IOWA’S BEST, INC. v. PIRRONE, 03-1976 (Iowa App. 12-22-2004)

No. 4-760 / 03-1976Court of Appeals of Iowa.
Filed December 22, 2004

Appeal from the Iowa District Court for PolkCounty, Carla T. Schemmel, Judge.

Dennis Lee appeals on his own behalf and as representative of Better World Technologies, Inc., and United Community Services of America, Inc., from the summary judgment entered against the defendants. AFFIRMED.

Dennis Lee of United Community Services of America, Newfoundland, New Jersey, appellant pro se.

Robert Pirrone, Midland Park, New Jersey, defendant pro se.

Bruce Johnson, Cutler Law Firm, P.C., West Des Moines, for appellee.

Considered by Sackett, C.J., and Mahan and Hecht, JJ.

HECHT, J.

Dennis Lee, Better World Technologies, Inc., and United Community Services of America, Inc., appeal from a summary judgment entered against them. We now affirm.

I. Background Facts and Proceedings.

In November of 1999, Iowa’s Best, Inc., L.C.,[1] and Better World Technology Funding Group., L.P. (BWTFG) entered into a limited partnership agreement.[2] The limited partnership was ostensibly formed to raise capital to fund the research and development of “Free Energy” products by Better World Technologies, Inc. (BWT). The agreement further contemplated that BWT’s products would be marketed by United Community Services of America, Inc. (UCS) through dealers. As consideration for the agreement, Iowa’s Best paid $100,000.00 to BWT for three “dealerships” and $50,050 to UCS for 20,020 registrations intended for resale to the public.

Marvin Redenius, a principal of Iowa’s Best, noted more than a year later that no activity was being reported from BWT or UCS. After researching the “Free Energy” concept and discovering less than reassuring reports about BWT and UCS and their principals, Robert Pirrone and Dennis Lee, Redenius filed suit alleging, among other things, breach of contract and fraud. Redenius and Lee subsequently entered into negotiations and signed an agreement on August 12, 2002. The agreement required Redenius, as president of Iowa’s Best, to dismiss the pending lawsuit and Lee, as president of BWT and UCS to pay consideration of $161,897.00 plus interest. The August 12 agreement characterized the return of Iowa’s Best’s investment as a repurchase from Iowa’s Best of the dealerships and the registrations sold to it pursuant to the partnership agreement. The August 12 agreement contemplated three monthly installments of $53,965.67 to be paid to Iowa’s Best after the delivery of the corresponding installment of registrations to Lee, BWT and ACS. Paragraph Four of the August 12 agreement noted that “[f]ailure to make any payments in full on the listed dates constitutes default and no further demand for payment is required.”

The agreement required Iowa’s Best to “discontinue any further legal action” against Pirrone, Lee, BWT and UCS unless the agreement was prospectively breached. The agreement obligated Redenius and Iowa’s Best to keep confidential the details of their relationship with Pirrone, Lee, BWT and UCS and to share with . . . Dennis Lee, ALL information that [they] have including details of ALL conversations [they] have had with any and ALL third parties that has (sic) caused you to lose faith in our relationship and share all pertinent information in detail on any discussions [they] may have had with any Attorney General from any state relating to Dennis Lee or any of the above named companies, persons, or entities.

This August 12 agreement further obligated Redenius and Iowa’s Best to provide a list of names or entities of such “third parties” after they received payment in full under the August 12 agreement.

After receiving two installment payments, Redenius and Iowa’s Best delivered the third group of registrations to Lee. On October 29, 2002, Lee informed Redenius by letter that he was withholding the third installment payment because the August 12 agreement obligated Redenius to provide a deposition prior to receiving the third and final installment payment. Contending the deposition requirement was not part of the August 12 agreement, and noting that the time for the third installment payment had lapsed, Iowa’s Best amended its original petition to allege breach of the August 12 agreement.

After amending its petition, Iowa’s Best filed a motion for summary judgment on its claim for breach of the August 12 agreement. Lee filed a resistance.[3] The district court granted the motion against Lee noting that “Redenius is not obligated to provide information until after [the third installment] payment is made. Defendants are therefore in breach of the settlement contract because of their failure to make the third installment payment.” From this grant Lee, BWT, and UCS now appeal, contending a genuine issue of material fact exists with regard to whether the parties to the August 12 agreement intended the agreement to be a settlement. Lee further contends that separate fact issues exist as to whether and by whom the August 12 agreement was breached. Because BWT and UCS have failed to preserve error,[4] we limit our review to Lee’s claims of error.

II. Scope and Standard of Review.

A ruling granting summary judgment is reviewed on appeal for correction of errors at law. Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 565 (Iowa 2000). Summary judgment is only appropriate where no genuine issue of material fact presents itself in relation to a particular issue and the moving party is entitled to judgment as a matter of law. Iowa R. Civ. P. 1.981(3). A genuine fact issue exists where reasonable minds can differ on how the issue should be resolved. Northrup v. Farmland Indus. Inc., 372 N.W.2d 193, 195 (Iowa 1985). In assessing whether a fact issue exists precluding summary judgment, we review the entire record in a light most favorable to the non-moving party. Crippen, 618 N.W.2d at 565.

III. Discussion.

Lee contends on appeal that a genuine issue of material fact exists as to whether the parties intended the August 12, 2002, agreement to effectuate a settlement of their disputes or conceived it, as Lee contends, as an agreement to accomplish Lee’s repurchase of the three dealerships and the 20,020 registrations.[5] We are not convinced that these alternative characterizations of the August 12 agreement are of significance to the district court’s ruling or our decision on appeal. Lee cites no authority supporting a determination that summary judgment would be improper in this case if his characterization of the parties’ intent was credited by the court. The parties participated in drafting the agreement and signed it evidencing their intent to be bound. We therefore conclude Lee’s argument that summary judgment should have been withheld because of a claimed dispute about the proper characterization of the agreement is wholly without merit.

The August 12 agreement clearly and unambiguously provides that Iowa’s Best will (1) return the registrations in three installments, (2) provide information about conversations causing a loss of faith in the limited partnership, and (3) terminate all legal actions against Pirrone, Lee, USC, BWTFG, and BWT. In return, Lee promised to make the three monthly installment payments by the dates specified in the agreement. It is undisputed that Lee failed to timely make the third and final installment.

Lee contends he justifiably withheld the third installment because Redenius failed to give a deposition detailing the conversations he had with third parties. We note the agreement makes no mention of a deposition and expressly states that the “list of names and details is not required to be given over until Marvin Redenius has received full payment on this agreement.”

Where the agreement’s language is clear and unambiguous, the intent of the parties to the agreement is evidenced only by what the contract itself says. Iowa R. App. P. 6.14(n). Here the agreement’s terms are clear and unambiguous, and any parole or extrinsic evidence as to a contrary meaning or intent is not admissible. Hamilton v. Wosepka, 261 Iowa 299, 308, 154 N.W.2d 164, 168 (Iowa 1967). The evidence is uncontroverted that Iowa’s Best delivered its final installment of registrations and that that tender obligated Lee to make the final installment payment. By the explicit terms of the agreement, Lee’s failure to make the third installment payment in full was a material breach of the agreement and entitled Iowa’s Best to summary judgment. Viewing the record in a light most favorable to Lee, we find all other claims and contentions presented by him on appeal to be without merit. We therefore affirm the district court’s ruling.

AFFIRMED.