Best Buy Stores, L.P. v. Benderson-Wainberg Associates, L.P. , 668 F.3d 1019 ( 2012 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 10-3625
___________
Best Buy Stores, L.P., *
*
Plaintiff - Appellee, *
*
v. *
*
Benderson-Wainberg Associates, L.P.; * Appeals from the United States
DDR Flatiron LLC; DDR Hendon * District Court for the
Nassau Park II, LP; DDR MDT Cool * District of Minnesota
Springs Point LLC; DDR MDT Great *
Northern, LLC; DDR MDT Lakepointe *
Crossing, LP; DDR MDT Riverdale *
Village Outer Ring, LLC; DDR MDT *
Shoppers World LLC; DDRA *
Ahwatukee Foothills, LLC; DDRC *
PDK Salisbury LLC; DDR MDT *
Fayetteville Spring Creek, LLC; DDR *
MDT Turner Hill Marketplace, LLC; *
JDN Realty Corporation; BG Boulevard *
III, LLC, a Delaware Limited Liability *
Corporation, *
*
Defendants - Appellants, *
*
Developers Diversified Realty *
Corporation; JDN Development *
Company, Inc.; John Doe, #1, *
*
Defendants. *
___________
No. 10-3627
___________
Best Buy Stores, L.P., *
*
Plaintiff - Appellant, *
*
v. *
*
Developers Diversified Realty *
Corporation; Benderson-Wainberg *
Associates, L.P.; DDR Flatiron LLC; *
DDR Hendon Nassau Park II, LP; *
DDR MDT Cool Springs Point LLC; *
DDR MDT Great Northern, LLC; *
DDR MDT Lakepointe Crossing, LP; *
DDR MDT Riverdale Village Outer *
Ring, LLC; DDR MDT Shoppers *
World LLC; DDRA Ahwatukee *
Foothills, LLC; DDRC PDK Salisbury *
LLC; DDR MDT Fayetteville Spring *
Creek, LLC; DDR MDT Turner Hill *
Marketplace, LLC; JDN Realty *
Corporation; BG Boulevard III, LLC, *
a Delaware Limited Liability *
Corporation, *
*
Defendants - Appellees, *
*
JDN Development Company, Inc.; *
John Doe, #1, *
*
Defendants. *
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___________
Submitted: October 18, 2011
Filed: February 21, 2012
___________
Before MURPHY, BYE, and SMITH, Circuit Judges.
___________
SMITH, Circuit Judge.
Best Buy Stores, L.P. ("Best Buy") sued various commercial landlords1
(collectively, "Landlords") and the Landlords' property manager, Developers
Diversified Realty Corporation (DDRC), alleging that DDRC impermissibly charged
Best Buy for insurance-related costs under various lease agreements. The Landlords
argued that the leases did permit these charges and asserted various equitable
defenses arguing that Best Buy had waived its objection to those charges. Best Buy
moved for summary judgment on its breach of contract, declaratory judgment, and
breach of fiduciary duty claims. The Landlords filed a cross motion for partial
summary judgment against Best Buy's breach of contract claim. The district court
granted Best Buy's motion for summary judgment on its breach of contract and
declaratory judgment claims. The district court also granted the Landlords' motion for
summary judgment on Best Buy's breach of fiduciary duty claim and some of Best
Buy's fraud claims. The district court then awarded damages to Best Buy, allowing
1
DDRA Ahwatukee Foothills, L.L.C. ("Ahwatukee"); DDR MDT Fayetteville
Spring Creek, L.L.C. ("Spring Creek"); DDR Flatiron, L.L.C. ("Flatiron"); JDN
Realty Corporation; DDR MDT Turner Hill Marketplace, L.L.C. ("Turner Hill");
DDR PDK Salisbury, L.L.C. ("Salisbury"); DDR MDT Shoppers World, L.L.C.
("Shoppers World"); DDR MDT Riverdale Village Outer Ring, L.L.C. ("Riverdale");
DDR Hendon Nassau Park II, L.P. ("Nassau Park"); Benderson-Wainberg Associates,
L.P. ("B-W"); BG Boulevard III, L.L.C. ("Boulevard"); DDR MDT Great Northern,
L.L.C. ("Great Northern"); DDR MDT Cool Springs Pointe, L.L.C. ("Cool Springs");
DDR MDT Lakepointe Crossing, L.P. ("Lakepointe") (collectively, the "Landlords").
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it to recoup the amount it paid for the insurance to the Landlords with pre-judgment
interest. Both parties appeal. For the reasons explained below, we affirm in part, and
reverse in part.
I. Background
Since 1998, Best Buy has leased commercial real estate space from DDRC, a
publicly traded real estate investment trust that owns and manages shopping centers.
Under various lease agreements, Best Buy rented 15 retail properties from the
Landlords.2
Although not uniform, the leases generally required the Landlords to obtain
property and liability insurance for the common areas of the shopping centers. In turn,
the leases required Best Buy to reimburse the Landlords for the cost of purchasing
this insurance. Attempting to comply with these provisions, DDRC purchased blanket
insurance policies with high deductibles, typically $100,000, from third-party
commercial insurance companies for all of the properties that it managed. DDRC then
assumed the risks of the high deductible. As compensation for assuming this risk,
DDRC charged the Landlords what it believed to be a reasonable premium. The
Landlords then passed this premium charge on to Best Buy. DDRC named this
arrangement the "First Dollar Program."
At the beginning of each lease year, DDRC sent Best Buy prospective budgets
for the estimated costs associated with leasing space in the various facilities. DDRC
then billed Best Buy in accordance with those budgets. After each billing year, DDRC
would send Best Buy reconciliation documents. In these documents, DDRC would
either request additional payments if the actual costs exceeded the budget or credit
Best Buy for overpayments if the costs were lower than the budget. While the
2
While DDRC wholly-owns many of the above landlords, it manages all of the
above properties pursuant to management agreements as a distinct legal entity.
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reconciliation documents noted the costs for insurance, including the First Dollar
Program, they did not explain how DDRC calculated this cost. As the district court
noted:
The reconciliation documents for the 1998 and 1999 lease years
noted that the insurance allocations "include premiums collected by
Mesirow Insurance Services and funding for large deductibles collected
by DDRC." That language was altered in the 2000 and 2001 lease years
to provide that the insurance allocations "include premiums and funding
for large deductibles. Premiums are collected by Mesirow Insurance
Services. Funding for large deductibles [is] collected by DDRC." In
2002 and 2003, DDRC included a separate line item identifying the
"deductible cost." In addition, the reconciliation documents noted that
"[i]nsurance company costs collected by Mesirow Insurance Services.
Self-Insured Deductible costs charged for and collected by DDRC." The
2004 reconciliation documents provided a "First Dollar Program Cost
Summary." This summary identified the charges for the first dollar
premiums and noted that DDRC's "program provides first dollar
coverage to Tenants for incurred General Liability and Property losses.
In the event of an insured loss, incurred losses are not charged back to
a Tenant but retained by [DDRC]."
Best Buy Stores, L.P. v. Developers Diversified Realty Corp., 636 F. Supp. 2d 869,
875–76 (D. Minn. 2009) (record citations omitted).
For the 2004 and 2005 lease years, DDRC created two captive insurance
companies, American Property Protection Company (APPC) and National Property
Protection Company (NPPC).3 These companies provided coverage under the First
Dollar Program. Thus, DDRC paid premiums to its captive insurance companies for
3
The captive insurance companies were formed as "pure captive" companies
under Vermont law, which defines such companies as "any company that insures risks
of its parent and affiliated companies or controlled and unaffiliated business." Vt.
Stat. Ann. tit. 8, § 6001(14).
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insuring the within-deductible risk and billed the Landlords for these premiums. The
Landlords, in turn, billed Best Buy its pro rata share of the premiums.4
As early as March 3, 1999, Best Buy received a 1998 memorandum from
DDRC explaining the First Dollar Program (the "1998 Memorandum"). The 1998
Memorandum stated:
In addition to the standard variables considered by the insurer to
establish the premium for the public liability and property damage
coverage, [DDRC] has been able to negotiate significant reductions of
the premium by agreeing to self fund the first $100,000 of public
liability claims, inclusive of attorney fees, court costs and related
expenses, and the first $25,000 of property loss, before the insurer
would be required to pay any excess loss. . . . Because of its obligation
to self fund the initial $100,000 of public liability claims and $25,000
of property damage claims, [DDRC] is given more control over the
administration and resolution of its claims which helps to maintain the
lower premium regardless of fluctuations in the marketplace. This
self-funded coverage, while similar to a deductible, is not, in fact, a
deductible. . . .
While [DDRC] has assumed 100% of the risk for self-funded and
uninsured losses, this risk is not passed on to the shopping center tenants
who are obligated to reimburse the landlord its pro[]rata share of
insurance. Instead, [DDRC] includes in its insurance billing to its
tenants a self-funded allocation which is intended to compensate
[DDRC] for assuming 100% of the risk for self-funded and uninsured
4
To avoid losing its special tax status as a real estate investment trust, DDRC
took certain measures to ensure that no actual risk transfer occurred between the
captive insurance companies and the properties that DDRC only partially owned.
First, DDRC limited the captive insurance companies' payment obligations to the
amount of premiums received. Second, DDRC placed an aggregate cap on the amount
of losses covered by the captive insurance companies. Third, DDRC guaranteed any
claims that the captive insurance companies could not pay.
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loss. However, the aggregate cost of the premium and the self-funded
allocation is less than the cost for first dollar coverage for each property
on a “stand alone" basis (i.e. insurance quoted on a single property basis
rather than a blanket policy basis for multiple properties) under a
standard commercial policy with no self-funded reimbursement
obligation by the insured. It should also be noted that while many
insurance companies may be willing to quote a price for first dollar or
higher deductible coverage, most insurance companies are unwilling to
actually issue a policy of this nature due to the higher risks involved in
insuring only a single property. Additionally, tenants should be made
aware that its pro[]rata share of the premium and self-funded allocation
is the only insurance obligation the tenant is required to pay during the
fiscal year. Most landlords who maintain standard commercial insurance
policies with deductibles will include with the annual common area
maintenance ("CAM") charge any dollars the landlord is required to pay
for legal expense and/or deductible payments in addition to the prorata
share of the higher premium. Therefore, the tenant pays its pro[]rata
share of the premium, plus any out-of-pocket expenses incurred by the
landlord to pay the deductible portion of coverage and legal expenses,
if applicable. This amount is not fixed and could significantly increase
the tenant's CAM charge.
Best Buy paid its rent and associated costs, including the premiums for the First
Dollar Program, from 1999 until it received a judgment from the district court in
2009.
Starting in 2000, to ensure timely rental payments and avoid default, Best Buy
began sending standard form objection letters with its rental payments to the
Landlords, noting that the property leases may be subject to a more thorough audit in
the future. The letter stated that "if Tenant is required to object to the reconciliation
in order to preserve the right to audit, please allow this notice to serve as said
objection, pursuant to the terms of the Lease." The letters also stated:
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It is understood and agreed that this payment shall not be deemed as an
approval of inappropriate charges that are inconsistent with the
provisions of the Lease, charges that may require specific approval, or
the manner and method which Best Buy's share of expenses has been
calculated. It is agreed that by accepting the payment enclosed, Best Buy
preserves any and all audit rights it may have, including all rights in our
Lease or Operating Agreement.
Best Buy noted that this post-payment audit system could take more than two years
to complete.
In 2000, Best Buy twice requested information related to the insurance charges,
including the First Dollar Program. It did not receive any of the requested
information, and on September 28, 2004, Best Buy wrote to DDRC, explaining that
it had repeatedly attempted, without success, to obtain backup information for the
insurance charges during the previous years. In the letter, Best Buy requested invoices
showing the premium amounts for the regular and umbrella policies, proof of the
actual claim costs incurred, data showing the calculation of developed and trended
losses, a detailed explanation of handling and administrative expenses, a list of all
policies of insurance and the properties covered, and a copy of the relevant portions
of each policy. DDRC did not produce this information until after this litigation
commenced.
In 2005, Best Buy sued the Landlords for breach of contract and fraud for the
allegedly impermissible charges imposed by the Landlords under the First Dollar
Program. Best Buy argued that the First Dollar Program did not constitute insurance
as contemplated by the leases. Best Buy moved for summary judgment on its breach
of contract claim, arguing that the Landlords could not properly charge Best Buy for
the First Dollar Program under the leases. The Landlords countered by arguing that
the term "insurance" is ambiguous and that a reasonable jury could find that the First
Dollar Program falls within the ordinary meaning of that term. The Landlords further
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argued that Best Buy waived its breach of contract claim because it continued to pay
for the First Dollar Program despite being put on notice in 1999 by the 1998
Memorandum.
The district court rejected the Landlords' arguments and granted Best Buy's
motion for summary judgment on its breach of contract claims for the 1999–2005
lease years. The district court also granted Best Buy additional relief for the
2006–2009 lease years. The district court then entered a judgment for the 1999–2005
lease years and awaited further briefing regarding damages for the 2006–2009 lease
years. The district court subsequently denied the Landlords' request for discovery on
the 2006–2009 lease years.
To expedite the case and to collect its judgment, Best Buy moved to dismiss
its remaining fraud claims on the condition that it could reassert them if the Landlords
were successful on appeal. Although Best Buy sought dismissal without prejudice,
the district court dismissed Best Buy's fraud claims with prejudice. The district court
then entered the judgment for the 2006–2009 lease years, and the Landlords now
appeal. Best Buy cross-appeals, arguing the district court applied the incorrect
pre-judgment interest rate to its damage awards and erroneously dismissed its fraud
claims with prejudice.
II. Discussion
"In a diversity action such as this, we apply state substantive law." Emp'rs.
Reinsurance Co. v. Mass. Mut. Life Ins. Co., 654 F.3d 782, 789 (8th Cir. 2011)
(quotation and citation omitted). "We review de novo a district court's grant of
summary judgment, as well as its interpretation of state law and the terms of a
contract." Id. (quotation and citation omitted). "Summary judgment is appropriate 'if
the pleadings, the discovery and disclosure materials on file, and any affidavits show
that there is no genuine issue as to any material fact and that the movant is entitled
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to judgment as a matter of law.'" Alvarez v. Des Moines Bolt Supply, Inc., 626 F.3d
410, 416 (8th Cir. 2010) (quoting Fed. R. Civ. P. 56(c)(2)).
A. Best Buy's Breach of Contract Claim
The Landlords argue that the district court erred in granting Best Buy's motion
for summary judgment on its breach of contract claims. While various choice-of-law
provisions apply to the 15 different leases, Minnesota contract law is materially
similar to all the other relevant states' contract laws.5 "Under Minnesota law, [g]eneral
5
As the district court noted, the leases are controlled by various choice-of-law
provisions. All but Arizona and Colorado—which also permit extrinsic evidence in
contract interpretation to determine contract ambiguity—are materially similar to
Minnesota:
The lease agreements for the following properties contain choice-of-law
provisions that require application of various states' laws to all of Best
Buy's claims: Ahwatukee (Arizona); Spring Creek (Arkansas); Flatiron
(Colorado); JDN Douglasville, Turner Hill (Georgia); Shoppers World
(Massachusetts); Riverdale (Minnesota); Great Northern (Ohio);
Lakepointe (Texas). Consistent with the court's choice-of-law analysis
in the December 2006 order, the court applies Minnesota law to the
remaining defendants unless an outcome determinative conflict exists
between the laws of Ohio and Minnesota. (Doc. No. 177 at 13–16.)
Nevertheless, the court states only Minnesota contract interpretation law
because, with the two exceptions . . . [,Arizona and Colorado], the other
relevant states apply materially similar principles. See Johnson v.
Earnhardt's Gilbert Dodge, Inc., 212 Ariz. 381, 132 P.3d 825, 828
(2006); Health Res. of Ark. v. Flener, 374 Ark. 208, 211, 286 S.W.3d
704 (Ark. 2008); Hoang v. Assur. Co. of Am., 149 P.3d 798, 801 (Colo.
2007); Boardman Petroleum v. Federated Mut. Ins. Co., 269 Ga. 326,
498 S.E.2d 492, 494 (1998); Ucello v. Cosentino, 354 Mass. 48, 235
N.E.2d 44, 47 (1968); City of St. Marys v. Auglaize County Bd. of
Comm'rs, 115 Ohio St. 3d 387, 875 N.E.2d 561, 566 (2007); Provident
Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 216 (Tex. 2003).
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principles of contract interpretation apply to insurance policies." W3i Mobile, LLC
v. Westchester Fire Ins. Co., 632 F.3d 432, 436 (8th Cir. 2011) (alteration in original)
(quotation and citation omitted). "We must interpret clear and unambiguous policy
language according to plain, ordinary sense so as to effectuate the intentions of the
parties." Id. (quotation and citation omitted). "Language in a policy is ambiguous if
it is susceptible to two or more reasonable interpretations." Id. (emphasis added).
The Landlords argue that the district court erred in finding that the 15 leases
required the Landlords to purchase "insurance . . . from third-party commercial
insurance companies." See Best Buy Stores, L.P., 636 F. Supp. 2d at 883. They argue
that because the leases do not define the type of insurance that the Landlords had to
provide, the First Dollar Program fits within the leases' broad definition of insurance.
Yet, the Landlords conceded at oral argument that any interpretation of the leases
must be reasonable. See W3i Mobile, LLC, 632 F.3d at 436.
1. The Lack of Capitalization Requirements Make the Landlords' Interpretation
Unreasonable
Best Buy Stores, L.P., 636 F. Supp. 2d at 878 n.14.
Arizona and Colorado permit a court to consider extrinsic evidence to
determine whether a contract is ambiguous. See, e.g., Taylor v. State
Farm Mut. Auto. Ins. Co., 175 Ariz. 148, 854 P.2d 1134, 1140 (1993)
(court considers extrinsic evidence offered to interpret contract if
contract language is "'reasonably susceptible' to the interpretation
asserted by its proponent"); E. Ridge of Fort Collins, LLC v. Larimer &
Weld Irrigation Co., 109 P.3d 969, 974 (Colo. 2005) ("[E]xtrinsic
evidence may be conditionally admitted to determine whether the
contract is ambiguous." (citation omitted)).
Id. at 879 n.15.
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Each of the leases requires liability insurance to cover shopping center common
areas. The First Dollar Program simply does not fit the bill. The Landlords'
interpretation fails because it leads to commercially unreasonable results. The
Riverdale, Spring Creek, and Shoppers World leases are illustrative. Each of those
leases expressly authorized the landlord to use the First Dollar Program to meet its
insurance obligations.6 These leases also required the landlords to meet substantial
capitalization requirements under the First Dollar Program. Specifically, the leases
required DDRC to maintain a net worth of $100,000,000. None of the three landlords
argue that DDRC met this capitalization requirement. Thus, these three landlords
failed to comply with the specific provisions of their lease by using the First Dollar
Program without complying with the corresponding capitalization requirements.
The First Dollar Program also falls short on the remaining 12 leases that have
no specific capitalization amount requirement. Under the Landlords' interpretation of
these remaining leases, the individual landlords could meet their insurance obligation
under the commercial real estate lease by self-insuring without any capitalization
requirements whatsoever. In other words, the Landlords argue that they complied
with the contract as long as they were able to find a third-party willing to take on the
risk left by the high deductible. This interpretation of the lease would lead to absurd
results that commercially reasonable parties could not have intended. For example,
under the Landlords' theory, a landlord could have purchased "insurance" from a
bankrupt individual as long as the bankrupt individual agreed to assume the risk left
by the high deductible in exchange for some sort of premium. This bankrupt
individual obviously might lack capacity to cover the costs of incidents arising in the
common area because of his or her insolvency; nonetheless, the Landlords argue that
such an arrangement satisfies their lease obligations. This is not a reasonable
interpretation of these commercial real estate leases, and we decline to interpret them
6
These leases also permitted the landlords to meet the insurance obligations by
purchasing commercial liability insurance for the common areas.
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in such a manner. We find the more plausible interpretation of "insurance" under the
lease to mean something other than the First Dollar Program. Thus, the district court
did not err in deciding that the Landlords breached their various lease agreements by
charging Best Buy for the First Dollar Program in an attempt to meet its insurance
obligations under the leases.
2. The Landlords Breached the Unambiguous Language of the Leases
We also hold that the Landlords breached the express terms of the different
leases.
Many of the leases required the Landlords to name Best Buy as an additional
insured, which those landlords did not do. See Turner Hill lease Article 22.2; JDN
Douglasville lease Article 22.2; Flatiron lease Article 22.6; Lakepointe lease Article
22.2; Wrangleboro Consumer Square lease Article 22.2; Boulevard lease Article 22.2;
Salisbury lease Article 14. Thus, even if the First Dollar Program was valid, the
landlords breached their leases by not naming Best Buy as an additional insured.
Article 12 of the JDN Overlook lease required that the landlord procure
insurance from a company allowed to do business in Tennessee. We read this
language to mean a company licensed to sell insurance in the State of Tennessee.
Because DDRC is not a licensed insurance company, the landlord did not comply
with the unambiguous terms of that lease.
Article 9H of the Ahwatukee lease expressly mentions insurance provided by
an "insurance carrier." Because DDRC is not an insurance carrier, as it conceded in
its brief and at oral argument, the landlord did not comply with the lease.
Section 9.6 of the Great Northern lease required the landlord to purchase an
insurance policy. We read this language to require a policy from a licensed insurance
company. Because the First Dollar Program was not a policy from a licensed
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insurance company, it was not an insurance policy, and the landlord did not comply
with the unambiguous terms of the lease by treating it as such.
The Nassau Park and Cool Springs leases required Best Buy to pay for
insurance premiums. See Nassau Park lease Article 23.2; Cool Springs lease Article
23(b). We read this language as referring to insurance premiums paid to a licensed
insurance company. Because the First Dollar Program premiums were not charged by
a licensed insurance company, they were not insurance premiums within the
unambiguous terms of the lease.
Finally, the Riverdale, Spring Creek, and Shoppers World leases authorized the
landlords to meet their insurance obligations under the First Dollar Program as long
as the landlords met specific capitalization requirements. See Riverdale lease Article
22.2; Spring Creek lease Article 22.2; Shoppers World lease Article 22.2. The
landlords did not meet those requirements; thus, they did not comply with the
unambiguous terms of the lease.
Based on the unambiguous language of the leases, we find the Landlords'
interpretation of the leases to be unreasonable. Because the Landlords breached the
leases, we find that the district court did not err in determining that the Landlords
breached their contracts with Best Buy.
B. The Landlords' Equitable Defenses
The Landlords argue that even if they breached the leases, the district court
erred in granting summary judgment to Best Buy on its breach of contract claims.
The Landlords raise four equitable defenses—equitable estoppel, waiver,
voluntary payment, and account stated. While different choice-of-law provisions
apply to the various leases, the elements of each of the defenses claim are materially
similar to Minnesota law.
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To state a defense for equitable estoppel:
1. There must be conduct[,] acts, language[,] or silence amounting to a
representation or a concealment of material facts. 2. These facts must be
known to the party estopped at the time of his said conduct, or at least
the circumstances must be such that knowledge of them is necessarily
imputed to him. 3. The truth concerning these facts must be unknown to
the other party claiming the benefit of the estoppel, at the time when
such conduct was done, and at the time when it was acted upon by him.
4. The conduct must be done with the intention, or at least with the
expectation, that it will be acted upon by the other party, or under such
circumstances that it is both natural and probable that it will be so acted
upon. * * * 5. The conduct must be relied upon by the other party, and,
thus relying, he must be led to act upon it. 6. He must in fact act upon it
in such a manner as to change his position for the worse, in other words,
he must so act that he would suffer a loss if he were compelled to
surrender or forego or alter what he has done by reason of the first party
being permitted to repudiate his conduct and to assert rights inconsistent
with it.
Brekke v. THM Biomedical, Inc., 683 N.W.2d 771, 777 (Minn. 2004) (third alteration
in original) (quotation and citation omitted).7
"[W]aiver is the intentional relinquishment of a known right." Valspar Refinish,
Inc. v. Gaylord's Inc., 764 N.W.2d 359, 367 (Minn. 2009) (quotation and citation
7
See also Valencia Energy Co. v. Ariz. Dep't of Revenue, 959 P.2d 1256,
1267–70 (Ariz. 1998); Sterne, Agee & Leach, Inc v. Way, 270 S.W.3d 369, 374 (Ark.
App. 2007); Thurman v. Tafoya,895 P.2d 1050, 1058 (Colo. 1995); Noons v. Holiday
Hospitality Franchising, Inc., 705 S.E.2d 166, 168 (Ga. App. 2010); Boylston Dev.
Grp., Inc. v. 22 Boylston St. Corp., 591 N.E.2d 157, 163–64 (Mass. 1992); Culp v.
Marshall & Melhorn, 729 N.E.2d 1240, 1243 (Ohio Ct. App. 1999); Johnson &
Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 515–16 (Tex. 1998).
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omitted).8 Therefore, a valid waiver requires both (1) knowledge of the right and (2)
an intent to waive the right. Stephenson v. Martin, 259 N.W.2d 467, 470 (Minn.
1977) (per curiam). Waiver may be express or implied; "knowledge may be actual or
constructive and the intent to waive may be inferred from conduct." Valspar Refinish,
Inc., 764 N.W.2d at 367 (quotation and citation omitted).
"The voluntary payment doctrine is a long-standing doctrine of law, which
clearly provides that one who makes a payment voluntarily cannot recover it on the
ground that he was under no legal obligation to make the payment." Hanson v. Tele-
Commc'ns, Inc., No. C7-00-534, 2000 WL 1376533, at *3 (Minn. Ct. App. Sept. 26,
2000) (unpublished).9
"An account stated is a manifestation of assent by a debtor and creditor to a
stated sum as an accurate computation of an amount due the creditor." Mountain
8
See also Verma v. Stuhr, 221 P.3d 23, 36 (Ariz. Ct. App. 2009); City of Ft.
Smith v. McCutchen, 279 S.W.3d 78, 81 (Ark. 2008); Dep't of Health v. Donahue,
690 P.2d 243 (Colo. 1984); Young v. Oak Leaf Builders, Inc., 626 S.E.2d 240, 243
(Ga. Ct. App. 2006); Dynamic Mach. Works, Inc. v. Mach. & Elec. Consultants, Inc.,
831 N.E.2d 875, 879 (Mass. 2005); State ex rel. Wallace v. State Med. Bd. of Ohio,
732 N.E.2d 960, 965 (Ohio 2000); In re General Elec. Capital Corp., 203 S.W.3d
314, 316 (Tex. 2006) (per curiam).
9
See also Moody v. Lloyd's of London, 152 P.2d 951 (Ariz. 1944); Vandiver v.
Banks, 962 S.W.2d 349, 353 (Ark. 1998); Skyland Metro. Dist. v. Mountain W.
Enter., LLC, 184 P.3d 106, 127 (Colo. App. 2007); Yeazel v. Burger King Corp., 526
S.E.2d 112, 119 (Ga. Ct. App. 1999); Carey v. Fitzpatrick, 17 N.E.2d 882, 883 (Mass.
1938); State ex rel. Dickman v. Defenbacher, 86 N.E.2d 5, 7 (Ohio 1949) (per
curiam); TCI Cablevision of Dallas, Inc. v. Owens, 8 S.W.3d 837, 844 (Tex. Ct. App.
2000).
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Peaks Fin. Servs., Inc. v. Roth-Steffen, 778 N.W.2d 380, 387-88 (Minn. Ct. App.
2010) (quotation and citation omitted).10
As the district court noted, each of the equitable defenses contains a knowledge
component that creates a fact issue that is generally inappropriate for summary
judgment. See, e.g., Valspar Refinish, Inc., 764 N.W.2d at 367 ("Waiver generally is
a question of fact, and [i]t is rarely to be inferred as a matter of law." (alteration in
original quotation and citation omitted)); Rhee v. Golden Home Bldrs., Inc., 617
N.W.2d 618, 622 (Minn. Ct. App. 2000) ("The application of equitable estoppel is a
question of fact unless only one inference can be drawn from the facts."); Valspar
Refinish, Inc., 764 N.W.2d at 367 ("Waiver generally is a question of fact, and [i]t is
rarely to be inferred as a matter of law." (alteration in original quotation and citation
omitted)); Cherne Contracting Corp. v. Wausau Ins. Cos., 572 N.W.2d 339, 345
(Minn. Ct. App. 1997) (deciding summary judgment to be inappropriate because a
question of fact existed as to the plaintiff's knowledge).
Notwithstanding that general principle, the district court granted summary
judgment to Best Buy because it found that "no evidence support[ed] Best Buy's
actual or constructive knowledge that the insurance charges in the reconciliation
documents for the 1998 to 2003 lease years included costs for the program outlined
in the 1998 [M]emorandum." Best Buy Stores, L.P., 636 F. Supp. 2d at 886. The court
stated:
10
See also Holt v. W. Farm Servs., Inc., 517 P.2d 1272, 1273–74 (Ariz. 1974);
NW. Ark. Recovery, Inc. v. Davis, 200 S.W.3d 481, 486 (Ark. 2004); Polichio v.
Oliver Well Works, Inc., 362 P.2d 1056 (Colo. 1961); Lawson v. Dixie Feed & Seed
Co., 145 S.E.2d 820, 821–22 (Ga. Ct. App. 1965); Milliken v. Warwick, 28 N.E.2d
224, 226 (Mass. 1940); Chase Bank, USA v. Curren, 946 N.E.2d 810, 816 n.2 (Ohio
Ct. App. 2010); Neil v. Agris, 693 S.W.2d 604, 605 (Tex. Ct. App. 1985).
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[The 1998] [M]emorandum put Best Buy on notice that the first dollar
program existed. The annual reconciliations during this period, however,
identified only "large deductibles" and "Self-Insured Deductible costs."
The use of the term "deductible" to identify the first dollar program
contradicts the 1998 [M]emorandum's explanation that the "self-funded
coverage, while similar to a deductible, is not, in fact, a deductible." (Pl.
Ex. 112.) Therefore, the equitable defenses raised by the landlord
defendants do not prevent Best Buy from bringing its breach of contract
claim for the 1998 to 2003 lease years.
Id. The district court also found that Best Buy properly objected to the charges,
making the equitable defenses inapplicable.
While the district court correctly notes that describing the charges for the First
Dollar Program as deductibles conflicts with the 1998 Memorandum's description of
the charges, this conflict is not dispositive. Rather, this conflict is one of many
considerations the finder of fact must weigh to determine whether Best Buy had
constructive or actual knowledge; specifically, whether Best Buy knew that the
Landlords were charging it for something other than commercial liability insurance
from a third-party insurance provider. Indeed, describing the costs as "Self-Insured
Deductible costs" may have at least raised some suspicion that a third-party insurance
company was not providing coverage for the common areas.
In addition, other facts may also support Best Buy's knowledge of the
Landlords' use of the First Dollar Program. For example, Best Buy expressly
permitted three landlords to meet their insurance obligations under the First Dollar
Program subject to certain capitalization requirements. This may show that Best Buy
knew of DDRC's use of the First Dollar Program. Moreover, in mid-2000, after
receiving the first reconciliation documents, Best Buy twice requested underlying
documents supporting certain landlords' insurance charges. This fact could lend
support to the contention that Best Buy knew it was paying for something that the
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lease did not permit. Also, Best Buy's continued rent payments for several years
despite not having received the requested information may show only that they did
not wish to breach their lease; however, the payments might also show that Best Buy
knew the ramifications of the First Dollar Program and acquiesced to its use. Under
these circumstances, we cannot say that there is no issue of disputed fact surrounding
Best Buy's knowledge of the First Dollar Program. We find that the district court
erred in determining that the Landlords' affirmative defenses regarding Best Buy's
breach of contract claims for the 1999–2004 lease years because disputed issues of
fact remain regarding Best Buy's knowledge during that time period. Thus, we reverse
the district court's grant of summary judgment to Best Buy on its breach of contract
claims for the 1999–2004 lease years.
As for the remaining lease years, 2005 to 2009, Best Buy protested those
charges by filing this lawsuit. Thus, the equitable defenses alleging that Best Buy
acquiesced to the charges for the First Dollar Program would not apply. Further, we
agree with the district court's analysis that the voluntary payment doctrine does not
apply to the 2005 to 2009 lease years because Best Buy was under economic duress.
Thus, we affirm the district court's order granting summary judgment to Best Buy on
its breach of contract claims for 2005–2009.
C. Damages
The Landlords also argue that the district court erred by applying the wrong
method in calculating Best Buy's damages.11 The Landlords argue that the proper
method of calculating damages should be the difference between what third-party
commercial insurance would have cost Best Buy and the amount Best Buy paid for
the First Dollar program. Yet, the district court found that Best Buy could recover the
11
We only address the damage award for the 2005–2009 lease years because we
remand for the trier of fact to determine Best Buy's breach of contract claim for the
1999–2004 lease years in light of the Landlords' equitable defenses.
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amount that it paid for the First Dollar Program. See Best Buy Stores, L.P. v.
Developers Diversified Realty Corp., No. 05-2310, 2010 WL 4628548 at 5 (D. Minn.
Nov. 4, 2010).
The Landlords' argument misses the point of the suit. Best Buy sued the
Landlords because the Landlords charged for something that was not insurance and
thus not permitted by the contract—not simply the wrong type of insurance. The
dispute is not that Best Buy was charged too much for insurance but that it was
charged for something that was not insurance at all. We hold that the district court
correctly found that Best Buy could recoup the money that it paid for the First Dollar
Program for the 2005–2009 lease years. Cf. Logan v. Norwest Bank Minn., N.A., 603
N.W.2d 659, 663 (Minn. Ct. App. 1999) (holding that the benefit the plaintiff
received to be irrelevant to determine expectation damages, "[i]f [the plaintiff] can
show that [the lender] breached the contract . . . she would be entitled to be placed in
the position she would have been [in] if Norwest had complied with the parties'
contract and purchased only coverages authorized by that contract."). Thus, we reject
the Landlords' argument that Best Buy should only receive the amount of damages
necessary to place it in the position it would have been in had the Landlords complied
with the contract.
Because we find that the district court erred in granting summary judgment to
Best Buy, we need not address the applicable pre-judgment interest rate until after the
resolution of Best Buy's breach of contract claims for the 1999–2004 lease years.
D. Best Buy's Dismissed Fraud Claims
On cross-appeal, Best Buy argues that the district court erred in dismissing its
remaining fraud claims with prejudice.
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"A district court's decision to allow a plaintiff to dismiss a case voluntarily is
reviewed for abuse of discretion." Crawford v. Hoffman-La Roche Ltd., 267 F.3d 760,
764 (8th Cir. 2001).
Here, Best Buy could have prosecuted its remaining fraud claims at a jury trial;
instead it elected to file a Rule 41 motion to get a final judgment. In doing so, it
risked the possibility that the district court would dismiss those claims with prejudice.
Nonetheless, Best Buy voluntarily moved to dismiss its remaining fraud claims
without prejudice. Using its discretion, the district court found that it would be unfair
to allow Best Buy to dismiss its remaining fraud claims without prejudice, after years
of litigation, on the condition that it could reassert those claims if the results on
appeal were unfavorable. We hold that the district court did not abuse its discretion
by dismissing Best Buy's remaining fraud claims with prejudice.
III. Conclusion
Accordingly, we affirm the district court's determination that the Landlords
breached their contracts with Best Buy and its dismissal with prejudice of Best Buy's
remaining fraud claims. We reverse the district court's grant of summary judgment to
Best Buy since the Landlords raised equitable defenses that contain genuine issues
of material fact. We remand the case for further proceedings consistent with this
opinion.
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