Opinion
No. 43061.
January 21, 1972.
Landlord and tenant — action for rent — claimed duty of landlord to mitigate damages.
Action in the Ramsey County District Court brought by Harry Poboisk to recover rent payments allegedly due under a lease executed by defendants, Vernon R. Colon and William E. DeWolf. The court, Stephen L. Maxwell, Judge, granted plaintiff's motion for summary judgment against both defendants and defendant Colon's motion for summary judgment for indemnity against defendant DeWolf. Defendant DeWolf appealed from the judgment entered. Affirmed.
Andrew P. Engebretson, for appellant.
Heard before Knutson, C. J., and Otis, Rogosheske, and Peterson, JJ.
Appeal by defendant William E. DeWolf from a judgment in an action by plaintiff for rent due under a written lease. Plaintiff's motions to strike the allegation in defendant DeWolf's answer that plaintiff failed to mitigate damages, and for summary judgment against defendants DeWolf and Vernon R. Colon, were granted. During the pendency of the appeal, defendant Colon satisfied the judgment, and only DeWolf has filed a brief requesting us to determine whether, and under what circumstances, a landlord has a duty to procure a new tenant for the purpose of mitigating the damages recoverable from the tenant who abandons the premises before the expiration of the term specified in the lease.
We regard the appeal as a request for an advisory answer to a hypothetical question since our examination of the entire district court file in this case clearly indicates that the trial court, upon the pleadings and answers to interrogatories submitted by plaintiff, was compelled to grant the summary judgment entered upon the ground that there was no genuine issue as to any material fact supporting any factual basis, such as plaintiff's acceptance of a surrender of the premises by reentry, that would have supported any duty or requirement on the part of plaintiff to mitigate damages. See, Gruman v. Investors Diversified Services, Inc. 247 Minn. 502, 78 N.W.2d 377 (1956); Haycock v. Johnston, 97 Minn. 289, 106 N.W. 304 (1906); Id. 81 Minn. 49, 83 N.W. 494, 1118 (1900); Annotation, 21 A.L.R. 3d 534, 539; 49 Am.Jur.2d, Landlord and Tenant, §§ 620, 621; 3 Tiffany, Law of Real Property (3 ed.) § 902; 52 C.J.S., Landlord and Tenant, § 498.
Affirmed.
MR. JUSTICE TODD, not having been a member of this court at the time of the argument and submission, took no part in the consideration or decision of this case.