Busch Development, Inc. v. City of Cheyenne
| Decision Date | 20 May 1982 |
| Docket Number | No. 5639,5639 |
| Citation | 645 P.2d 65 |
| Parties | BUSCH DEVELOPMENT, INC., Appellant (Defendant and Third-Party Plaintiff), v. CITY OF CHEYENNE, Cheyenne-Laramie County Regional Planning Commission, Appellees (Plaintiffs and Counter-defendants), and Pacific Cascade Corporation, a Washington corporation, and The Lane Company, a Washington Limited Partnership, by and through Joseph C. Lane, Jr., its General Partner, Appellees (Plaintiffs), and Douglas R. Hendel, Deborah L. Hendel, Douglas S. Gamble, Jane B. Gamble, William D. Hofius and Martha Ann Hofius, Appellees (Third-Party Defendants). |
| Court | Wyoming Supreme Court |
W. Douglas Hickey and Glenn Parker of Hirst & Applegate, Cheyenne, for appellant.
Gina Guy of Guy, Williams, White & Argeris, Cheyenne, and F. Ross Boundy of Shidler, McBroom, Gates & Baldwin, Seattle, for appellees Pac. Cascade Corp. and the Lane Co.
Bernard R. Pitts, Asst. City Atty., Cheyenne, for appellees City of Cheyenne and Cheyenne-Laramie County Regional Planning Com'n.
No appearance was made on behalf of appellees Douglas R. Hendel, Deborah L. Hendel, Douglas S. Gamble, Jane B. Gamble, William D. Hofius and Martha Ann Hofius.
Before ROSE, C. J., and RAPER, THOMAS, ROONEY and BROWN, JJ.
This case involves a dispute over a sale of real property in the development of a shopping center. Appellees Pacific Cascade Corporation (Pacific) and the Lane Company (Lane) sued appellant Busch Development Corporation (Busch), the City of Cheyenne (City), and various other defendants for the reimbursement of money for landscaping a berm portion of a shopping center. Busch counterclaimed seeking enforcement of a reciprocal easement agreement. Busch also filed a third-party complaint against Hendel and others (the Hendel group) as grantees of Pacific and Lane. The City cross-claimed against Busch for enforcement of an oral contract to install the landscaping in question. The case was tried to the court. Various causes of action and parties were dismissed, so that the court ruled on the following causes of action: Pacific and Lane's complaint against Busch; the City's cross-claim against Busch; Busch's counterclaim against Pacific and Lane; and Busch's third-party complaint against the Hendel group.
The trial court found that Pacific and Lane were responsible for only a portion of the landscaping and that Busch was responsible to the City for the berm landscaping. It also interpreted the reciprocal easement agreement.
We will affirm.
In 1976, Busch purchased land in Cheyenne to develop into a shopping center. As part of that development, it sold a tract of land to Pacific, by a letter agreement, real estate purchase agreement, and reciprocal easement agreement. Pacific constructed a LaBelle's store on the site of land it had purchased and then assigned the sales contract to Lane, which in turn sold the site to the Hendel group. The lender to the Hendel group demanded that the City grant a permanent certificate of occupancy to LaBelle's before it would lend any money. Lane went to the Cheyenne-Laramie County Regional Planning Commission (Commission) and requested a permanent certificate of occupancy, but before the Commission would grant one, it demanded that Lane guarantee that certain landscaping be installed. Lane paid funds into escrow under protest, contending that Busch was responsible for part of the landscaping costs, specifically for those in the berm area.
The tract which Busch purchased and developed was divided into four major portions:
Portion 1 comprised the area presently occupied by Albertson's supermarket and several other tenants. Busch later conveyed this portion to the Kroh Brothers. This site was referred to as the "BDI site" in the reciprocal easement agreement.
Busch sold a second portion of the tract to Pacific, which comprised approximately 1.38 acres, on which portion the LaBelle's building was constructed. This site was referred to as the "PCC site" in the reciprocal easement agreement.
Busch still owns the third portion, which consists of the parking site adjacent to the LaBelle's store. This site was referred to as the "Parking Site" in the reciprocal easement agreement.
The fourth portion is the berm area, or outward perimeter surrounding the LaBelle's facility and the parking area. It is the source of the landscaping controversy. Appellees Lane and the City contend that Busch is responsible for the landscaping of this area; Busch says that Lane is responsible.
The trial court determined that Busch was responsible for landscaping the berm area because it had agreed with the City that it would do so. Busch contends that there is no basis in fact or law for granting a judgment to the City. We disagree. The evidence, taken in the light most favorable to the City, shows a written agreement by Busch to landscape the berm area.
A written agreement may consist of more than one document. Allen v. Allen, Wyo., 550 P.2d 1137 (1976). Here, the written agreement between the City and Busch consists of a series of letters, the first letter having been written on November 21, 1979, from Mr. Cliff Barber, project manager for Busch for the shopping center development, to Mr. Bonds, director of the planning office:
The next letter was one written by Barber to Bonds on November 23, 1979:
"This is to confirm our telephone conversation of today regarding Busch Development, Inc.'s commitment to place a bond in favor of the City for the completion of the landscaping on LaBelle's. * * * "
On December 6, 1979, Bonds wrote Barber a letter:
Busch argues that the written instruments signed or exchanged between the parties are the sole basis for determination of the controversy, and that they cannot be varied by the oral testimony of the parties. The letters make it clear that Busch and the City had made an agreement concerning landscaping, but parol evidence was properly admitted, since the letters did not make it clear exactly what was to be landscaped. An ambiguous contract is one which is obscure in its meaning because one or more expressions are indefinite, or because they have a double meaning. Amoco Production v. Stauffer Chemical, Wyo., 612 P.2d 463 (1980). If the meaning of a contract provision, in this case the agreement concerning landscaping, is ambiguous or not readily apparent, resort may be had to competent evidence of extraneous circumstances tending to explain the ambiguity and illustrate the intention of the parties at the time the provision was adopted, as long as the evidence does not contradict, alter, add to, or vary the plain terms of the provision. Goodman v. Kelly, Wyo., 390 P.2d 244 (1964).
Here, we agree with the trial court on the question of law that an ambiguity did exist, and that parol evidence was therefore admissible. In such case, interpretation becomes a mixed question of law and fact. The question of whether an ambiguity existed is one of law. Amoco Production v. Stauffer Chemical, supra. The question of intent becomes one of fact. As to the question of fact concerning intent, on appeal we must accept the trier's finding of fact as long as there exists a rational basis in the evidence for the conclusion. Goodwin v. Upper Crust of Wyoming, Inc., Wyo., 624 P.2d 1192 (1981).
In giving effect to the intent of the parties, common sense and good faith are the leading characteristics of contract construction. Marathon Oil Co. v. Kleppe, 407 F.Supp. 1301 (D.C.Wyo.), affirmed 556 F.2d 982 (10th Cir. 1975). Here, the extraneous circumstances showed that Busch was trying to sell a portion of the land to Kroh Brothers. It also showed that Busch was seeking an amended PUD, a planned unit development designation which allows a developer to have mixed uses of land on a single parcel, from the Commission so that Busch could construct two buildings on the LaBelle's parking site. Common sense tells us it apparently told the trial court as finder of fact, that Busch, since it was the party who applied for the revised PUD and stood to benefit from it, agreed to do whatever landscaping the City said it should do. Indeed, the City did approve the placement of two buildings in the parking area. It performed its side of the contract, and reasonably expects that Busch will do the same.
The trial court also had Busch's admission that it agreed to landscape the berm area. In response to questioning at trial, Barber testified:
Plaintiff's Exhibit 9, a letter from Barber to Bonds on November 21, 1979, concerned the extent of landscaping requirements. Mr. Barber was questioned about the letter and the landscaping requirements:
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