Williams v. Collins Communications, Inc.

• Decision Date: 10 June 1986
• Docket Number: No. 85-265,85-265
• Citation: 720 P.2d 880
• Parties: Maurice WILLIAMS, Appellant (Plaintiff), v. COLLINS COMMUNICATIONS, INC., a Wyoming corporation, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 880

720 P.2d 880

Maurice WILLIAMS, Appellant (Plaintiff), v. COLLINS COMMUNICATIONS, INC., a Wyoming corporation, Appellee (Defendant).

No. 85-265.

Supreme Court of Wyoming.

June 10, 1986.

Rehearing Denied June 29, 1986.

S. Thomas Throne and Thomas E. Campbell, Sheridan, for appellant.

David F. Palmerlee of Omohundro and Palmerlee, Buffalo, for appellee.

Before THOMAS, C.J., BROWN, CARDINE and URBIGKIT, JJ., and GUTHRIE, J., Retired.

URBIGKIT, Justice.

The parties assiduously pleaded and comprehensively litigated a contractual relationship involving radio tower facilities. Appellee, Collins Communications, Inc. (Collins), original defendant and counterclaimant, enjoyed trial success by entry of a favorable specific-performance decree against appellant Maurice Williams, from which decision this appeal was taken. The parties have spared no effort in reaching this stage in a demonstration of contractual disaffinity.

We will generally affirm, except to remand for an accounting under the contract for revenues received by each party between January, 1983, and the date of effectuation of the specific-performance decree.

Some time prior to 1976, by oral agreement, and then by written agreement dated July 1, 1976, Collins and Williams came to be jointly involved in the operation of radio communication towers on Warren Peak in northeast Wyoming. The Peak, topographically dominant in the area, involved a parcel of land originally acquired from Williams by condemnation for a government radar installation, later transferred to the United States Forest Service upon discontinued installation use, with the surrounding land remaining in the ownership of Williams. In 1975, Collins had obtained a special use permit for the construction of a radio tower on the Forest Service parcel.

By trial date, there were four towers on the Peak. The first, predating the written agreement, was the Forest Service tower; a second, designated the Materi tower, was located on the Williams property, and was expressly excluded from the agreement; the third, designated the middle tower, was located on Williams' property, apparently constructed by the parties before the 1976 written agreement, or at least operated jointly before that date. Construction of the fourth, the Williams tower, was completed by Williams in October, 1983.

The 1976 agreement effectuated a joint use of the properties for radio-tower utilization, retroactive to September 1, 1975 and expiring December 31, 1992, and provided for equal division of revenue and expenses, and

"COLLINS will operate all of the communications sites on Exhibits 'A' [Forest Service parcel] and 'B' [surrounding Williams' land], collect and administer all income received therefrom, make all arrangements and contacts for new customers to be placed on said communications sites, and COLLINS will have complete control over the development and expansion of said sites and will use their best efforts to fully develop said sites in the proper manner so as not to create excessive communications interference."

"COLLINS will account monthly to WILLIAMS with regard to all rental income received, costs and other expenses expended and will forward to WILLIAMS his proportionate share of said rental income as provided for herein. COLLINS will also furnish to WILLIAMS the identical data sheets as supplied to the U.S. Forest Service and will furnish WILLIAMS, upon request, with copies of invoices for all site rentals. In the event WILLIAMS shall receive any income from said communications sites, he will also make such accounting to COLLINS.

" 'It is understood and agreed that at such time as the communications equipment constructed or hereafter to be constructed upon said property has been paid for from the rental derived therefrom, that both COLLINS and WILLIAMS shall equally own said equipment as tenants in common.' "

" 'Except as to the service to Materi Exploration Company and Belle Fourche Pipe Line company, heretofore mentioned, neither COLLINS nor WILLIAMS shall construct, operate or maintain any communications system in competition to the communications system contemplated herein within 10 miles of the real property described in Exhibit "A" and Exhibit "B" attached hereto.' "

There was something less than total payment regularity for amounts due to Williams on the contract, although with the joint control of the market by a monopoly of locations on the Peak, the venture was mutually profitable.

In 1981, Motorola Communications and Electronics Inc. (Motorola), a competitor of Collins in radio communications systems, inquired of Collins about placing a community repeater on the facility. Communication ensued, but no real negotiations occurred.

In the Fall of 1982, Williams commenced construction of the Williams tower, and it was completed in the Fall of 1983, when he put Motorola and an associate, Crescent Communications, on the tower, acquired a few customers from Collins, and added some new business. The tower cost and expenses were $12,320, and revenues totaled $18,200. In January, 1983, Collins stopped paying Williams the pro-rata share under the contract, with a net revenue from that date to date of decree of $58,982, or $29,491, as the Williams distributable share.

In November, 1984, the litigative campaign was started by Williams, claiming for an accounting, payments with interest, and partnership dissolution and distribution. As its pleadings, with numerous defenses, Collins pleaded Williams' breach of contract by construction of the Williams tower, with a counterclaim for damages, requesting specific performance, and alleging a cause of action in libel.

Extended pretrial proceedings, including motions for summary judgment, led the case at trial commencement to accommodate two issues: claim of Williams for breach of contract by Collins, and counterclaim of Collins for breach by Williams.

At the commencement of the trial, pursuant to a motion in limine, but generally as a ruling on the case, the court determined that the contract was clear and unambiguous, and ruled that interpretative evidence for the written contract would not be admitted at trial.

A jury was empaneled, and at the close of Williams' evidence a directed verdict was granted against him and in favor of Collins, on the original complaint. Collins elected to proceed in specific performance rather than damages, and the parties then stipulated that the counterclaim would be tried by the court on that issue. Following trial, the court ruled for the defendant in granting specific performance on the written contract, but awarded no damages or accounting to either party for payments then accrued and unpaid under the contractual provisions.

The issues have been variously stated, not only in appellant's brief, but in prior presentations to the trial court, but are best detailed in sequential relationship to the proceedings as claimed error by:

(A) denying summary judgment for Williams on his complaint;

(B) determination that the contract was not ambiguous and consequently rejecting interpretative evidence from Williams;

(C) admission of objectionable hearsay evidence;

(D) entry of directed verdict against Williams on his complaint; and

(E) limitation of the scope of the final judgment as denying an accounting for the contractual proceeds.

A Denial of Williams' Motion for Summary Judgment

The trial court accurately found evidentiary conflicts in its initial denial of summary judgment. More than a reasonable doubt existed as to the nonexistence of a factual issue otherwise required for summary judgment. Cordova v. Gosar Wyo., 719 P.2d 625 (1986); Durdahl v. Bank of Casper Wyo., 712 P.2d 23 (1986).

Additionally, the subsequent entry of a directed verdict against Williams, after his case in chief was concluded, is rationally dispositive of any question as to his earlier right to favorable summary judgment. Failure to withstand a directed verdict is logically persuasive of the existence of an unfavorable status for earlier summary judgment. Kuehne v. Samedan Oil Corp., Wyo., 626 P.2d 1035 (1981).

B Determination That the Contract Was Not Ambiguous

This court has regularly and forcefully ruled that the determination whether a written agreement is ambiguous is a determination of law, to be made by the trial court. E & E Mining, Inc. v. Flying Group, Inc., 718 P.2d 58 (1986); Sannerud v. First National Bank of Sheridan, Wyo., 708 P.2d 1236, 1240 (1985) (construction of an unambiguous agreement is done by the court as a matter of law); Shepard v. Top Hat Land & Cattle Co., Wyo., 560 P.2d 730 (1977); Goodwin v. Upper Crust of Wyoming, Inc., Wyo., 624 P.2d 1192 (1981); Madison v. Marlatt, Wyo., 619 P.2d 708 (1980).

"If the language of a contract is plain and unequivocal, that language is controlling and the interpretation of its provisions is for the court to make as a matter of law. The meaning of the instrument is to be deduced only from its language if the terms are plain and unambiguous." Hollabaugh v. Kolbet, Wyo., 604 P.2d 1359, 1361 (1980).

Nothing in the discovery evidence presented before trial or the facts introduced at trial afford a basis for concluding that the trial court's decision was incorrect. We agree that the agreement was clear and understandable as to the undertaking by the parties as defined in the written instrument.

C Inadmissible Hearsay Evidence

In the course of Williams' case in chief, a representative of Collins was called as an adverse witness. The examination was extended, and on cross-examination by his own counsel the earlier subject of Motorola negotiations was addressed. At issue was the question of whether the response by Collins to Motorola for radio-tower rental services was of a nature to terminate further discussions, as contended by Williams, or whether it was a high opening bid to allow room for negotiations, as contended by Collins. In answer to the direct-examination inquiry as to the...