This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2012).

STATE OF MINNESOTA

IN COURT OF APPEALS

A14-0807

Gary A. Meiners, et al., 

Respondents, 

vs. 

Kruckow Companies, LLC, defendant and third party plaintiff, 

Appellant, 

vs. Anthony R. Hammell, et al., third party defendants, 

Respondents.

Filed January 5, 2015

Affirmed

Smith, Judge

Houston County District Court

File No. 28-CV-12-739

Robert G. Benner, Dunlap & Seeger, PA, Rochester, Minnesota (for respondents 

Meiners, et al.)

Paula Duggan Vraa, Patrick H. O’Neill, Jr., Jennifer L. Young, Larson King, LLP, St. 

Paul, Minnesota (for appellant)

James R. Forsythe, Streater & Murphy, P.A., Winona, Minnesota (for respondents 

Hammell, et al.)

Considered and decided by Ross, Presiding Judge; Smith, Judge; and Harten, 

Judge.

*

 

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to 

Minn. Const. art. VI, § 10.
2

U N P U B L I S H E D O P I N I O N

SMITH, Judge

We affirm the district court’s grant of summary judgment in favor of respondents 

on both their claim for a declaratory judgment and appellant’s reformation counterclaim 

because the lease is unambiguous and respondents are entitled to judgment as a matter of 

law. We also affirm the district court’s award of attorney fees and costs because we 

affirm the grant of summary judgment to respondents.

FACTS

At some point before February 2008, respondent Gary Meiners asked Gary 

Kruckow, the chief manager of appellant Kruckow Companies, whether the company 

would be interested in purchasing his parents’ homestead, which his parents had lost 

through foreclosure so that his parents could continue to live on the property. Kruckow 

Companies purchased the homestead and sold the property to Gary Meiners and his wife

on a contract for deed. In exchange, the Meinerses granted Kruckow Companies a right 

to quarry and an option to purchase certain other land. 

On the same day as the contract for deed was signed, the Meinerses and Kruckow 

Companies signed a first-right-of-refusal contract, giving Kruckow Companies the first 

right to refuse to purchase other property from the Meinerses. The property was 

described as “[t]he NW1/4 of the SW1/4 lying East of the public highway in Section 5, 
3

Township 101 North of Range 5 West of the Fifth Principal Meridian, excepting 

Highway Right of Way” (Parcel 2).1

On January 22, 2009, the Meinerses and Kruckow Companies signed a quarrylease-with-option-to-purchase contract. The Meinerses leased to Kruckow Companies 

“[t]he quarry located in the NW1/4 of the SW1/4 lying East of the public highway in 

Section 5, Township 101 North of Range 5 West of the Fifth Principal Meridian, 

excepting Highway Right of Way. The quarry is the existing hole and all future 

reserves.” Under the lease agreement, Kruckow Companies was required to pay the 

Meinerses $200.00 per year in rent and $0.25 “per cubic yard of rock removed.” The 

option to purchase the quarry also contained the same legal description of the quarry and 

the language regarding “future reserves.”

On December 1, 2011, the Meinerses conveyed Parcel 1, the disputed property, to 

respondents Anthony and Luan Hammell in a quit claim deed:

The Southeast Quarter of the Northeast Quarter and the 

Northeast Quarter of the Southeast Quarter of Section 5, 

Township 101 North, of Range 5 West of the Fifth Principal 

Meridian.

The East Half of the Northwest Quarter in Section 8, 

all that part of the Southwest Quarter of the Northwest 

Quarter of Section 8 lying East of the public highway; the 

Northwest Quarter of the Northeast Quarter of Section 8; the 

Southwest Quarter of the Southeast Quarter of Section 5 and 

the Southeast Quarter of the Southwest Quarter of Section 5, 

all in Township 101 North of Range 5 West.

 

1

The tracts of land were identified as Parcel 2 and Parcel 1 in the district court’s order. It 

is for that reason that we use these descriptions.
4

The Southwest Quarter of the Southeast Quarter of 

Section 19, Township 102 North, Range 5 West.

The Northwest Quarter of the Southeast Quarter of 

Section 19, Township 102 North, Range 5 West.

Shortly after this conveyance, Kruckow Companies’ attorney wrote to the Meinerses and 

Hammells, expressing Kruckow Companies’ intent to exercise its option to purchase the 

quarry land. Kruckow Companies believed that some of the land involved in the quarry 

lease may have been conveyed to the Hammells.

All three of the contracts signed by the Meinerses and Kruckow Companies were 

drafted by attorney Michael Murphy. According to Gary Kruckow, he told Murphy “that 

the [quarry lease] agreement needed to include the right to quarry and option to purchase 

land containing future reserves, including the [d]isputed [l]and.” Murphy indicated that 

the language, “[t]he quarry is the existing hole and all future reserves,” accomplished 

this. Gary Kruckow alleges that both he and Gary Meiners intended for the quarry lease 

and option to include Parcel 1. In contrast, Gary Meiners alleges that he never discussed 

future reserves with Gary Kruckow.

Murphy stated in his deposition that he represented both the Meinerses and 

Kruckow Companies because “they came in and they . . . seemed to be on the same page 

as to what they wanted to do.” According to Murphy, the parties discussed the location 

of the quarry but did not discuss limiting or expanding the quarry lease to other property. 

Murphy acknowledged that he had never visited the quarry and did not know where the 

quarry was located. As a result, he “would have no way of knowing” the location of the 

future reserves. Murphy explained that he understood “future reserves” to mean “what 
5

could be quarried.” The parties did not ask Murphy to add the future-reserves language 

to the contract. Instead, he added the language because he did not know the exact 

location of the quarry and because his attorney-father had used this language in other 

quarry leases. Murphy explained that he would have discussed the language with the 

parties when they went through the contract before signing it.

On August 13, 2012, the Meinerses sued Kruckow Companies, requesting a 

declaratory judgment regarding the meaning of “future reserves” in the quarry lease and 

option to purchase. The Meinerses argued that, according to the legal description, the 

quarry lease and option to purchase only involved Parcel 2. The Meinerses also alleged 

that Kruckow Companies had breached the quarry lease by failing to pay rent and fees for 

the removed rock, and requested an accounting of the balance the Meinerses owed under 

the contract for deed and the rock removed from the quarry.

In response, Kruckow Companies requested a declaratory judgment that the quarry 

lease included Parcel 1 and reformation of the quarry lease to include this land. Kruckow 

Companies brought counterclaims against the Meinerses for promissory estoppel, 

equitable estoppel, fraud and intentional misrepresentation, negligent misrepresentation, 

and unjust enrichment. Kruckow Companies also brought a third-party complaint against 

the Hammells, claiming that some of the land conveyed to them in the quit claim deed 

(Parcel 1) was included in the quarry lease and option to purchase. Kruckow Companies 

again requested a declaratory judgment and reformation of the quarry lease and alleged 

claims for promissory estoppel, equitable estoppel, and unjust enrichment.
6

The Meinerses moved for partial summary judgment on their claim for a 

declaratory judgment. The district court granted partial summary judgment to the 

Meinerses. The district court concluded that the language in the quarry lease and option 

to purchase and in the first right of refusal was unambiguous, stating:

Pursuant to the plain and ordinary meaning of the language in 

the legal description, the quarry is limited to the existing hole 

and all future reserves located in Parcel 2. The description 

does not expand the quarry beyond Parcel 2. It does not 

describe the quarry as the existing hole and all future reserves 

outside of Parcel 2. The first sentence in the legal description 

locates the quarry; the second sentence explains what 

components make up the quarry within that location.

The district court also concluded that the quarry lease and first right of refusal were 

integrated and that the parol-evidence rule prohibited the introduction of extrinsic 

evidence regarding the parties’ agreement. Finally, the district court concluded that 

Kruckow Companies’ reformation and other counterclaims did not preclude partial

summary judgment.

The Meinerses then moved for attorney fees and costs. The Meinerses argued that 

the grant of partial summary judgment resolved their request for a declaratory judgment 

and rendered their claims for breach of contract and an accounting moot. Kruckow 

Companies filed its own motion for attorney fees and costs, arguing that the Meinerses 

were not entitled to fees and costs because they “lost a majority of their claims and 

should not be considered the prevailing party in this litigation.”
7

The district court granted the Meinerses’ motion for attorney fees and denied 

Kruckow Companies’ motion. The district court found that the Meinerses were the 

prevailing party and awarded them $39,251.80 in attorney fees.

On March 19, 2014, the parties stipulated that the Meinerses would dismiss their 

breach-of-contract and accounting claims against Kruckow Companies

on the condition that [the Meinerses] agree not to assert such 

claims or to sue Kruckow [Companies] regarding such claims 

unless the [district c]ourt’s [o]rder for [p]artial [s]ummary 

[j]udgment or the judgment upon which it is based is reversed 

on appeal and this matter is remanded to [the district court] 

for further proceedings.

The parties also stipulated to the entry of the attorney-fees judgment against Kruckow 

Companies for $39,251.80 and stipulated that the partial-summary-judgment order should 

be amended to dismiss Kruckow Companies’ claims against the Hammells. The district 

court ordered dismissal of the Meinerses’ breach-of-contract and accounting claims and 

Kruckow Companies’ claims against the Hammells, and entered judgment against 

Kruckow Companies for $39,251.80. According to the parties’ agreement, the district 

court stayed enforcement of the attorney-fees judgment pending this appeal by Kruckow.

D E C I S I O N

I.

A district court shall grant summary judgment “if the pleadings, depositions, 

answers to interrogatories, and admissions on file, together with the affidavits, if any, 

show that there is no genuine issue as to any material fact and that either party is entitled 

to a judgment as a matter of law.” Minn. R. Civ. P. 56.03. “We review a district court’s 
8

summary judgment decision de novo.” Riverview Muir Doran, LLC v. JADT Dev. Grp., 

LLC, 790 N.W.2d 167, 170 (Minn. 2010). “On appeal from summary judgment, we must 

review the record to determine whether there is any genuine issue of material fact and 

whether the district court erred in its application of the law.” Dahlin v. Kroening, 796 

N.W.2d 503, 504 (Minn. 2011). “We view the evidence in the light most favorable to the 

party against whom summary judgment was granted.” STAR Ctrs., Inc. v. Faegre & 

Benson, L.L.P., 644 N.W.2d 72, 76-77 (Minn. 2002). But

there is no genuine issue of material fact for trial when the 

nonmoving party presents evidence which merely creates a 

metaphysical doubt as to a factual issue and which is not 

sufficiently probative with respect to an essential element of 

the nonmoving party’s case to permit reasonable persons to 

draw different conclusions.

DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).

Kruckow Companies first argues that the district court erred by finding that the 

quarry lease is unambiguous. “[A] lease is a form of a contract.” Metro. Airports 

Comm’n v. Noble, 763 N.W.2d 639, 645 (Minn. 2009). “A contract is ambiguous if its 

language is reasonably susceptible to more than one interpretation.” Id. (quotation 

omitted). “Unambiguous contract language must be given its plain and ordinary 

meaning.” Id. “Where the terms of a contract are clear and unambiguous, there is no 

room for construction or interpretation.” Colangelo v. Norwest Mortg., Inc., 598 N.W.2d 

14, 18 (Minn. App. 1999) (quotation omitted), review denied (Minn. Oct. 21, 1999). 

“The determination of whether a contract is ambiguous is a question of law, but the 
9

interpretation of an ambiguous contract is a question of fact for the jury.” Denelsbeck v. 

Wells Fargo & Co., 666 N.W.2d 339, 346 (Minn. 2003) (citation omitted).

The first right of refusal involved “[t]he NW1/4 of the SW1/4 lying East of the 

public highway in Section 5, Township 101 North of Range 5 West of the Fifth Principal 

Meridian, excepting Highway Right of Way.” The quarry lease and the option to 

purchase involved “[t]he quarry located in the NW1/4 of the SW1/4 lying East of the 

public highway in Section 5, Township 101 North of Range 5 West of the Fifth Principal 

Meridian, excepting Highway Right of Way. The quarry is the existing hole and all 

future reserves.” The legal descriptions of the property involved in these agreements are 

identical and concern only Parcel 2. The legal descriptions are not “reasonably 

susceptible to more than one interpretation.” See Noble, 763 N.W.2d at 645 (quotation 

omitted).

But Kruckow Companies argues that “future reserves” could reasonably be 

interpreted as referring either to reserves located in Parcel 2 or to “all future reserves in 

the adjacent parcels.” No Minnesota case defines “reserves” or “future reserves.” As a 

result, Kruckow Companies cites two foreign cases. In Vt. Marble Co. v. Town of W.

Rutland, the Vermont Supreme Court discussed the value of two quarries, their “proven 

and exposed reserve[s],” and their “probable reserves.” 360 A.2d 91, 92-93 (Vt. 1976). 

But Vt. Marble Co. does not define or discuss the location of the reserves, and is not 

relevant to this appeal. Similarly, in Knox Lime Co. v. Me. State Highway Comm’n, the 

Maine Supreme Judicial Court did not define reserves, but stated that the value of the 
10

mineral reserves involved in the case was “the value of the limestone.” 230 A.2d 814, 

825 (Me. 1967).

Kruckow Companies suggests that these cases define “reserves” as “all available 

rock that could be mined.” Even if the foreign cases support that definition, and we do 

not believe that they do, this definition does not require the reserves to include adjoining 

property. The quarry lease refers to a quarry located in Parcel 2. There is no indication 

that “future reserves” includes rock outside of Parcel 2, the only property described in the 

lease. As the district court explained, “[t]he first sentence in the legal description locates 

the quarry; the second sentence explains what components make up the quarry within that 

location.” “Future reserves” cannot reasonably refer to the disputed property outside of 

Parcel 2.

Kruckow Companies next argues that the district court erred by refusing to 

consider extrinsic evidence of the parties’ agreement to include Parcel 1 in the quarry 

lease and option to purchase. The parol-evidence rule precludes evidence of oral 

agreements made prior to or contemporaneous with the execution of an integrated and 

unambiguous written agreement. Norwest Bank Minn., N.A. v. Midwestern Mach. Co., 

481 N.W.2d 875, 881 (Minn. App. 1992), review denied (Minn. May 15, 1992). Because 

the contract is unambiguous, the district court properly refused to consider extrinsic 

evidence of the parties’ alleged oral agreement prior to their execution of the written 

agreement. See id.

Because the quarry-lease-and-option-to-purchase agreement is unambiguous and 

refers only to property in Parcel 2, the district court properly concluded that there was no 
11

genuine issue of material fact remaining for trial. See DLH, Inc., 566 N.W.2d at 71 

(“[T]here is no genuine issue of material fact for trial when the nonmoving party presents 

evidence which merely creates a metaphysical doubt as to a factual issue and which 

[does] not . . . permit reasonable persons to draw different conclusions.”). The Meinerses 

and the Hammells are entitled to judgment as a matter of law, and we therefore affirm the 

district court’s grant of partial summary judgment on the Meinerses’ declaratoryjudgment claim.

II.

Kruckow Companies argues that, if the quarry lease is unambiguous, “summary 

judgment should still be reversed on the reformation claim.” Kruckow Companies does 

not challenge the district court’s decision regarding its other counterclaims.

“Reformation is an equitable remedy that is available when a party seeks to alter 

or amend language in a contract so that the contract reflects the parties’ true intent when 

they entered into the contract.” SCI Minn. Funeral Servs., Inc. v. Washburn-McReavy 

Funeral Corp., 795 N.W.2d 855, 864 (Minn. 2011).

A written instruction can be reformed by a court if the 

following elements are proved: (1) there was a valid 

agreement between the parties expressing their real 

intentions; (2) the written instrument failed to express the real 

intentions of the parties; and (3) this failure was due to a 

mutual mistake of the parties, or a unilateral mistake 

accompanied by fraud or inequitable conduct by the other 

party.
12

Nichols v. Shelard Nat’l Bank, 294 N.W.2d 730, 734 (Minn. 1980). The elements of 

reformation “must be established by evidence which is clear and consistent, unequivocal 

and convincing.” Id.

The district court concluded that Kruckow Companies did not establish a genuine 

issue of material fact regarding any of the three elements required for reformation. As a 

result, the district court granted summary judgment sua sponte to the Meinerses on the 

reformation counterclaim, an action that was permissible. See Del Hayes & Sons, Inc. v. 

Mitchell, 304 Minn. 275, 280-81, 230 N.W.2d 588, 591-92 (1975). And Kruckow 

Companies does not challenge the district court’s authority to grant summary judgment 

on the reformation counterclaim.

Regarding the first and second elements, Kruckow Companies alleges that the 

parties agreed to include Parcels 1 and 2 in the quarry lease and option to purchase and 

that the written agreement failed to express the parties’ intention. In his affidavit, Gary 

Kruckow alleges that he and Gary Meiners agreed that the quarry lease and option to 

purchase would include Parcels 1 and 2. Gary Kruckow also alleges that he told Murphy 

of this agreement and that Murphy responded that the written agreement accomplished 

the parties’ intent to include the disputed land. Viewing the evidence in the light most 

favorable to Kruckow Companies, see STAR Ctrs., Inc., 644 N.W.2d at 76-77, Kruckow 

Companies appears to have raised genuine issues of material fact regarding the first two 

elements required for reformation of the agreement.

But Kruckow Companies has not raised a genuine issue of material fact regarding 

the third element required for reformation. The third element requires either a mutual 
13

mistake “or a unilateral mistake accompanied by fraud or inequitable conduct by the 

other party.” Nichols, 294 N.W.2d at 734. At oral argument before this court, Kruckow 

Companies explained that it was only alleging a mutual mistake, not a unilateral mistake 

caused by fraud or inequitable conduct on the part of the Meinerses. “[I]n order to have a 

mutual mistake, it is necessary that both parties agree as to the content of the document 

but that somehow through a scrivener’s error the document does not reflect that 

agreement.” Id. Here, there is no mutual mistake and no evidence of a scrivener’s error 

because the written agreement reflects the Meinerses’ understanding of the parties’ 

agreement. See id. According to his affidavit, only Gary Kruckow described the location 

of the reserves to Murphy. And only Kruckow Companies alleges that the parties 

intended a different agreement than that found in the written agreement. This case 

involves only a unilateral mistake on the part of Kruckow Companies, which is “not a 

ground for reformation.” See id.; see also SCI Minn. Funeral Servs., Inc., 795 N.W.2d at 

866-67 (stating that “any mistake was a unilateral mistake” and that the appellants did not 

challenge the district court’s conclusion that there was no evidence of fraud or 

inequitable conduct).

III.

“We review the district court’s award of attorney fees or costs for abuse of 

discretion.” Brickner v. One Land Dev. Co., 742 N.W.2d 706, 711 (Minn. App. 2007), 

review denied (Minn. Mar. 18, 2008). “Recovery of attorney fees must be based on 

either a statute or a contract.” Schwickert, Inc. v. Winnebago Seniors, Ltd., 680 N.W.2d 

79, 87 (Minn. 2004). The quarry lease provides for the recovery of attorney fees:
14

In the event that any action is filed in relation to this lease 

agreement, the unsuccessful party in the action shall pay to 

the successful party, in addition to all the sums that either 

party may be called upon to pay, a reasonable sum for the 

successful party’s attorney’s fees and costs.

Kruckow Companies argues that a reversal of the district court on the above issues 

requires a reversal of the attorney-fees award. It does not challenge the attorney-fees

award in the event that we affirm the district court’s order. Because we affirm the district 

court’s order, we also affirm the award of attorney fees to the Meinerses.2

Affirmed.

 

2

In their brief, the Meinerses request additional attorney fees incurred on appeal. 

Because the Meinerses did not submit a motion regarding their request for attorney fees 

on appeal, we decline to consider their request. See Minn. R. Civ. App. P. 139.06, subd. 

1 (“A party seeking attorneys’ fees on appeal shall submit such a request by motion under 

Rule 127.”).