Hennen v. Omega Enterprises, Inc. ( 1994 )


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  •                              No.   93-509
    IN THE SUPREME COURT OF THE STATE OF MONTANA
    C. JAMES HENNEN, d/b/a MONTANA
    JIM'S CASINO,
    Plaintiff and Appellant,
    OMEGA ENTERPRISES, INC.,
    and SUMFUN, LTD. ,
    Defendants and Respondents.
    APPEAL FROM:   District Court of the Eighth Judicial District,
    In and for the County of Cascade,
    The Honorable Joel G. Roth, Judge presiding.
    COUNSEL OF RECORD:
    For Appellant:
    J. Michael Young and Steven T. Potts, Jardine,
    Stephenson, Blewett & Weaver, P.C., Great
    Falls, Montana
    For Respondents:
    James R. Walsh and Gregory G. Smith, Smith,
    Walsh, Clarke & Gregoire, Great Falls, Montana
    Submitted on Briefs:    March 10, 1994
    Decided:   April 19, 1994
    Filed:
    Chief Justice J. A. Turnage delivered the Opinion of the Court.
    C. James Hennen brought this action before the Eighth Judicial
    District Court, Cascade County, requesting declaratory judgment
    concerning the contractual status of the parties, an injunction
    requiring Omega Enterprises, Inc. (Omega) to remove its gambling
    machines from Hennen's place of business, and an accounting of the
    machines' profits and expenses. Hennen moved the court for partial
    summary judgment on the declaratory judgment and injunction issues.
    Omega opposed partial    summary judgment and moved      to dismiss
    Hennen's request for an injunction.     The court denied Hennen's
    motion for summary judgment and granted Omega's motion to dismiss.
    Hennen appeals.   We reverse and remand.
    We rephrase the dispositive issues as follows:
    1.   Whether this appeal is premature.
    2.   Whether the District Court erred by refusing to find that
    the parties' business contract was terminated.
    C. James Hennen met with Omega's representative, John Gordon,
    to discuss and create a business contract.    Hennen was interested
    in opening a casino in the Great Falls area but lacked capital, a
    liquor license and gambling machines, among other things.
    Omega had an interest in a liquor license, capital, business
    knowledge and access to gambling machines.    The parties contracted
    on October 2, 1991. After the contract was signed, Omega assigned
    part of its interest in the contract to Sumfun, Limited.
    Portions of the contract provided that Omega would provide
    Hennen's casino with gambling machines and transfer an interest in
    a liquor license to Hennen. Hennen agreed to pay, in installments,
    $45,505.08 for the liquor license.
    Although not an attorney, Gordon drafted the greater portion
    of the parties1 contract.     Both parties agree that the contract is
    not a model of clarity.     Paragraph 7 of the contract provides:
    This agreement shall run until June 30, 1996, and shall
    be renewed under the same terms and conditions unless the
    existing debt of $45,505.08 has been paid prior to June
    30, 1996.
    Paragraph 10, drafted by Hennen, provides:
    [The] agreement shall be renegotiated by the parties
    signing below at any time provided a written request is
    given within thirty (30) days prior to renegotiating.
    On April 14, 1993, Hennen notified Omega by certified letter
    that he wished to renegotiate the agreement.       The parties met the
    following month, on May 20 and 21, but failed to successfully
    renegotiate.      Hennen thereafter notified Omega that the contract
    was terminated.
    When Omega protested, Hennen initiated this action.        Hennen
    also filed a motion for partial summary judgment, requesting the
    court to declare that the contract was terminated and requesting
    the court to order Omega to remove its property from Hennenlscasi-
    no.   Omega opposed summary judgment by stating that the contract1s
    provisions were ambiguous and in need of judicial interpretation.
    Omega further moved to dismiss Hennenls request for an injunction,
    stating that the equitable remedy was inappropriate because Hennen
    did not suffer irreparable harm.       The court denied Hennen's motion
    for partial summary judgment and granted Omega's motion to dismiss.
    Hennen appeals.
    3
    ISSUE 1
    Is this appeal premature?
    Omega argues that this appeal, as it concerns declaratory
    judgment, is premature because Hennen did not seek Rule 54(b),
    M.R.Civ.P.,   certification of the court's order.     Hennen asserts
    that the Court should review both of the issues in his appeal
    because declaratory judgment is material to his request for an
    injunction, and the District Court s summary judgment order,
    refusing to grant the injunction, is currently appealable.
    Rule l(b)(2), M.R.App.P.,   provides
    In civil cases a party aggrieved may appeal from a
    judgment or order, except when expressly made final by
    law, in the following [case]:   ... from an order   ...
    refusing to grant ...   an injunction.
    See also State ex rel. Keast v. Krieg (1965), 
    145 Mont. 521
    , 
    402 P.2d 405
     (a court's denial of a request to quash a temporary
    injunction is appealable) .        Additionally, Rule 2, M.R.App. P.,
    provides
    upon appeal from a judgment in a civil case, the court
    may review the verdict or decision and any intermediate
    order or decision excepted or objected to within the
    meaning of Rule 46 of the Montana Rules of Civil Proce-
    dure, which involves the merits, or necessarily affects
    the judgment, except a decision or order from which an
    appeal might have been taken.
    Hennenlsmotion for partial summary judgment involved both the
    declaratory judgment and the injunction issues.       Because Hennen
    validly exercised his right to appeal the court's denial of his
    request for an injunction, this Court reviews the entire case.
    Jerome v. Pardis (1989), 
    240 Mont. 187
    , 
    783 P.2d 919
    .     We conclude
    that this appeal is not premature.
    ISSUE 2
    Did the District Court err by refusing to find that the
    parties' business contract had terminated after the parties'
    attempts at renegotiation failed?
    Omega argues that the renegotiation provision, written by
    Hennen, should be construed against Hennen because it renders the
    contract vague and ambiguous.   Omega contends that par01 evidence
    is necessary to resolve contractual ambiguities.    As affirmative
    defenses, Omega argues that Hennen contracted fraudulently and in
    bad faith, that Hennen is unjustly enriched, and that Hennen waived
    or was estopped from using his contractual right to renegotiate the
    agreement.   Hennen argues that the plain language of the contract
    allows either party to request within thirty days a renegotiation
    of   its terms, and that, accordingly, the contract has been
    terminated because Hennen notified Omega of his intent to renegoti-
    ate and the parties did not reach an agreement.
    This Court reviews a district court's decision for or against
    summary judgment by utilizing the same criteria the lower court
    used in its deliberations. Knight v. City of Missoula (1992), 
    252 Mont. 232
    , 243, 
    827 P.2d 1270
    , 1276-77.       Summary judgment is
    appropriate when there are no disputed issues of material fact and
    the movant is entitled to summary judgment as a matter of law.
    Rule 56(c), M.R.Civ.P.   When a motion for summary judgment is made
    and supported, the nonmoving party cannot rest on allegations or
    the denials of its pleadings, but must set forth specific facts
    showing that there is a genuine issue for the trial court.
    Brinkman and Lenon v. P   &   D Land Enterprises (Mont. 1994), 
    867 P.2d 1112
    , 
    51 St.Rep. 36
    .
    In this action to declare the parties' contractual standings
    the court must look to the plain language in the contract. Section
    1-4-101, MCA.   When a contract is clear and unambiguous, the court
    must enforce the contract as it was created by the parties.     Keller
    v. Dooling (1991), 
    248 Mont. 535
    , 
    813 P.2d 437
    .
    The present contract, while providing for termination on June
    30, 1996, also provided for renegotiation upon thirty days1 written
    notice from either party.       The law favors giving effect to each
    provision of a contract, see 5 28-3-202, MCA, and courts must
    interpret contractual provisions so as to allow each provision to
    be effective.    Section 28-3-201, MCA; First Security Bank of
    Anaconda v. Vander Pas (lggl), 
    250 Mont. 148
    , 
    818 P.2d 384
    .         The
    covenant in paragraph 10 of the agreement requiring that the
    agreement be renegotiated upon a thirty-day notice did not render
    the contract vague or         indefinite; rather it provided     for a
    continuing contractual relationship if after notice a successful
    renegotiation was accomplished.
    Hennen's dissatisfaction spurred his request to renegotiate
    the agreement, and when attempts at renegotiation failed, the
    contract's life was extinguished.       The court, however, found that
    the thirty-day notice renegotiation provision was at odds with the
    parties1 intent to bind each other contractually until June 30,
    1996. We hold that the finding is not supported by a plain reading
    of the contract and that the court erred.        See 5 28-3-303, MCA;
    Steer, Inc. v. Deptt of Revenue (1990), 
    245 Mont. 470
    , 
    803 P.2d 601
    . Courts are without authority to insert components in or erase
    components from unambiguous contract provisions.   In re Marriage of
    McKeon (1992), 
    252 Mont. 15
    , 8 2 
    6 P.2d 537
    .   We therefore reverse
    and remand the case for further proceedings consistent with this
    opinion.
    c &
    a
    Chief Justice
    We concur:
    

Document Info

Docket Number: 93-509

Judges: Gray, Hunt, Nelson, Trieweiler, Turnage

Filed Date: 4/19/1994

Precedential Status: Precedential

Modified Date: 11/11/2024