                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 08-3661
                                 ________________

David Eastling; EFP, LLC, a                 *
Minnesota Limited Liability                 *
Company,                                    *
                                            *
             Appellants,                    *
                                            *      Appeal from the United States
      v.                                    *      District Court for the
                                            *      District of Minnesota.
BP Products North America, Inc., a          *
Maryland Corporation,                       *
                                            *
             Appellee.                      *

                                 ________________

                             Submitted: June 9, 2009
                                 Filed: August 27, 2009
                                ________________

Before MURPHY, ARNOLD and GRUENDER, Circuit Judges.
                       ________________

GRUENDER, Circuit Judge.

       David Eastling and EFP, LLC (collectively, “Eastling”), entered into a real
estate contract with BP Products North America (“BP”) to purchase from BP the
property on which Eastling had been operating a gas station. The real estate contract
included a restrictive covenant preventing the sale of any non-BP petroleum products
on the property. Eastling filed suit, seeking a declaratory judgment that the restrictive
covenant was no longer valid and enforceable. Both parties filed motions for
summary judgment. The district court1 granted summary judgment to BP, and
Eastling appeals. For the following reasons, we affirm.

I.    BACKGROUND

       In November 2003, Eastling purchased the land and a BP-branded gas station
located at 600 Boone Avenue North in Golden Valley, Minnesota, from BP pursuant
to a real estate contract. Before purchasing the property, Eastling had been operating
the gas station as a retail contract operator, meaning Eastling leased the station from
BP. BP had initially intended to develop the property as a company-operated BP
Connect convenience store and gas station,2 but it instead decided to sell the property
to Eastling.

       Under the real estate contract, BP agreed to sell the property to Eastling subject
to certain “Restrictive Covenants,” which were “annexed . . . and made a part” of the
real estate contract. The “Petroleum Restriction,” one of the restrictive covenants
found in the second attachment to the real estate contract, states,

              No part of the Property shall be used by Grantee [Eastling] or any
      other Grantee Party for an automobile service station, petroleum station,
      gasoline station, convenience store, quick-lube facility, or automobile
      repair shop, or for the purpose of conducting or carrying on the business
      of selling, offering for sale, storage, handling, distributing, or dealing in
      petroleum, gasoline, diesel fuel, kerosene, benzol, naphtha, greases,
      lubricating oils, any fuel used for internal combustion engines, lubricants
      in any form, automobile parts or accessories, tires, batteries, or other

      1
      The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.
      2
        According to the deposition testimony of Patrick Saunders, a BP employee, at
that time a “BP Connect” was a 4200-square-foot gas station and convenience store,
owned and operated by BP, offering made-to-order sandwiches and limited seating.

                                          -2-
      petroleum or petroleum-related products, except for the personal use or
      consumption of such products by Grantee or other occupants of the
      Property. For purposes of this restriction, the term “convenience store”
      shall mean any retail business with its primary emphasis on providing
      the public with a convenient location to quickly purchase a wide array
      of consumable products (predominantly food or food and gasoline) and
      services.

             The above covenants and use restrictions bind and restrict the
      Property as covenants and restrictions running with the land and are
      deemed to benefit Grantor [BP] as an owner or lessee of lands in
      Hennepin County, Minnesota, or as the operator of retail operations in
      such County. These restrictive covenants will remain in full force and
      effect for a term of approximately ten (10) years commencing on the
      Closing Date and terminating on the tenth (10th) anniversary after the
      Completion Date, . . . whereupon these restrictive covenants will
      automatically lapse and terminate and be of no further force or effect.

To allow Eastling to continue to operate the gas station as a BP-branded station, the
real estate contract further provided,

             Purchaser expressly acknowledges and agrees that Seller has
      entered into this Contract only upon the express understanding that the
      Property shall (for 10 years, or shorter period if Amoco/BP and its
      successors and assigns cease to serve the area in which the Property is
      located), continue to be used following closing as an Amoco/BP (or its
      successors or assigns)-branded retail gasoline station supplied by
      Amoco/BP (or its successors or assigns)-branded jobber. Therefore,
      Seller hereby agrees that the petroleum use restriction set forth in
      Attachment #2 shall not be enforced by Seller against Purchaser or
      subsequent owner’s [sic] of the Property, and Seller agrees to waive the
      same, so long as the gasoline station located on the Property continues
      to be an Amoco/BP (or its successors or assigns)-branded station
      supplied by Amoco/BP (or its successors or assigns)-branded jobber . . . .
      If Amoco/BP (or its successors and assigns) cease serving the area
      within which the Property is located, then Amoco/BP (or its successors


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      or assigns) shall execute a recordable release to remove the petroleum
      use restriction from the Property.

      The real estate contract also required Eastling to convert the station to a BP-
Connect-style store.3 Eastling claims that at the time of the sale, BP told him that it
was planning to invest heavily in the Minneapolis-St. Paul market and that it planned
to convert all of its Twin Cities stations to BP Connect stores. Eastling contends that
he agreed to purchase the property and convert the station to a BP-Connect-style store
based on BP’s representation that it intended to develop BP Connect stores throughout
the Twin Cities market.

       Finally, the real estate contract required Eastling to enter into a “dealer supply
agreement” with BP, which provided that BP would be the exclusive supplier of
petroleum products to Eastling’s station for ten years, beginning on December 16,
2004. The dealer supply agreement contained an early-termination option allowing
Eastling to terminate it by giving BP ninety days’ notice, paying all financial
obligations then accrued, and paying certain liquidated damages.

       After spending nearly three million dollars to purchase the property and rebuild
the station, Eastling opened the BP-Connect-style store in 2004. Soon after, he
learned that BP had decided to “decapitalize” the Twin Cities market. Between 2005
and 2006, BP sold its interests in all properties it owned in Hennepin County and
assigned all of the leases it had in the market to those purchasers. BP did, however,
continue to supply petroleum products to its branded stations in the Twin Cities
market.




      3
        Because it was not owned by BP, Eastling’s station would not technically
qualify as a BP Connect store, but the real estate contract required Eastling to build
the station in the same style as a BP Connect.

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        Eastling filed suit, seeking a declaratory judgment that the Petroleum
Restriction was no longer binding. Eastling argued that because BP no longer owned
or leased lands or operated retail operations in Hennepin County, it no longer
benefitted from the Petroleum Restriction “as an owner or lessee of lands in Hennepin
County.” Therefore, according to Eastling, the Petroleum Restriction no longer served
its original purpose, and circumstances had changed so as to invalidate the Petroleum
Restriction. Both parties filed motions for summary judgment. The district court
granted BP’s motion for summary judgment and dismissed Eastling’s motion. The
district court found that the language of the real estate contract and Petroleum
Restriction was clear and unambiguous and that, “at the time the parties entered into
the transaction, they intended that the property . . . would carry a restrictive covenant
that it could only be operated as a BP-branded station for ten years, so long as the
property was operated as a gas station and BP supplied petroleum products in the
area.”

      The district court rejected Eastling’s argument that because of BP’s decision to
decapitalize the Twin Cities market, circumstances had changed so as to invalidate the
Petroleum Restriction. In support, the court relied on Double Diamond Properties,
LLC v. Amoco Oil Co., 487 F. Supp. 2d 737 (E.D. Va. 2007), aff’d, Double Diamond
Props., LLC v. BP Prods. N. Am., Inc., 277 Fed. Appx. 312 (4th Cir. 2008). Double
Diamond also involved a restrictive covenant on a gas station property that prohibited
the sale of non-BP petroleum products on the property and BP’s decision to
decapitalize the Southeastern Virginia market. Id. at 740-41. The district court in
Double Diamond concluded that the purpose of the restrictive covenant was to benefit
BP as a refiner and supplier of its branded petroleum and that the restrictive covenant
continued to benefit BP even after its decision to decapitalize the Southeastern
Virginia market. Id. at 746. Eastling attempted to distinguish Double Diamond by
noting that the restrictive covenant in that case explicitly stated that its purpose was
to benefit BP “as an owner or lessee of lands” in the area “or as the operator or
supplier of retail operations” in the area, whereas here the Petroleum Restriction stated

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only that it was to benefit BP “as an owner or lessee of lands in Hennepin County,
Minnesota, or as the operator of retail operations” in Hennepin County. The district
court rejected that argument, citing provisions in both the Petroleum Restriction and
the real estate contract and concluding that the parties’ agreement reflected a broader
purpose of ensuring that so long as BP supplied petroleum products to the area and the
property was operated as a gas station, the property would be a BP-branded station.
The district court determined that even though BP did not own or lease lands or
operate retail operations in Hennepin County, BP still benefitted from the property’s
status as a BP-branded station. Consequently, the district court granted BP’s motion
for summary judgment and denied Eastling’s motion for summary judgment.

II.   DISCUSSION

      We review a district court’s decision to grant summary judgment de novo, and
we may affirm on any grounds supported by the record. Am. Home Assur. Co. v.
Pope, 487 F.3d 590, 598 (8th Cir. 2007). A court should grant a motion for summary
judgment “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 to judgment as a matter of law.” Fed. R. Civ. P. 56(c). We view
the evidence in the light most favorable to the nonmoving party. Am. Home Assur.
Co., 487 F.3d at 598.

       Under Minnesota law, restrictive covenants are strictly construed, but they are
enforced to the extent of the “true intent of the parties.” See Naftalin v. John Wood
Co., 116 N.W.2d 91, 100 (Minn. 1962). Eastling argues that we should read the
Petroleum Restriction in isolation and that the district court erred by reading it in
conjunction with the real estate contract. According to Eastling, the only benefits the
Petroleum Restriction itself conferred on BP were tied to BP’s status as an owner or
lessee of lands or the operator of retail operations in Hennepin County. Under this
theory, if we look to the Petroleum Restriction in isolation, then once BP was no

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longer an owner or lessee of lands or the operator of retail operations in Hennepin
County, it could no longer benefit from the Petroleum Restriction. However, “[i]t is
an elementary principle of law that a contract must be construed as a whole,” and
“[t]he intention of the parties must be gathered from the entire instrument and not
from isolated clauses.” Telex Corp. v. Data Prods. Corp., 135 N.W.2d 681, 685
(Minn. 1965). The “Restrictive Covenants,” including the Petroleum Restriction, are
“annexed” to the real estate contract as part of the second attachment to the contract.
Moreover, the real estate contract specifically refers to and makes the restrictive
covenants “part” of the real estate contract. See, e.g., Katzner v. Kelleher Constr., 545
N.W.2d 378, 379-80 (Minn. 1996) (applying, as part of the contract, conditions that
were incorporated by reference). Accordingly, we conclude that the Petroleum
Restriction is a part of the real estate contract, which we must read as a whole. Thus,
the district court did not err when it considered the real estate contract and the
Petroleum Restriction together.

       Eastling next argues that the Petroleum Restriction only identifies a benefit to
BP as an owner or lessee of lands or operator of retail operations in Hennepin County.
Because BP sold its property, gave up its leases, and no longer operated retail
operations in Hennepin County, Eastling argues that BP severed the benefit identified
in the Petroleum Restriction from its roles listed in the Petroleum Restriction. In other
words, once BP was no longer an owner or lessee of lands or operator of retail
operations in Hennepin County, it could no longer enforce the benefit identified in the
Petroleum Restriction. We disagree. As the district court explained, the purpose of
the Petroleum Restriction is “clear from its language: to ensure that so long as BP
supplies petroleum products to this area, and so long as the property is operated as a
gas station, the property will be a BP-branded station.”

      Eastling asserts that we should reach a contrary conclusion based on In re
Turners Crossroad Development Co., 277 N.W.2d 364 (Minn. 1979), but again we
disagree.    In Turners Crossroad, McCarthy’s St. Louis Park Cafe, Inc.

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(“McCarthy’s”) conveyed a tract of land (“Tract I”) to the Minneapolis Baseball and
Athletic Association (“MBAA”) with a restriction preventing the sale of food or liquor
on the land except for the kinds typically sold in connection with a baseball game. Id.
at 366-67. McCarthy’s owned another tract of land (“Tract II”) next to Tract I, on
which it operated a restaurant and liquor store. Id. at 367. McCarthy’s subsequently
conveyed all of its assets to McCarthy Enterprises, which then conveyed Tract II to
Eddie Webster’s, Inc. with a deed that reserved to McCarthy Enterprises the right to
enforce the restriction. The MBAA later conveyed Tract I to Turners Crossroad
Development Co. (“Turners”). Id. at 368. Turners planned to build restaurants and
bars on Tract I. Id. McCarthy Enterprises attempted to block the proposed
development by enforcing the restriction. Id. The Minnesota Supreme Court
concluded that the purpose of the restriction was to protect McCarthy’s restaurant and
liquor store from competition. Therefore, the covenant ran with the land and was not
a personal benefit to McCarthy Enterprises. Id. at 371. Because the restriction ran
with the land and benefitted Tract II, McCarthy Enterprises’ attempt to reserve the
enforcement right to itself after conveying the property to Eddie Webster’s was held
to have extinguished the restriction. Id. at 372.

       Eastling argues that Turners Crossroad compels us to conclude that BP could
no longer enforce the Petroleum Restriction once it severed the benefit, but Turners
Crossroad is distinguishable. There, the restriction clearly benefitted a neighboring
property, since the constraints on the kinds of food and liquor that could be sold on
Tract I protected the restaurant on the adjacent Tract II from competition. The
restriction did not confer a general benefit on McCarthy’s or McCarthy Enterprises
as individual entities; rather, it only benefitted them in their capacities as owners of
the tract on which the restaurant was located. See id. at 372. Here, there is no
particular property, such as an adjoining piece of land, that was intended to benefit
from the Petroleum Restriction. Unlike Turners Crossroad, in which McCarthy
Enterprises could no longer benefit once it sold Tract II, BP benefits from the
Petroleum Restriction by its continuing presence in the Twin Cities market through

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the sales of its petroleum products. Thus, Turners Crossroad does not compel us to
find that the Petroleum Restriction was extinguished.4

      Eastling also argues that BP’s decapitalization of the Twin Cities market
amounts to a change in circumstances such that enforcement of the Petroleum
Restriction is unreasonable and that the district court erred by applying the reasoning
of Double Diamond in analyzing whether circumstances had changed. Minnesota
courts have determined that conditions may change to defeat the purpose of a


       4
        Furthermore, we predict that the Minnesota Supreme Court would apply the
principles set forth in the Restatement (Third) of Property: Servitudes, even though
the court has not relied on that particular restatement before. See, e.g., Larson v.
Wasemiller, 738 N.W.2d 300, 306 (Minn. 2007) (noting that the Minnesota Supreme
Court has “frequently relied on the Restatement of Torts to guide [its] development
of tort law in areas that [it has] not previously had an opportunity to address”);
Turners Crossroad, 277 N.W.2d at 369-72 (applying the reasoning of the then-current
Restatement of Property); see also Magnuson v. Diekmann, 689 N.W.2d 272, 274-75
(Minn. Ct. App. 2004) (relying on the Restatement (Third) of Property: Wills and
Other Donative Transfers where Minnesota caselaw did not resolve the issue). The
Restatement (Third) of Property: Servitudes recognizes the enforceability of a “benefit
in gross,” which is a benefit “not tied to ownership or occupancy of a particular unit
or parcel of land.” Restatement (Third) of Prop.: Servitudes § 1.5(2). A benefit is in
gross if the parties intend for it to be in gross. See id. § 4.1(1). If the intention of the
parties is not ascertainable, however, a benefit may still be in gross “if it serves a
purpose that would be more useful to the original beneficiary than it would be to a
successor to an interest in property held by the original beneficiary at the time the
servitude was created.” Id. § 4.5(1)(b). In our view, the Petroleum Restriction,
together with the real estate contract, shows that the parties intended to create a benefit
in gross. Assuming, however, that the intention of the parties was not ascertainable,
the benefit would still be in gross because the Petroleum Restriction serves a purpose
more useful to BP than it would be to a successor to an interest in property held by BP
at the time the servitude was created. Thus, under the Restatement (Third) of
Property: Servitudes, the Petroleum Restriction created an enforceable benefit in
gross, which BP retained when it sold its property, gave up its leases, and no longer
operated retail operations in Hennepin County.

                                            -9-
restriction on land use. See Burger v. City of St. Paul, 64 N.W.2d 73, 81 (Minn. 1954)
(“Conditions change from time to time and therefore no hard-and-fast rule can be laid
down as to when change in condition will defeat the purpose of the restrictions. It is
generally held that the changes must be of such impact as to practically destroy the
essential objects and purposes of the restrictive use . . . .”). We find that the
decapitalization did not “practically destroy the essential objects and purposes of the”
Petroleum Restriction. Reading the real estate contract as a whole, as we must, we
agree with the district court that the purpose of the Petroleum Restriction was to
ensure that Eastling sold only BP petroleum products at the 600 Boone Avenue North
property for at least ten years, and that purpose still exists. As the district court noted,
“BP still supplies the Twin Cities market with gasoline and benefits from the Boone
Avenue station’s status as a BP-branded station.”

       Eastling further claims that the restrictions imposed by the Petroleum
Restriction do not run with the land and so do not bind Eastling’s successors.
However, as we have already stated, we read the Petroleum Restriction as part of the
real estate contract. The Petroleum Restriction explicitly states that “[t]he above
covenants and use restrictions bind and restrict the Property as covenants and
restrictions running with the land.” Accordingly, we reject the premise that the
restrictions do not run with the land.5




       5
       Eastling also argues that because the dealer supply agreement allows for the
possibility of early termination, BP cannot claim that it benefits from continuing to
supply petroleum products at the property, as Eastling can choose to terminate the
dealer supply agreement at any time. However, even if Eastling chose to terminate
the dealer supply agreement, the Petroleum Restriction would still prohibit Eastling
from selling any other petroleum products on the property. Regardless, Eastling failed
to make this argument in its opening brief, so it is waived. See Eckert v. Titan Tire
Corp., 514 F.3d 801, 805 n.2 (8th Cir. 2008).

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III.   CONCLUSION

       Accordingly, we affirm the district court’s grant of summary judgment.
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