Lamar v. Farmers Co-Op Oil Co.

• Decision Date: 11 September 2009
• Docket Number: No. S-08-0131.,S-08-0131.
• Citation: 2009 WY 112,215 P.3d 296
• Parties: LAMAR OUTDOOR ADVERTISING, Appellant (Plaintiff), v. FARMERS CO-OP OIL COMPANY OF SHERIDAN, Wyoming and Maverik Country Stores, Appellees (Defendants).
• Court: Wyoming Supreme Court

215 P.3d 296

2009 WY 112

LAMAR OUTDOOR ADVERTISING, Appellant (Plaintiff), v. FARMERS CO-OP OIL COMPANY OF SHERIDAN, Wyoming and Maverik Country Stores, Appellees (Defendants).

No. S-08-0131.

Supreme Court of Wyoming.

September 11, 2009.

Representing Appellant: Timothy M. Stubson of Brown, Drew & Massey, LLP, Casper, Wyoming.

Representing Appellee Farmers Co-Op Oil Company of Sheridan, Wyoming: Clint A. Langer of Davis & Cannon, LLP, Sheridan, Wyoming.

Representing Appellee Maverik Country Stores: Steven T. Waterman of Ray Quinney & Nebeker P.C., Salt Lake City, Utah.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, BURKE, JJ.

GOLDEN, Justice.

[¶ 1] During litigation among Lamar Outdoor Advertising (Lamar), Farmers Co-Op Oil Company of Sheridan, Wyoming (Farmers), and Maverik Country Stores (Maverik)¹ concerning Lamar's claim that the other parties had not honored Lamar's lease-based right of first refusal that provided Lamar the opportunity to purchase certain property upon which Lamar maintained an advertising sign, the parties executed a settlement agreement, the meaning of one provision of which is now before us in this appeal. Lamar appeals the district court's summary judgment order that under the terms of the parties' unambiguous settlement agreement the City of Sheridan had failed to act on Lamar's variance application within eight weeks from the date the variance application was submitted and, consequently, the parties remained bound by the terms of their settlement agreement. For the reasons set forth below, we affirm the district court's order.

ISSUES

[¶ 2] Lamar states these issues:

1. Whether the district court erred by misinterpreting the plain and unambiguous language of a conditional settlement agreement between the parties to this litigation.

2. Whether the language in the parties' agreement was ambiguous and requires additional factual findings regarding the circumstances surrounding the agreement.

Farmers and Maverik jointly state this issue:

Whether the trial court properly enforced the settlement agreement of the parties, dismissing the case and ordering Lamar to remove its billboard sign?

[¶ 3] In Lamar's reply brief, it states these new issues were raised in its opponents' brief:

1. Whether the governing standard of review requires this Court to accept all allegations of the prevailing party below as true.

2. Whether reading the terms of the settlement agreement with their plain meaning renders portions of the agreement meaningless.

3. Whether the record supports the conclusion that an affidavit of notice was not required in order to consider the variance request.

FACTS

[¶ 4] Lamar initiated litigation to enforce a right of first refusal contained in a lease agreement for an outdoor advertising sign, that right requiring the lessor-owner of the property on which the sign was located to provide lessee Lamar with notice of a proposed sale of the leased property and the opportunity to purchase the leased property. Following protracted negotiations, the parties executed a settlement agreement which contains the provision which is the subject of this appeal. In the settlement agreement, the parties agreed to cooperate and submit an application for a variance to the City of Sheridan which, if granted, would permit a new sign location near the sign in question and permit a relocation of the sign. In addressing the timeframe for the submission of the variance application and the City's action on that variance application, the parties included in their settlement agreement the following paragraph five, the contested meaning of which now drives this appeal:

The parties agree that the City of Sheridan shall have eight weeks from the date that the variance application contemplated in Paragraph 4 is submitted with all accompanying documentation required by the City of Sheridan. If the City of Sheridan denies the Variance application the agreements, obligations, releases and all other commitments contained in this agreement are null and void. If the City of Sheridan approves the application or fails to act on the application within the eight week period provided for herein the parties will be bound to the agreement contained herein. If the City of Sheridan fails to act upon the application because of any action or inaction by Lamar the parties will be nonetheless bound by the terms of this agreement to the extent permitted by law.

(Emphasis added.)

[¶ 5] Lamar's counsel submitted the variance application to the City by letter dated Wednesday, August 2, 2006. The passage of eight weeks would have fallen on or about Thursday, September 28, 2006. On Wednesday, September 27, 2006, Lamar submitted to the City an affidavit executed by its agent, William A. Mentock, which stated:

AFFIDAVIT OF POSTING OF PUBLIC NOTICE SIGN, AND NOTIFICATION BY U.S. MAIL TO CONTIGUOUS PROPERTY OWNERS

STATE OF WYOMING COUNTY OF SHERIDAN

BEFORE ME, the undersigned authority, personally appeared, who, after having first been duly sworn and put upon oath, says as follows:

1. That he is the agent (owner, agent for owner, attorney in fact for owner, etc.) of the property identified in the application for VAR 06-09 at 1251 First Ave E., to be heard before the Board of Adjustment at a public hearing to be held on October 12 2006 and as such, is authorized to execute and make this Affidavit and is familiar with the matters set forth herein, and they are true to the best of his knowledge, information and belief.

2. That the Affiant has caused the mailing of the required letter of notification to property owners within 140 feet of the project boundary by U.S. Mail, on or before the 28th day of September, 2006, and attaches hereto, as part of and incorporated herein, a complete list of the names and addresses of the persons entitled to notice.

3. That Affiant is aware of and understands that failure to execute the required public notice may cause the above identified hearing to be postponed and rescheduled only upon compliance with the public notice requirements.

[¶ 6] Farmers and Maverik assert, and Lamar does not disagree, that the City denied Lamar's variance application on October 12, 2006.

[¶ 7] On February 7, 2007, Farmers and Maverik filed their joint motion to dismiss with prejudice Lamar's litigation to enforce its lease-based right of first refusal, asserting that the City had failed to act on Lamar's variance application by October 2, 2006, which was eight weeks past August 2, 2006, the date on which Lamar had submitted it and, therefore, by operation of paragraph five of the settlement agreement, that agreement had become fully binding on the parties. In support of their joint motion, Farmers and Maverik attached a copy of the parties' settlement agreement and a copy of the letter from Lamar's counsel to the City of Sheridan, dated August 2, 2006, which stated that the variance application was attached. We note that the referenced variance application is not in this record; however, Lamar agrees that it submitted the variance application on that date.

[¶ 8] Lamar filed its response to Farmers and Maverik's joint motion to dismiss on February 23, 2007. In support of this response, Lamar attached, as Exhibit A, a copy of the affidavit of its agent, William A. Mentock, set out earlier in this opinion. Lamar's response argued that (1) the critical language of paragraph five of the settlement agreement was the City "shall have eight weeks from the date the Variance Application ... is submitted with all accompanying documentation required by the City ...." (emphasis in original); (2) the variance application submitted by Lamar on August 2, 2006, did not include an affidavit of posting of public notice sign which document, according to follow-up meetings with the City, the City required in order to consider the variance application; (3) Lamar submitted the required affidavit document to the City on September 27, 2006; (4) the eight-week time frame stated in paragraph five of the settlement agreement began running on September 27, 2006; (5) the City's action denying the variance application on October 12, 2006, was within the eight-week time frame which started running on September 27, 2006; and, consequently, (6) the settlement agreement is null and void under paragraph five of that agreement because the City denied the variance application within that eight-week time frame.

[¶ 9] The district court held a hearing on Farmers and Maverik's joint motion to dismiss with prejudice and Lamar's response on February 27, 2008. In its brief, Lamar informs this Court that the district court without notice converted the joint motion to dismiss to a summary judgment motion by the court's consideration of material outside the pleadings; however, Lamar did not object to conversion and does not raise that as an issue here. Cranston v. Weston Cty. Weed & Pest Bd., 826 P.2d 251, 254 (Wyo.1992). Neither party designated a transcript of the motion hearing for our appellate record. On April 28, 2008, the district court entered its order granting summary judgment to Farmers and Maverik based upon the parties' evidentiary submissions, namely, the parties' settlement agreement, Lamar's counsel's letter dated August 2, 2006, and Lamar's Mentock affidavit, and based upon the parties' acknowledgement that the City of Sheridan acted on October 12, 2006, to deny Lamar's variance application. In relevant part, the district court's order stated:

1. Applying the summary judgment standard of review, the Court finds that there are no questions of material fact.

2. The affidavit attached to Plaintiff's Response to Defendants' Joint Motion to Dismiss with Prejudice does not raise material questions of fact, particularly since the hearing occurred more than eight weeks after the variance application was submitted to the City and since the affidavit could not have been submitted with the variance application.

Lamar timely filed its...