Parman v. Petricciani

• Decision Date: 23 June 1954
• Docket Number: No. 3770,3770
• Citation: 70 Nev. 427,272 P.2d 492
• Parties: PARMAN v. PETRICCIANI et al.
• Court: Nevada Supreme Court

Page 492

272 P.2d 492

70 Nev. 427

PARMAN v. PETRICCIANI et al.

No. 3770.

Supreme Court of Nevada.

June 23, 1954.

Griswold, Vargas & Bartlett, John S. Halley, Reno, for appellant.

John S. Sinai, John W. Coulman, David P. Sinai, Reno, for respondents.

Guild, Busey & Guild, Reno, for intervenor-respondent. MERRILL, Justice.

This is an action brought by appellant seeking a declaratory judgment determining the rights of the parties under a lease and declaring that the lease is valid, subsisting and enforceable. Defendants' motion for summary judgment was granted by the trial court and the action dismissed. From that judgment plaintiff has taken this appeal. We shall refer to the parties by name.

On October 17, 1951 the Petriccianis as lessors entered into a lease of certain premises in the city of Reno. Three persons were named as lessees: appellant Parman, one Pechart and one Kessel. The term of the lease was ten years. The total rental was specified as $528,012. It was expressly provided that the premises should be used 'for the sole purpose of conducting therein and thereon a general gaming and bar business.' Paragraph 27 of the lease provided in part: 'In the event the lessees, or either of them, cannot obtain the requisite licenses to conduct a gaming business on the premises * * * from the proper licensing authorities in the State of Nevada, County of Washoe and City of Reno, then this lease shall become null and void and of no further force and effect as herein set forth and Lessors herein shall have the right to proceed to lease and lease said property to other parties or do anything they desire with said premises without any claim of damage or injury on the part of the Lessees against the Lessors * * *.'

Pechart and Kessel were unable to secure licenses from the state authorities. On May 29, 1952 while action on Parman's application for license was still pending, he was notified by the Petriccianis that they had canceled and annulled the lease. Parman contends that this action was wrongful.

The trial court having acted by summary judgment, the essential question is whether genuine issues of fact were created by the pleadings and proof offered. Rule 56(c) N.R.C.P. In determining this question we shall accept as true the allegations and affirmations favorable to the position of the plaintiff. Smith v. Hamilton, 70 Nev. ----, 265 P.2d 214. Parman contends that in two respects genuine issues have been created.

First: he contends that paragraph 27 as quoted is ambiguous since it is susceptible of a construction other than that which the Petriccianis and the trial court have placed upon it; that since it is ambiguous, it construction becomes a question of intent, a question of fact for determination upon trial; citing Walsh v. Walsh, 18 Cal.2d 439, 116 P.2d 62. The validity of this contention would appear to depend upon whether the paragraph is reasonably subject to the second construction.

The construction given by the Petriccianis and accepted by the trial court was that if any one of the three lessees was unable to secure the necessary licenses, the lease was thereby rendered void. The construction contended for by Parman is that if any one of the three lessees could obtain a license, the lease would continue operative and in full force for his benefit.

All parties appear to recognize that one may not serve as an active or interested party to a gaming operation in this state unless properly licensed; that no one of the original lessees under the lease in question could, therefore, continue as lessee unless he was properly licensed. Parman's construction, then, is equivalent to saying that by the paragraph in question the Petriccianis have stated that they are as willing to continue the lease to any one of their three lessees, individually and solely, as they are to the three combined. Such construction is, we feel, not only contrary to the apparent intent of the paragraph as expressed, but, under the circumstances surrounding the lease, is unrealistic to the point of being wholly unreasonable.

The lease, as we have noted, specified rental of over a half million dollars. Parman, in a deposition which forms a part of the record on motion for summary judgment, testified that it had been agreed between the three lessees that he was not to put up any money in the operation of the business; that he personally was financially unable to perform the terms of the lease; that the down payment of $10,000 provided by the terms of the lease had been paid by the other lessees. Clearly the three lessees in combination possessed attributes essential to performance which would not be possessed by Parman alone. To accept as reasonable the construction for which Parman contends would in this case be to impute to the Petriccianis a blithe lack of concern with the financial responsibility of their lessee. The existence of such an unbusiness-like attitude, as we shall note, is wholly inconsistent with the facts.

Parman contends that his construction of the paragraph is borne out by conduct of Petricciani subsequent to execution of the lease. We find no merit in this contention. The actions of Petricciani upon which Parman relies most heavily are discussed later in this opinion in our consideration of his second principal contention. In our view they clearly support the construction adopted by the trial court and in that respect render wholly insignificant other minor inconsistencies of conduct cited by Parman which we do not, accordingly, deem it necessary to discuss.

The paragraph in question not being reasonably subject to the construction for which Parman contends, cannot be said to be ambiguous in that regard. The agreement speaks for itself and the true intent of the contracting parties cannot be said to constitute a genuine issue of fact.

Second: Parman contends that a genuine issue has been raised as to whether the Petriccianis have waived their rights to assert forfeiture of the lease and by their conduct are estopped to deny that it continues to run to Parman as sole lessee. He asserts that he relied to his detriment upon actions of the Petriccianis affirming the lease notwithstanding failure of Pechart and Kessel to secure licenses and upon representations that his rights under the lease were to continue. The Petriccianis contend that if representations were made, they were not to the effect that the old lease would continue with Parman as sole lessee, but rather were to the effect that a new lease would be granted with new parties substituted for Pechart and Kessel.

This distinction, considering the nature of this action, is a vital one. This is not a suit for specific performance to compel the giving of a promised new lease. It is an action to establish that the executed lease continues in effect with Parman as sole lessee. If the representations did in fact relate to a new lease, the court could not properly concern itself with them, nor with the question whether, under any conceivable state of facts, such representations were wrongful or actionable or unconscionable. With this distinction in mind we turn to the representations upon which Parman relies as shown by his own testimony upon deposition. Did these representations relate to the giving of a new lease with new parties as lessees or to the continuance of the old lease with Parman as sole lessee?

Parman testified as follows:

'Q. Did you ever discuss the matter of a lease with Mr. Petricciani at any time? * * * I am talking about the year 1953. A. I discussed getting Mr. Magee on the lease. * * *

'Q. What did you talk to him about? A. To try to get Mr. Magee on the lease if Mr. Kessel and Pechart dropped out of the picture. * * *

'Q. That was in the event that Pechart and Kessel got off the lease would he take Mr. Magee in as a party to the...