 2003) (“The initial determination as to
whether a contract is ambiguous is a question of law.”), rev. denied (Minn. Nov. 18, 2003).
Thus, although tenants and Benchmark assert that the “as is” clause is unambiguous and
the district court did not conclude otherwise, we determine whether the clause is ambiguous
de novo.
In assessing whether the parties’ competing interpretations are reasonable, we first
consider whether there is any relevant authority. Benchmark has not cited precedential
authority indicating that an “as is” clause applies to personal property stored on real

1 Benchmark asserts that any “contract ambiguity argument” is not properly before us
because tenants did not raise it in district court. B ut because the district court considered
and decided that the lease was unambiguous and that extrinsic evidence regarding tenants’
communications with Renters Warehouse therefore could not be considered, this issue is
properly before us. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (“A reviewing
court must generally consider only those issues that the record shows were presented and
considered by the [district] court in deciding the matter before it.” (quotation omitted)).
14
property. Nor has Benchmark cited precedential authority interpreting an “as is” clause in
the context of a residential lease.
A secondary authority states that t he purpose of an “as is” clause is to protect a
seller “against liability for physical defects in the conveyed premises.” Frank J. Wozniak,
Annotation, Construction and Effect of Provision in Contract for Sale of Realty by Which
Purchaser Agrees to Take Property “As Is” or in Its Existing Condition , 8 A.L.R. 5th
§ 2[a], at 327 (1992). And this court’s nonprecedential caselaw addressing “as is” clauses
regards physical and mechanical defects. See, e.g., Beckman v. Wells Fargo Bank, N.A.,
No. A15 -1819, 2016 WL 5640664, at * 3, 9 (Minn. App. Oct. 3, 2016) ( considering
application of “as is” clause to allegations of fire, water, and mold damage, and
contaminated flooring); Oliva v. Lantz , No. A05 -2502, 2006 WL 2256949, at *2 (Minn.
App. Aug. 8, 2006) ( addressing whether “as is” clause applies to sewer and water
connections to a home ). Other jurisdictions have similarly applied “as is” clauses to
physical and mechanical defects. See, e.g., Chapman ex rel. Chapman v. Mut. Serv. Cas.
Ins. Co., 35 F. Supp. 2d 699, 703 -04, 707 (E.D. Wis. 1999) ( regarding lead-based paint);
La Placita Partners v. Nw. Mut. Life Ins. Co. , 766 F. Supp. 1454, 1458 -59 (N.D. Ohio
1990) (regarding asbestos); Ray v. Montgomery , 399 So.2d 230, 232 -33 (Ala. 1980)
(regarding termite damage); Murray v. Bostwick , 276 So. 3d 1120, 1123, 1126 (La. Ct.
App. 2019) (regarding plumbing issues).
We are not aware of any precedential authority indicating that the “as is” clause in
the parties’ lease applies to personal property on the premises, as opposed to physical and
mechanical defects. More fundamentally, the “as is” clause does not mention personal
15
property; instead , it mentions physical components such as “drains, waste pipes, and
plumbing.” Thus, tenants’ interpretation of the clause —that it does not apply to personal
property—is reasonable. However, the district court and Benchmark’s interpretation is
also reasonable: the presence of personal property in a residential rental property could
impact whether the premises are “in a safe, clean, and habitable condition,” as that phrase
is used in the “as is” clause here. We therefore conclude that the “as is” clause is
ambiguous. Thus, “resort may be had to extrinsic evidence, and construction then becomes
a question of fact for the jury unless such evidence is conclusive.” Blackburn, 366 N.W.2d
at 643.
“The cardinal purpose of construing a contract is to ascertain the intention of the
parties from the language used by them and by a construction of the entire instrument.”
Emps. Liab. Assurance Corp. v. Morse, 111 N.W.2d 620, 624 (Minn. 1961). As to whether
the evidence is conclusive regarding the parties’ intent , tenants presente d evidence that
during the February 2018 tour of the premises, Ton asked the Renters Warehouse employee
if Benchmark’s personal property would be removed from the premises, and the employee
told him that it would be removed. Additionally, tenants presented evidence that Ton
requested that the lease include a clause stating that Benchmark would remove its personal
property from the premises and was told by a Renters Warehouse employee that a clause
was unnecessary because the “items would be removed and only a small amount of items
related to maintenance of the home would be allowed to remain unless items were specified
in the lease.” Tenants also provided evidence that a March 22, 2018 email from a Renters
Warehouse employee , as well as an April 10, 2018 phone call with the employee ,
16
confirmed that the personal property would be removed . Finally, tenants provided
evidence that on June 27, 2018, Ton emailed Newkirk that, in a prior discussion with a
Renters Warehouse employee, the employee had “confirmed that as part of the house being
ready to be handed over, any remaining items in the garage, attic or closets would be
removed so we would be able to access these areas. Please let us know if this is incorrect.”
In sum, the record contains evidence that Renters Warehouse —as Benchmark’s
“agent” under the lease —repeatedly assured tenants that personal property would be
removed from the premises. Thus, tenants presented sufficient evidence to raise genuine
issues of material fact regarding three questions: (1) whether the parties intended the “as
is” clause to apply to personal property on the premises, (2) if not, whether Benchmark’s
failure to remove the personal property constituted a material breach, and (3) if so, whether
Benchmark cured that breach . See Schwickert, Inc. , 680 N.W.2d at 84 (stating that the
“remaining duties of one party to a contract are conditioned on there being no previous
uncured material failure by the other party” (quotation omitted)).
In short, tenants have shown a genuine issue of material fact regarding whether
Benchmark breached the lease by not delivering possession of the entire premises. We
therefore reverse summary judgment.
Attorney Fees Award
Again, the parties’ lease provides that “[t]he court shall award reasonable attorneys’
fees and costs to any party who prevails in a proceeding to enforce on e or more terms of
this Lease.” The district court ruled that “ [Benchmark] has been successful in its claims
against [tenants], thereby making [Benchmark] the prevailing party.” Because the district
17
court’s award of attorney fees was based on its conclusions that “[tenants] breached the
Lease and [Benchmark] did not,” and we have concluded that there is a genuine issue of
material fact regarding whether Benchmark breached the lease by not delivering possession
of the entire premises , we reverse the award of attorney fees pending resolution of this
matter on remand.
Conclusion
Although tenants have not shown a genuine issue of material fact regarding whether
Benchmark breached the lease by not delivering timely possession of the premises, there
are genuine issues of material fact regarding whether Benchmark breached the lease by
failing to deliver possession of the entire premises . We therefore r everse summary
judgment, as well as the award of attorney fees for Benchmark, and remand for further
proceedings not inconsistent with this opinion.2
Reversed and remanded.

2 Because the district court did not consider and determine tenants’ argument that the lease
terminated by its own terms when Benchmark failed to deliver possession of the property
under the terms set forth in paragraph 13 of the lease, that argument is not properly before
us, and we do not consider it. See Thiele, 425 N.W.2d at 582.