Scrimgeour v. Magazine, 13657.

• Decision Date: 31 March 1981
• Docket Number: No. 13657.,13657.
• Parties: Robert SCRIMGEOUR et al., Appellants, v. Sheldon MAGAZINE et al., Appellees.
• Court: D.C. Court of Appeals

Page 187

429 A.2d 187

Robert SCRIMGEOUR et al., Appellants, v. Sheldon MAGAZINE et al., Appellees.

No. 13657.

District of Columbia Court of Appeals.

Argued May 3, 1979.

Decided March 31, 1981.

Lester G. Fant, III, Washington, D.C., with whom Andrew D. Pike, Washington, D.C., was on the briefs, for appellants.

David M. Dorsen, Washington, D.C., for appellees.

Before NEBEKER and MACK, Associate Judges, and GALLAGHER,^* Associate Judge, Retired.

MACK, Associate Judge:

This appeal centers on a limited agreement entered into by appellants' predecessor in interest as a limited partner and by appellees as general partners. Following a disagreement regarding appellants' right to share in the proceeds from the sale of the partnership's asset, the appellees filed a complaint for a declaratory judgment. Both parties moved for summary judgment. The trial court granted a summary judgment to appellees. We affirm.

Appellants argue in this court that the trial judge erred in granting summary judgment for appellees in the face of the language of the partnership agreement and in view of appellees' fraudulent conduct in procuring that agreement.

The M & M Partnership was formed for the purpose of leasing a parcel of land and constructing a building thereon for operation as an investment for income producing purposes. The asset of the partnership was the leasehold interest and improvements — an asset which a prospective purchaser sought to acquire in 1977. Appellees are general partners in the M & M Partnership. Appellants, as trustees, are the successors to the interest of the limited partner who, as lessor, leased the parcel of land to M & M. Appellants, however, are also general partners of Scrimgeour Associates who, as successors to the interest of the lessor, ultimately purchased the leasehold interest and improvements owned by M & M at the same terms and conditions offered by the 1977 prospective purchaser.

Appellants demanded ten per cent of the gain realized from the sale. Appellees refused claiming that, pursuant to Paragraph VII(B) of the Partnership Agreement, appellants were not entitled to share. Funds were placed in an escrow account and this action followed.

A motion for summary judgment shall be granted only when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Super.Ct.Civ.R. 56(c). When reviewing the trial court's order granting summary judgment, this court makes an independent review of the record. Dewey v. Clark, 86 U.S.App.D.C. 137, 180 F.2d 766 (1950).

Where as here a contract contains an integration clause (i.e., providing that the contract sets forth all promises, agreements, conditions and understandings between the parties), the "written language embodying the terms of an agreement will govern the rights and liabilities of the parties . . . unless the written language is not susceptible of a clear and definite understanding, or unless there is fraud, duress or mutual mistake." Slice v. Carozza Properties, Inc., 215 Md. 357, 371, 137 A.2d 687, 693 (1958) cited in Minmar Builders, Inc. v. Beltway Excavators, Inc., D.C.App., 246 A.2d 784, 786 (1968).

Appellants, urging in this court fraudulent conduct in the procurement of the contract, point solely to the fact that appellees, prior to executing the contract did not contradict appellants' written interpretation of the agreement. The fact is, however, that fraud was not urged in the trial court. Appellants' answer to the complaint for declaratory judgment fails to allege fraud affirmatively. Super.Ct.Civ.R. 8(c).¹ Further, appellants Opposition to Plaintiffs' Motion for Summary Judgment and Defendants' Cross-Motion for Summary Judgment states that there are no genuine material facts at issue.² Thus, for purposes of this appeal, appellants have waived any allegation of fraud. Whipps v. Kling Bros. & Co., 182 Okl. 382, 78 P.2d 291 (Okl.1938).

In reviewing the granting of summary judgment to appellees we must first determine whether the terms "profit" and "in effect" as used in Paragraph VII of the agreement are ambiguous. If either term is ambiguous, an issue of material fact exists which precludes summary judgment. "Contracts are not rendered ambiguous by the mere fact that the parties do not agree upon their proper construction." Friedman v. Thomas J. Fisher & Co., D.C.Mun.App., 88 A.2d 321, 323 (1952). We have reviewed the terms as used in the agreement and find no ambiguity.

In appellants' Memorandum of Points and Authorities in Opposition to Plaintiffs' Motion for Summary Judgment and In Support of Defendants' Cross Motion for Summary Judgment, it is alleged that Paragraphs VI and VII(A) taken together establish that appellants have a ten per cent interest in the partnership and "unless limited by Paragraph VII. B. . . . are entitled to a ten percent share in all operating profits of the Partnership as well as the gain realized on the sale of the Partnership Property." Id. at 3. (Emphasis added.)

Paragraph VI entitled "Capital and Partnership Interest" sets out the percentage of interest of the partners.

Paragraph VII is entitled "Profits and Losses". In relevant part it states:

VII Profits and Losses.

A. The profits of the partnership, except as limited by Paragraph B of this Article VII, shall be shared among all of the partners in proportion to the percentages of their interests in the partnership. . . . The net earnings of the partnership, except as hereinafter limited, . . . shall be distributed...