Mary J. Baker Revoc. Trust v. Cenex Harvest, 04-333.
| Citation | 164 P.3d 851,2007 MT 159,338 Mont. 41 |
| Decision Date | 27 June 2007 |
| Docket Number | No. 04-333.,04-333. |
| Parties | The MARY J. BAKER REVOCABLE TRUST and Linda J. Ecklund, on behalf of themselves and all similarly situated persons and entities, Plaintiffs and Appellants, v. CENEX HARVEST STATES, COOPERATIVES, INC., and Front Range Pipeline, L.L.C., Defendants and Respondents. |
| Court | United States State Supreme Court of Montana |
For Appellant: Thomas E. Towe, Towe, Ball, Enright, Mackey & Sommerfield, PLLP, Billings, Montana.
For Respondent: John G. Crist, Crist Law Firm, David A. Veeder, Billings, Montana.
¶ 1 The Mary J. Baker Revocable Trust and Linda J. Eklund (individually referred to as "Baker Trust" and "Eklund," respectively, and collectively referred to as "the Landowners") appeal the judgment of the District Court for the Fourteenth Judicial District, Wheatland County, denying the Landowners' motion for partial summary judgment and motion for class certification and granting the motion for summary judgment filed by Cenex Harvest States Cooperatives, Inc., and Front Range Pipeline, L.L.C. (collectively referred to as "Cenex").1 We affirm.
¶ 2 The Landowners provide the following "STATEMENT OF ISSUES PRESENTED FOR REVIEW" at the outset of their opening brief:
1. Whether the district court erred in granting Appellee-Defendants' Motion for Summary Judgment?
2. Whether the district court erred in denying Appellants-Plaintiffs' Motion for Summary Judgment?
3. Whether the district court erred in ignoring and refusing to apply § 1-4-102, MCA, in interpreting the granting language in the easements at issue?
4. Whether the district court erred in ignoring the principle that an instrument should be construed against the drafter and refusing to apply precedent established in a strikingly similar case in Mississippi?
The argument section of the Landowners' brief, however, does not conform to this statement of the issues. Rather, the Landowners' two issue headings are as follows:
A. The District Court Failed to Consider the Circumstances Surrounding the Procurement of the Easements in Violation of § 1-4-102, MCA. The District Court Also Failed to Interpret the Easement Granting Language in the Light Most Favorable to the Landowners.
B. In the Alternative, the Easement Granting Language is Ambiguous, Thereby Requiring Consideration of the Surrounding Circumstances. The Landowners' Unrefuted Summary Judgment Evidence Supports the Entry of Summary Judgment in Their Favor or, in the Further Alternative, Consideration by a Jury.
The Landowners' "alternative" arguments under Issue "B" do not appear in their opening statement of the issues presented for review. Furthermore, within the discussion under Issue "A" the Landowners present an argument that does not match any of their issue statements — namely, that the District Court erred in construing a term in the easement granting language contrary to the dictionary definition of that term.
¶ 3 Given this disconnect between the issues as articulated at the outset of the Landowners' opening brief and the issues as articulated and argued in the argument section of the brief, this Court is in the position of having to divine precisely what issues the Landowners are presenting to this Court. The Rules of Appellate Procedure, however, place the responsibility of matching arguments with issue statements on the Landowners, not this Court. See M.R.App. P. 23(a)(2) (); M.R.App. P. 23(a)(4) (). Accordingly, we will address the merits of the Landowners' actual arguments without regard to their uncoordinated issue statements.
¶ 4 In their first argument, the Landowners agree with the District Court that the language of the right-of-way agreements by which the Landowners granted easements across their properties to Cenex is unambiguous, but they disagree with the court's conclusion that Cenex has not exceeded the scope of those easements as defined in the right-of-way agreements. The Landowners contend (1) that the District Court erroneously construed the term "together with" as that term is used in the granting language; (2) that the District Court erred by failing to interpret the granting language in the light most favorable to the Landowners; and (3) that the District Court erred by refusing to consider the circumstances under which the easements were granted. As an alternative argument, the Landowners contend that the granting language is ambiguous, thus (1) requiring consideration of the circumstances under which the easements were granted or (2) creating a genuine issue of material fact and thereby precluding summary judgment for either party.
¶ 5 Accordingly, having studied the Landowners' arguments, we perceive the following five issues on this appeal:
1. Did the District Court erroneously construe the term "together with" as that term is used in the unambiguous granting language?
2. Did the District Court err by failing to interpret the unambiguous granting language in the light most favorable to the Landowners?
3. Did the District Court err by refusing to consider the circumstances under which the easements were granted?
4. Did the District Court err in determining that the granting language is unambiguous?
5. Did the District Court err in determining that there is no genuine issue as to any material fact?
¶ 6 The Front Range Pipeline is a system of crude oil pipelines that extends approximately 320 miles from the United States/Canadian border to Laurel, Montana, by way of Santa Rita, Montana. The stretch from Santa Rita to Laurel consists of one 16-inch pipeline and a 36-strand fiber optic cable. For most of this distance, the fiber optic cable is buried in the same trench as the pipeline. The dispute in this case concerns Cenex's use of the fiber optic cable.
¶ 7 Cenex began acquiring easements for the pipeline and cable in 1994. This process continued into 1996 and involved approximately 450 parcels of land on the route between Santa Rita and Laurel. Cenex entered into a right-of-way agreement with Eklund on November 12, 1994, and with Baker Trust on February 13, 1995. Both agreements, which had been prepared by Cenex, contained the following granting language:
[Grantors] do hereby grant, sell and convey unto [Cenex] . . . its successors and assigns, hereinafter referred to as Grantee, the right to construct, maintain, inspect, operate, protect, repair, replace, change the size of or remove a pipeline or pipelines or other appurtenances, for the transportation of oil, liquids and/or gases and the products thereof, together with a buried fiber optic communications cable, in, on, under or upon and along a strip of land Fifty Feet (50 ft.) in width to be selected by Grantee on, in, over and through the following described lands. . . .
The agreements further provided that "[t]he rights herein granted may be assigned in whole or in part" and that "[t]he terms, conditions and provisions of this agreement shall extend to and be binding upon the heirs, executors, administrators, personal representatives, successors and assigns of the parties hereto."
¶ 8 During this same period, Cenex and TRI Touch America, Inc. ("TRI") negotiated a Fiber Optic Agreement. Pursuant to this agreement (dated June 26, 1995), TRI agreed to install the fiber optic cable in the trench opened by Cenex for the pipeline and to maintain the cable, but the agreement specified that Cenex would own the cable. For its part, Cenex granted TRI an exclusive, indefeasible right to use 32 strands of the cable for an initial term of 25 years. The four remaining strands were specifically dedicated to the exclusive use of Cenex for the transmission of data, voice, and video communication along the pipeline.
¶ 9 Ultimately, the pipeline project was completed in late 1995, and the fiber optic cable became operational in mid 1996. Cenex assigned its rights, title, and interest in the pipeline and fiber optic cable to Front Range Pipeline, L.L.C., in September 1999.
¶ 10 The Landowners initiated the instant action on March 21, 2003. In essence, they alleged as follows: that the right-of-way agreements permitted Cenex to use the fiber optic cable only for purposes of operating and monitoring the pipeline; that Cenex had exceeded the scope of the easements by using and allowing a third party to use the cable for purposes other than operating and monitoring the pipeline; that Cenex had done so without the Landowners' authorization and without compensating the Landowners; that Cenex, thus, had surreptitiously created a valuable revenue-producing corporate asset; that Cenex had retained the revenues and profits generated by this asset; and that these wrongful acts and omissions amounted to an unlawful scheme to convert money derived from the trespass upon the Landowners' properties. The Landowners claimed breach of contract, trespass, conversion, breach of the implied covenant of good faith and fair dealing, civil conspiracy, and unjust enrichment, and they requested certification under M.R. Civ. P. 23 as a class consisting of "[a]ll persons and entities who own land over which fiber optic cable has been strung or laid in the Cenex Front Range Pipeline right-of-way."
¶ 11 Cenex filed an answer denying the allegations concerning the scope of the easements and the allegations of wrongdoing. Thereafter, the parties filed cross-motions for summary judgment.
¶ 12 The Landowners, in their summary judgment motion, asserted that the granting language in the right-of-way agreements "is crystal clear in its scope." Focusing on the words "together with," they argued that this term means "in union with" and that "[a]...
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