Hennen v. Omega Enterprises, Inc.
| Decision Date | 19 April 1994 |
| Docket Number | No. 93-509,93-509 |
| Citation | 264 Mont. 505,872 P.2d 797 |
| Parties | C. James HENNEN, d/b/a Montana Jim's Casino, Plaintiff and Appellant, v. OMEGA ENTERPRISES, INC., and Sumfun, Ltd., Defendants and Respondents. |
| Court | Montana Supreme Court |
J. Michael Young and Steven T. Potts, Jardine, Stephenson, Blewett & Weaver, P.C., Great Falls, for plaintiff and appellant.
James R. Walsh and Gregory G. Smith, Smith, Walsh, Clarke & Gregoire, Great Falls, for defendants and respondents.
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 parties' 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 Hennen's casino. Omega opposed summary judgment by stating that the contract's provisions were ambiguous and in need of judicial interpretation. Omega further moved to dismiss Hennen's 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.
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 1(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 (). 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 Procedure, which involves the merits, or necessarily affects the judgment, except a decision or order from which an appeal might have been taken.
Hennen's motion 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.
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 parol evidence is necessary to resolve contractual ambiguities. As affirmative defenses, Omega argues that Hennen contracted fraudulently and...
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...this Court with jurisdiction over both matters. M.R.App. P. 2(a). ¶ 25 We faced a similar situation in Hennen v. Omega Enterprises, Inc., 264 Mont. 505, 506, 872 P.2d 797, 798-99 (1994), where the plaintiff appealed an adverse ruling on his request for declaratory and injunctive relief. The......
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...pleadings, but must set forth specific facts showing that there is a genuine issue for the trial court." Hennen v. Omega Enterprises, Inc. (1994), 264 Mont. 505, 508, 872 P.2d 797, 799. In reviewing conclusions of law, we will determine whether the district court correctly interpreted the l......
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