Strang Telecasting, Inc. v. Ernst

• Decision Date: 09 May 1980
• Docket Number: KWRB-T,A,No. 5225,5225
• Citation: 610 P.2d 1011
• Parties: STRANG TELECASTING, INC., a corporation, Appellant (Plaintiff below), v. Joseph P. ERNST, Mildred V. Ernst, and Chief Washakie TV, a Wyoming co-partnership, also known asppellees (Defendants below).
• Court: Wyoming Supreme Court

Page 1011

610 P.2d 1011

STRANG TELECASTING, INC., a corporation, Appellant (Plaintiff below), v. Joseph P. ERNST, Mildred V. Ernst, and Chief Washakie TV, a Wyoming co-partnership, also known as KWRB-TV, Appellees (Defendants below).

No. 5225.

Supreme Court of Wyoming.

May 9, 1980.

John Martin and John R. Vincent of Hettinger & Leedy, Riverton, for appellant.

Elmer J. Scott of Scott, Shelledy & Berryman, Worland, and Ruth Clare Yonkee, Thermopolis, for appellees.

Before RAPER, C. J., and McCLINTOCK, THOMAS, ROSE and ROONEY, JJ.

ROSE, Justice.

This is an appeal from a summary judgment denying a would-be buyer's suit for specific performance of a contract to sell a television station. The contract was conditioned upon the Federal Communications Commission approving the transfer of the license within one year from the date when the application for transfer was filed. This approval was not forthcoming within the one year contemplated by the contract. However, under the appellant-plaintiff-buyer's version of the facts which we must accept as true for the purposes of examining the summary judgment adverse to the appellant FCC approval would have been forthcoming within a month of the one-year deadline. The television-station owners, Joseph and Mildred Ernst, defendants-appellees, informed the appellant, Strang Telecasting, Inc., that they considered the contract for sale of the station terminated immediately after the one-year deadline for FCC approval expired. The principal issue for resolution is whether the district court was justified in awarding summary judgment holding that the sellers had the right to promptly terminate the sale agreement upon the passage of the above-discussed deadline.

We will affirm.

FACTS RELATED TO THE PRINCIPAL ISSUE

The contract is ungrammatical and difficult to interpret. Pertinent portions are:

"3. Consent of Commission:

"a). Performance of the obligations of the parties under this agreement and the Closing of the transactions provided for herein are and shall be subject to the occurrence of the express condition precedent that the consent of the Federal Communications Commission ("Commission") shall have been granted to the assignment of the broadcast license of Station to Buyer and such consent shall have become a final non-appealable order.

"b). The parties agree to cooperate with each other in seeking the Commission's consent.

"11. Termination:

"a) This Agreement may be terminated by Seller or Buyer prior to the Closing, upon ten (10) days written notice to the other, if any of the representations or warranties of the other party are not performed during the period or at or before the time specified herein for such performance and such inaccuracy of a representation or warranty, failure of performance or an obligation or non-satisfaction of a condition if:

"I) such breach is capable of being cured and has not been cured within thirty (30) days after written demand therefore (sic), or

"II) has not been waived in writing in accordance with subparagraph 15c) hereof by the party seeking to terminate this Agreement.

"b) This Agreement shall be terminated without notice, if consent to the assignment of license of Station to buyer is denied or refused renewal by final order of the Commission.

"c) Within one (1) year after filing of applications pursuant to paragraph 3, the Commission's consent shall not have been granted to the assignment of license of Station to Buyer."

Paragraph 15 of the contract is entitled "Miscellaneous," and subparagraph "c)" states:

"Any notice, report, demand, waiver or consent required or permitted hereunder shall be in writing and shall be given by prepaid registered or certified mail, with return receipt requested, address as follows: . . ."

The contract was dated November 8, 1977. An application for transfer of the broadcast license was mailed to the FCC on January 27, 1978 and acknowledged on February 7, 1978. On February 8, 1979 (at which time FCC approval had not been granted), appellees notified the appellant that the contract was terminated.

Appellant's counsel presented the district court with an affidavit detailing his extensive experience as an employee of and practitioner before the FCC and offering his opinion that FCC approval would have been forthcoming within 30 days of the February 7, 1979, deadline had the contract not been terminated.

In his order announcing the summary judgment, the district court judge relied on the language of the contract, as well as a letter interpretation placed on the contract by Everett Hicks, appellant's vice president, in his communication to Mildred Ernst. Before reproducing pertinent portions of the letter, a few explanatory comments are in order. FCC approval of the transfer had been delayed in whole or in part because a third party, Associated Christian Broadcasters, had originally opposed the transfer. The parties had discussed this delay at an earlier meeting, apparently under the impression that the contract deadline for approval was one year after the signing of the contract. The letter recites an agreement with the Associated Christian Broadcasters under which their opposition to the transfer is to be dropped. It then continues:

". . . Consequently, it now should only be a matter of processing time in the Commission.

"In this regard, Mildred, since my return to New York, I have of course been rereading the existing sales contract on "When Stuart Strang and I were in Thermopolis on our recent trip, you were kind enough to indicate that so long as Strang brought all its filings up-to-date and it became simply a question of time before the Commission acted, you would be prepared to give us a reasonable extension beyond the supposed November 8th deadline. I sincerely trust, therefore, that the actual cancellation date which I have come up with by a literal interpretation of the contract terms, will be in conformity with your own thinking regarding a reasonable time extension. . . ." (Emphasis supplied)

KWRB with a good deal of care. It appears to me that your option to cancel does not take place one year from the date of signing the sales contract but rather one year from the date of filing the joint license transfer application with the Commission. To the best of my knowledge, this would make the option date at some time in late January . . .

DISCUSSION OF THE PRINCIPAL ISSUE

It would appear that it is impossible to derive an absolutely literal-interpretation solution of the controversy from the contract language. Paragraph "11 c)" is not a sentence and doesn't tell us what is supposed to happen if FCC approval is not obtained within a year.

Paragraph "11 a)" is also opaque. In attempting to analyze it, we come up with the following reading, which also is not too helpful:

"This Agreement may be terminated by Seller . . . if any of the representations or warranties . . . are not performed . . . and such inaccuracy of a representation or warranty, failure of performance or an obligation or non-satisfaction of a condition (the remaining part of this thought is not present) if:

"I) such breach is capable of being cured and has not been cured within thirty (30) days after written demand therefore (sic), or

"II) has not been waived in writing. . . ." (Emphasis supplied.)

Do subparagraphs I and II refer only to breaches or do they also refer to failure of conditions? If they refer to conditions, what is the purpose of the potential requirement of subparagraph I of notice of the breach or non-occurrence of a condition if subparagraph I is alternative to subparagraph II which allows a termination so long as no written waiver has been obtained with respect to the breach or non-occurrence of a condition? Is subparagraph II intended to apply only to breaches or non-occurrences of conditions which, in contrast to those in subparagraph I, cannot be cured within 30 days? This latter query is significant because appellant claims it could have brought about the occurrence of the condition (that the FCC approve the transfer of the broadcast license) within 30 days of the time limit mentioned in subparagraph "11 c)."

We are unpersuaded that the language of the contract clearly and unambiguously gave the sellers the right to terminate the contract on February 8, 1979, without providing the buyer an opportunity to cure within 30 days the non-occurrence of the condition that the FCC approve the transfer of license. However, we are also of the opinion that the contract may be reasonably interpreted to justify the February 8, 1979, termination without opportunity to cure.

It is well-settled law that where the terms of an instrument are plain and unambiguous, its meaning is to be deduced from the language of the instrument alone; but where the language is ambiguous, the intent of the parties may be searched out by resort to extrinsic evidence. E. g., Mauch v. Ballou, Wyo., 499 P.2d 591, 593-594 (1972). Appellant argues that this necessary resort to extrinsic evidence involves factual issues not properly resolved in a motion for summary judgment.

In interpreting an ambiguous instrument, the intent of the parties is material extrinsic evidence. Mauch, supra. If Moreover, in reviewing an appeal from a summary judgment, the reviewing court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in the record. Weaver, supra.

there is a material factual dispute, summary judgment is inappropriate. E. g., Weaver v. Blue Cross-Blue Shield of Wyoming, Wyo., 609 P.2d 984 (1980). (Released for publication 3/28/1980).

But, are we presented with a material factual dispute in this case?

In a recent appeal from a summary judgment, we pointed out that evidence in favor of a contention fatal to the cause of action will suffice to defeat the case on summary judgment if such evidence is not disputed by any...