*1 153 CUMMING, Rahman, Mike Mizan and M&M v. Properties REALTY,

PUTNAM INC. CA 02-293 92 S.W.3d 698

Court of of Arkansas Appeals

Divisions III and IV 18, delivered December 2002 Opinion *2 Eichenbaum, P.A., Heister, Liles & O. Parker by: Christopher and Mitchell L. for Berry, appellants. LLP, Allen, & T.

Wright, Lindsey for Jennings by: Justin appellee. Stroud,

John P. Chief Jr., This case arises from Judge. the trial court’s of grant summary judgment appellee, Inc., $28,317.50, Putnam it Realty, awarding plus prejudgment and interest. It involves the postjudgment construction of two contracts, a commission between the and a lease between and Crown Communications. The appellants centers on the commission fee that dispute appropriate appellants are for obligated pay appellee negotiating leasing arrange- ment between Crown Communications appellants owned The respect property by appellants. property for a 100-foot 100-foot of land to be used aas cellular- parcel tower site. Mike and Mizan Appellants Rahman com- Cumming called prise general M&M which is partnership Properties, Hill, also an in this case. appellant C. a licensed real estate James for the deal agent appellee, negotiated appellants Crown Communications. both filed Appellee motions for below. summary judgment Appellee prevailed. a “the trial court erred as raise two of 1) points appeal: law in construction of the commission 2) matter of its agreement,” award “the court-awarded fee should be reversed if substantive the liti- is reversed and includes fees before generated improperly error, the trial of no we affirm court’s gation.” Finding grant and award of fees. summary judgment con- motion basically Appellee’s $28,317.50. it a fee tended that owed of The asserted fee ten of rentals represented gross lease, term contended was a initial which appellee motion for twenty-five years. summary judg- period Appellee’s affidavit, ment was three documents: Hill’s 2) supported by Jim *3 the the lease commission agreement parties, between Crown and Hill stated in his affi- agreement appellants. davit that he contacted to determine if were inter- they ested in some of their for a cellular tower. He leasing property them, stated that at the time he contacted he was aware that Crown Communications be interested in such a lease and might that he so informed He stated that were appellants. interested and that entered into a commission they Putnam, with that Putnam would act in their behalf to providing as a In to a Crown lessee. acquire exchange, appellants agreed pay The was commission for those services. commission agreement by appellee pertinent part: prepared provides WHEREAS, Broker has to Lessor a presented proposed Lease to which the Lessor would lease to Agreement pursuant Communications, Lessee a site on the Property Crown communica- location of a cellular tower and related freestanding in the Lease Agree- tions as more set forth facility particularly (the as Exhibit “A” ment attached hereto and made a hereof part “Lease”);

WHEREAS, Broker a commission Lessor has agreed pay the Lease for the in consideration of Broker’s efforts to obtain set forth the terms and conditions upon benefit of Lessor hereinafter; NOW, THEREFORE, hereto intending parties as follows: bound these do by hereby agree presents the Broker’s efforts to obtain Section 1. In consideration of Lessor, the thereunder to the and the benefits to inure the Lease Lessor a hereby agrees commission to Broker pay to ten equal (10%) of the “Gross Rentals” due to Lessor the terms of the Lease (the “Commission”). “Gross Rentals” for hereof purposes means the total of all rental other consideration to Lessor due the’initial term of the Lease. The Commission shall be in full in payable cash or its equivalent on or before the date of execution of the Lease thereto, or at such date as shall be mutually agreeable to the par- ties hereto.

Section 4. This Agreement shall constitute the entire agree- ment between the Lessor and the Broker with to the respect Commission and shall and all other supersede any prior agree- ments, oral, whether written or concerning matters set forth hereinabove. Hill’s affidavit stated in six that at the time the paragraph Jim executed, he was in of a possession of Crown’s standard lease

copy that it agreement; was made availa- ble to and that it was attached appellants; as an exhibit to the He stated agreement. that he Crown subsequently presented option leasing and that appellants’ property they expressed the desire to do so. Hill stated that to Crown’s standard according Crown is able agreement, to cancel a lease at time six months’ notice. giving He testified that he attempted nego- *4 tiate a Crown, non-cancellation ten-year agreement but was able to only secure a five-year non-cancellation He agreement. further testified that the “Initial Term” twenty-five-year contained in Crown’s standard lease agreement maintained in the final Crown and he appellants. Finally, the explained “Initial Term” although of the lease between and Crown had had begun, failed to pay commission that was due to the terms of the pursuant agreement.

The lease was executed between appellants and Crown contains the following pertinent provisions:

2. Lease Term. This Lease shall be for an initial term of twenty-five years, on the beginning date of Lessee’s commence- ment of construction of the wireless proposed communications facility (the “Initial Term”). This Lease shall be automatically (the terms year three twenty-five extended for subsequent terminates it to unless Lessee Terms”) “Renewal The Initial Term and Renewal set forth herein. provisions Term.” to as the “Lease be referred collectively Terms shall execution $700.00 upon complete Lessee shall to Lessor pay the execution (6) shall have six months from of this Lease. Lessee obtain zon- necessary to commence construction or of this Lease For an additional pay- and/or building permits. ing approvals $700.00, in the amount of Lessor ment from Lessee to Lessor (6) six month within (1) period one additional agrees grant or obtain necessary zoning which to commence construction con- reasonably Lessor will and/or approvals building permits. (6) the second six month beyond period sider additional periods the necessary the event needs additional time to procure Lessee and/or building permits. zoning approvals Term, the Initial Lessee 3. Rent. commencement of Upon $8,400.00 monthly shall to Lessor per year paid equal pay (the rent for the Leased Premises $700.00 installments of Term, the “Rent”). the first five of the Initial Rent years After that was in effect shall increase fifteen over Rent by percent For five-year every five-year period during previous period. thereafter, fifteen over the the Rent shall be increased previous five-year period. Right to Terminate. for Lessee’s

4. Lessee’s Except this terminate this from Lessor’s breach of arising Lease right Lease, all and the wireless com- once Lessee receives Approvals Lessee shall have no munications becomes facility operational, five of the (5) Lease the first years to terminate this right Thereafter, unilateral right Lessee shall have the Initial Term. time, Lease, Lessor with six this at any by providing terminate shall be effective written notice. Said termination months prior Lessor. of termination to Lessee notice providing upon by Lessee. termination Upon Effect of Termination 5. Lessee, become null and void and this Lease shall of this Lease that any further obligations except all shall have no within termination shall be paid to the date of monies owed up date. of the termination days thirty for summary motion responded appellee’s *5 addition, of their and, sought judgment that the construction contention was own. Their basic proper a commission that owed was they only be the agreements given 158 $4,200,

fee was of which based ten of the rent- upon percent gross als that due the of were non-cancellable five-year portion lease, the rather the than initial term asserted twenty-five-year affidavit, In a Rahman countered appellee. supporting appellant Hill’s averments that Hill had made him aware of the 1). standard Crown at the the lease time commission was executed addition, it an 2) that was made exhibit to that In agreement. $4,200 Rahman that he had a stated check proffered appel- lee, which ten of the rentals that were represented gross due to under the terms of the currently appellants agree- ment. He stated that returned the check uncashed and appellee $28,317. insisted that owed that Rahman stated he rec- that if did Crown not terminate its lease after five ognized years would need to make additional at that time to appellee. Lincoln, 31, 29,

In v. Parkerson 347 Ark. 61 S.W.3d 146, our court set forth the (2001), stan supreme appropriate dard of review for cases: summary-judgment

We have ceased referring summary as a judgment “dras- tic” now it remedy. We as one the a regard simply of tools in arsenal; however, trial court’s we efficiency only approve the of the motion granting when the state of the evidence as por- affidavits, trayed pleadings, discovery responses, admis- sions on file is such party is not entitled a nonmoving i.e., court, when there is not day any genuine remaining issue of material fact and the is entitled moving party a judgment as matter of The law. burden of that there is no proving genuine movant, fact issue material is and all upon submitted proof must viewed favorably to party resisting motion. On review, we determine if appellate summary was judgment proper based on whether the evidence the movant a presented by left material fact unanswered. question (Citations omitted.)

Here, facts involve only possibly Rahman’s disputed denial of Hill’s averments that Hill 1) had made him aware of the standard at Crown lease the time the executed it that was made an exhibit to that agreement.

159 However, all of the facts that are material to this case are deciding and it becomes a matter of contract undisputed interpretation. As we v. explained Park Holytrent Properties Valley Limited, 336, 339-40, 27, 71 Ark. 32 S.W.3d App. 29-30 (2000) (citations omitted):

The construction and effect of a written lease legal contract law, are to be determined the court as a question except where the of the meaning on language depends extrinsic disputed evidence. When their contracting parties express intention in a written instrument in clear and unambiguous it is the language, court’s to construe the duty accordance with writing the plain of the meaning . . . language Parties are free employed. to make contracts based on whatever terms and conditions they agree upon, contract is provided not or tainted illegal with some fraud, such infirmity or the like. overreaching, Here, can be appellants’ argument summarized as fairly follows: That this

1) court should attention to the term pay particular “due,” which is contained in the commission and har- agreement, monize it with the term “initial term.” emphasized by appellee, cite cases that that in provide construing conflicting contract, in a clauses this court must not effect to one clause give another, to the exclusion of nor an that neu- adopt interpretation tralizes a if the reconciled, i.e., various provision, clauses can be that the contract must be construed to effect to word. give every See, Skokos, 41, v. 335 Ark. 977 e.g., Sturgis S.W.2d 217 (1998); That in

2) Black’s Law (4th ed.), editor com Dictionary ments that “the word ‘due’ a fixed and settled always obli imports or but with gation reference to the time liability, for its payment there term, is considerable in the use of the ambiguity precise context”; determined in each case signification being from the That the 3) words “initial term” are not nor capitalized given in the commission any special is emphasis “[t]here strained or stretched in nothing in the interpreting phrase of time the being simply period lease,” i.e., five, tenant is committed to the terms of the not twenty-five years; That the use two terms create an ambiguity submitted,

which no extrinsic evidence was and because the con- tract was doubts as to the of its prepared appellee, meanings *7 should be resolved provisions against appellee. hand, on other contends that the is

Appellee, language clear and and that it unambiguous supports appellee’s position. that the commission Appellee emphasizes agreement’s language lease, references the that “the Lessor specifically providing hereby to a commission to Broker to ten agrees pay (10%) equal of the ‘GrossRentals’ due to Lessor to the terms the Lease of that rentals” (the is defined the commis- ‘Commission’)”; “gross sion as “the total of all rental and agreement other con- payments Lease”; sideration due to Lessor the initial term the and that during of the lease then agreement Lease shall be for an provides “[t]his initial term of ...” twenty-five years.

We find that the their intention parties expressed written instruments clear and using unambiguous language. did not have to the lease Appellants without first sign back referring acquiring have needed in legal help they what it might understanding was that were could have they signing. They another negotiated deal, Moreover, but did not. as further they substantiation that the initial term of the lease was not five as years urged by appellants, we note that four of the lease paragraph agreement provides “Lessee shall have no to terminate this Lease right during first the Initial Term.” (5) years We added.) (Emphasis agree five of the trial court’s construction of the a matter of law. agreements

With second of we respect appellants’ point appeal, do not find that the simply convincing appellants’ argument pre fees should not have been complaint legal included in the fee award. cite no for their specific legal authority posi tion, and neither do convince us that the they court abused its discretion fees in the by including award. pre-complaint legal

Affirmed.

Hart, Robbins, Vaught, JJ., agree. Baker, J., Roaf, dissents.

Andree LaytonRoaf, I would Judge, dissenting. of reverse the trial court’s grant that the The Commission Agreement provided appel- appellee. Rentals, due of the Gross lee’s commission 10% to the terms the lease. “Gross Rentals” was appellants pursuant of all rental . . . due to defined as the “total of term the the initial of lease.” executed The lease Crown Commu- for an initial term of at an nications twenty-five years provided $8400, annual rental of with Crown to extend for having right However, three terms. Crown had twenty-five-year subsequent the unilateral to terminate after the first five right years initial term six months’ written notice. The by providing prior lease then would become “null and void” and the “shall have no further This is as much a obligations.” provision part *8 the terms of the lease as is the for an “initial provision calling term.”

I with there is sufficient agree appellants’ argument in the “due used to Lessor” as Commis- ambiguity phrase sion such that should not have Agreement Moreover, been “due to Lessor to the terms of granted. terms, the Lease” includes all of the necessarily including lessee’s absolute to terminate after five The lease right years. void, terms, then become null and to its would again pursuant be due. further lease would not certainly would owe additional have conceded they if continue commissions Crown Communications elects to the lease after the first five this conflicts with Commis- years; sion clause of the commission in Agreement calling payment However, advance. prepared by appellee, reconciled, the extent the two cannot be should provisions the drafter. construed against