This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C4-00-829

 

Winthrop Resources Corporation,

Respondent,

 

vs.

 

Schlumberger Technology Corporation,

Appellant.

 

Filed January 30, 2001

Affirmed

Mulally, Judge*

 

Hennepin County District Court

File No. 994906

 

Erin K. Fogarty Lisle, Michael Berens, Barbara Podlucky Berens, 3720 IDS Center, 80 South Eighth Street, Minneapolis, MN 55402 (for respondent)

 

Greer E. Lockhart, Christopher R. Morris, Bassford, Lockhart, Truesdell & Briggs, P.A., 3550 Multifoods Tower, 33 South Sixth Street, Minneapolis, MN 55402 (for appellant)

 

            Considered and decided by Lansing, Presiding Judge, Shumaker, Judge, and Mulally, Judge.

U N P U B L I S H E D    O P I N I O N

 

MULALLY, Judge

 

Appellant, Schlumberger Technology Corp., appeals from a summary judgment entered in favor of respondent. Appellant alleges that: (a) genuine issues of material fact exist relative to the payment terms of any extension; (b) genuine issues of material fact exist relative to the amount of damages to which respondent is entitled, but that any damage amount should, based on the terms of the contract, be less than that for which judgment was entered; and (c) it is entitled to recover its security deposit.  Because no genuine issues of material fact exist and the trial court did not err in its application of the law, we affirm.

FACTS

            In 1995, Winthrop Resources Corporation (“Respondent”) and Schlumberger Technology Corporation (“Appellant”) entered into a lease arrangement whereby respondent leased to appellant certain computer equipment.  The parties executed Lease Agreement, No. SC012695, dated January 26, 1995.  The parties also executed Lease Schedule, No. 001R, which identified the specific equipment leased, the monthly lease charge, and the initial lease term.

            The Lease Agreement provided that:

            [T]he Equipment listed on the Lease Schedule(s) attached hereto or incorporated herein by reference from time to time (herein referred to as the “Equipment”), subject to the terms and conditions hereof, as supplemented with respect to each item of Equipment by the terms and conditions set forth in the appropriate Lease Schedule.  The term “Lease Agreement” shall include the various Lease Schedules identifying each item of Equipment or the appropriate Lease Schedule identifying one or more particular items of Equipment.

 

The term of this Lease Agreement as to all Equipment designated on any particular Lease Schedule shall commence on the Installation Date * * * and shall continue for an initial period ending that number of months from the Commencement Date as set forth in such Lease Schedule * * * and shall continue from year to year thereafter until terminated.

 

Moreover, the Lease Agreement provided that

 

The Lease Charges for the Equipment leased pursuant to this Lease Agreement shall be the aggregate Lease Charges set forth on each and every Lease Schedule executed pursuant hereto.

 

            The Lease Schedule provided the delivery and installation date of March 1995, and the “Term of Lease from Commencement Date” was thirty-six months.  Further, it provided that termination of the lease must be in writing and “not less than one hundred twenty (120) days prior to such termination date.”

            Pursuant to the terms of the Lease Schedule, appellant was to deliver to respondent a security deposit of $13,215.00 upon execution of the Lease Schedule.  It provided that if “there is no default by Lessee, this Security Deposit will be applied by Lessor as the Lease Charges for the last month of the lease.”

            On February 17, 1998, appellant provided written notice of termination of the lease to respondent.  Later that month, respondent informed appellant that the lease term would be extended as a result of appellant’s untimely notice of termination.  Respondent offered to allow appellant to return the leased equipment.  Appellant refused, but subsequently sent the computer equipment back to respondent’s home office.  Respondent refused the return of the equipment at its home office, but did receive the equipment at its warehouse.  Respondent sold the computer equipment for $8,700.

            Respondent continued to bill appellant for monthly lease charges after April 30, 1998.  However, appellant did not pay those invoices.  On June 9, 1998, respondent sent a letter informing appellant that it was in default for failure to pay the monthly lease charges.  On June 23, 1998, respondent sent a second default letter to appellant.  In April 1999, respondent commenced this action against appellant seeking lease payments for the period of the lease extension, from May 1998 until April 1999, as well as its costs and attorneys fees.  Pursuant to respondent’s motion for summary judgment, the trial court found that no genuine issues of material fact existed and rendered summary judgment in favor of respondent.  This appeal followed.

D E C I S I O N

On appeal from summary judgment, this court determines whether there are any genuine issues of material fact and whether the trial court erred in its application of the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990); see Minn. R. Civ. P. 56.03 (1998) (setting forth standard for summary judgment).  “[T]here is no genuine issue of material fact for trial when the nonmoving party presents evidence which merely creates a metaphysical doubt as to a factual issue and which is not sufficiently probative with respect to an essential element of the nonmoving party’s case to permit reasonable persons to draw different conclusions.”  DLH, Inc. v. Russ, 566 N.W.2d 60, 71 (Minn. 1997).  This court must view the evidence “in the light most favorable to the party against whom judgment was granted.”  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted).

I.

Appellant argues that there is a genuine issue of fact as to whether the computer equipment lease was extended at the same monthly rate as the three-year lease.  At the very least, appellant argues the lease is ambiguous as to the terms with respect to the lease extension and the rate for any extension.  A lease is a contract to be construed according to the rules of contract interpretation.  Amoco Oil Co. v. Jones, 467 N.W.2d 357, 360 (Minn.App.1991). Interpreting a contract necessitates looking at it as a whole, to determine if ambiguity exists.  Id.  A contract is ambiguous where it is reasonably susceptible to more than a single interpretation.  Id.

The trial court found that there were no material facts because the Lease Agreement and the Lease Schedule are “fully incorporated” documents that must be read together to determine intent.  The Lease Agreement provided that

[T]he Equipment listed on the Lease Schedule(s) attached hereto or incorporated herein by reference from time to time (herein referred to as the “Equipment”), subject to the terms and conditions hereof, as supplemented with respect to each item of Equipment by the terms and conditions set forth in the appropriate Lease Schedule.  The term “Lease Agreement” shall include the various Lease Schedules identifying each item of Equipment or the appropriate Lease Schedule identifying one or more particular items of Equipment.

 

* * * *

 

It is clear and unambiguous that the Lease Schedule is incorporated in the Lease Agreement. By the language of the Lease Agreement, the lease shall run year to year until termination, and the lease charges are dictated by the Lease Schedules. Those charges are $13,215.00 per month for a lease term of thirty-six months.  Additionally, the Lease Schedule was issued pursuant to the Lease Agreement.  The trial court was correct in finding that the only rate listed was in the Lease Schedule, and because the Lease Agreement provided for a year to year extension until termination, the thirty-six month rate in the Lease Schedule must be continued and applied to the extension.

II.

Appellant argues that respondent’s damages should be limited to the amount respondent would have received under the Loss and Damage provision in the Lease Agreement instead of the amount due the respondent under the Remedies provision of the Lease Agreement.  Appellant also argues that damages are a question for a fact finder rather than an issue for summary judgment.  The nonmoving party must present some evidence that places a material fact in dispute.  Sauter v. Sauter, 244 Minn. 482, 485, 70 N.W.2d 351, 353 (1955).

The trial court found that the damages respondent seeks are only those damages contemplated by the contract upon a breach and the appellant “failed to indicate that there was any dispute at all with respect to [respondent’s] calculation of the sums due under the lease.”  The trial court also noted that appellant’s argument, that the sum awarded greatly exceeds the value of “anticipated remaining loss of bargain” because the trial court failed to consider that the property could be lost or stolen, was not raised by appellant at summary judgment regarding respondent’s prima facie case for damages.  The trial court noted that it would not speculate as to the parties’ contractual rights that were not presented.  We will not do so either.

The Remedies provision is clear.  If respondent retakes the leased equipment, respondent is entitled to “all accrued and unpaid rents” and to “sell the Equipment at public or private sale, and recover from Lessee the difference, if any, by which the Net Proceeds of sale shall be less than (i) the Lessor’s then applicable Unrecovered Investment in the Equipment, plus (ii) the then worth to Lessor of its anticipated remaining loss of bargain.”  Under appellant’s argument, the Loss and Damage provision should apply.  This argument is unpersuasive.  Appellant presented no evidence that the computer equipment was either lost or damaged and did not present evidence to show respondent’s failure to mitigate its damages.  Appellant defaulted by not paying the lease, the computer equipment was returned, and respondent subsequently sold the computer equipment to offset its damages. 

III.

Appellant argues that pursuant to a reasonable meaning of the term “security deposit,” the claimed damages should be offset by the $13,215 security deposit, and argues that the trial court was incorrect in not addressing this issue.  The trial court admitted that it did not consider the issue of the security deposit that appellant raised in its initial counterclaim, but duly noted that the issue was not addressed in appellant’s written summary judgment material or at the summary judgment hearing.  This court will generally not consider matters not argued and considered in the court below.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  The only mention of the security deposit in appellant’s summary judgment memorandum was in the introduction when they stated, “Schlumberger, [appellant] through its counterclaim, seeks reimbursement for a security deposit paid to Winthrop [respondent] for the equipment.”  There is no case law or argument to support this statement.

In its order and memorandum regarding appellant’s motion for reconsideration, the trial court noted that even if appellant raised the security deposit issue, “it would still not be entitled to recover the security deposit.”  The Lease Schedule states that “provided there is no default by Lessee, this Security Deposit will be applied by Lessor as the Lease Charges for the last month of the lease.”  The trial court was correct in finding that appellant defaulted on the lease.  Appellant defaulted by failing to give notice of termination 120 days prior to the thirty-six month lease termination and subsequently failing to pay after the year-long extension began.

            Affirmed.

 

 

 



* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.