This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Davisco Foods International, Inc., d/b/a/ Cohasset Tile Co.,
Blackwater Properties, L.L.P.,
Hackman Capital Partners, L.L.C.,
Technimar Acquisition Group, L.L.C., third-party defendant,
Filed June 4, 2001
Itasca County District Court
File No. DC246652
George O. Ludcke, Erin K. Fogarty, Lisle, Kelly & Berens, P.A., 3720 IDS Center, 80 South Eighth Street, Minneapolis, MN† 55402 (for appellant)
Eric J. Magnuson, Kimberly T. Ross, Rider, Bennett, Egan & Arundel, LLP, 333 South Seventh Street, Suite 2000, Minneapolis, MN† 55402 (for respondent Hackman Capital Partners)
Stephanie A. Ball, Fryberger, Buchanan, Smith & Frederick, P.A., 700 Lonsdale Building, 302 West Superior Street, Duluth, MN† 55802 (for respondent Technimar Acquisition Group)
††††††††††† Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Peterson, Judge.
U N P U B L I S H E D†† O P I N I O N
††††††††††† Appellant challenges a summary judgment based on an indemnification provision in the partiesí contract, an order denying its motion for amended findings, and the award of attorney fees to respondents.† Because the indemnification provision was enforceable against appellant and because appellant failed to adequately raise the other issues below, we affirm.
††††††††††† Defendant Blackwater Properties and Technimar Industries entered into an agreement whereby Blackwater agreed to lease land to Technimar and build a manufacturing facility on Blackwaterís land.† Blackwater and Technimar each owned some of the equipment in the facility.† Technimar experienced financial difficulties and filed for bankruptcy.† Respondent Technimar Acquisition Group (TAG) was formed, and it loaned Technimar money pursuant to a loan agreement.† In return, TAG obtained a first priority security interest in all of Technimarís equipment.† After Technimar defaulted on its loan, TAG arranged a public auction sale of the equipment and hired respondent Hackman Capital Partners to run the auction.† The equipment was to be sold in one lot, which included two bridge cranes.
††††††††††† On March 10, 1999, appellant Davisco Foods International, Inc., d/b/a Cohasset Tile Co. (Cohasset) participated in the auction.† As a prerequisite to bidding at the auction, all bidders, including Cohasset, were required to enter a terms of sale contract with Hackman and TAG.† The contract included a provision that required the buyer to indemnify Hackman and TAG for claims arising out of the auction.† The contract also required all bidders to deposit $50,000 with Hackman before the auction, which would be applied toward payment for a successful bid.†
Because Cohassetís representatives could not attend the auction in person, they participated by telephone. Cohassetís representatives received information from a Hackman employee, who, in turn, was connected to another Hackman employee at the auction site.† Before the auction began, Hackman announced that the two bridge cranes would not be part of the lot of equipment to be auctioned.† Cohasset maintains that the Hackman employee did not inform Cohassetís representatives of this announcement. Ultimately, Cohasset was the successful bidder, and it received all of the items on which it bid, except the two bridge cranes.
††††††††††† Because Cohasset did not receive the bridge cranes, it commenced a replevin action against Blackwater on April 15, 1999.† Later, Cohasset amended its complaint to include, inter alia, an action against Hackman for negligence and an action against TAG for failure to deliver and unjust enrichment.† After numerous counterclaims and cross claims, all parties moved for summary judgment.† The district court granted summary judgment in favor of Hackman and TAG, finding, inter alia, that the indemnification provision barred Cohassetís negligence claim against Hackman and its failure-to-deliver and unjust-enrichment claims against TAG.† The court reserved the issue of Blackwaterís, Hackmanís, and TAGís motions for attorney fees.† The only issue left for trial was whether Blackwater or TAG owned the cranes.† Following a bench trial on this issue, Blackwater was found to be the owner.
††††††††††† On April 10, 2000, a hearing was held on the attorney fees issue. At the hearing, Cohasset argued, for the first time, that it was entitled to a return of its deposit pursuant to certain provisions of the terms of sale contract.†† Based on this argument, Cohasset orally moved to have the case reopened, and the district court denied the motion. Cohasset then requested reconsideration, which the court denied.† After judgment was entered, Cohasset moved to amend the findings, requesting that the court include in its conclusions of law a statement that Cohasset was entitled to the return of its deposit. The court denied the motion.
D E C I S I O N
When reviewing a grant of summary judgment, a reviewing court must determine (1) whether there are any genuine issues of material fact, and (2) whether the district court erred in its application of the law.† Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988).† A reviewing court must view the evidence in the light most favorable to the party against whom the motion was granted, but it need not defer to the district courtís application of the law. Id.
Cohasset argues that the indemnification provision does not specifically provide for indemnification of (1) Hackmanís alleged failure to properly communicate to Cohasset that the bridge cranes had been excluded from the auction or (2) TAGís failure to deliver the cranes.
When interpreting a contract, a reviewing court must construe the agreement as a whole.† Chergosky v. Crosstown Bell, Inc., 463 N.W.2d 522, 525 (Minn. 1990). Whether a contract is ambiguous, meaning it is susceptible to more than one construction, is a question of law, and the district courtís determination is given no deference.† Blackburn, Nickels & Smith, Inc. v. Erickson, 366 N.W.2d 640, 643-44 (Minn. App. 1985), review denied (Minn. June 24, 1985) (citation omitted).† If no ambiguity exists, interpretation of a contract is a question of law, but if a contract is ambiguous, its meaning is a question of fact.† City of Virginia v. Northland Office Properties Ltd. Partnership, 465 N.W.2d 424, 427 (Minn. App. 1991), review denied (Minn. Apr. 18, 1991) (citation omitted).
††††††††††† The indemnification provision states:
Buyer shall indemnify, hold harmless and defend [Hackman] and the Owners from and against any and all losses, damages, liabilities and claims, and all attorneys fees, costs and expenses arising out of, based upon or resulting from * * * (iii) any act by or omission of [Hackman], [or] the Owners, * * * relating to or affecting the goods bid on and/or purchased by the Buyer, (iv) the claim of any third party claiming or challenging title to any good purchased by Buyer or claiming infringement of any proprietary interest, [or] (v) the claim of any person resulting from [Hackman] offering for sale or selling the goods purchased by Buyer.
Paragraph 9 provides:
Nondelivery.† * * *† The seller and Auctioneer have no liability to the buyer due to nondelivery of any purchased item(s), other than the return of buyerís deposit.† No claim of any kind as to purchased items whether or not based upon negligence shall be greater in amount than the purchase price.
Paragpraph 23 provides:
Limitation of Liability.† [Hackman] shall have no liability to Buyer due to nondelivery of any item for any reason other than to return to Buyer the monies deposited for such nondelivered items.† Buyerís sole remedy for nondelivery of items shall be the refund of the original purchase price paid by Buyer for such items.†
††††††††††† A.††††††† Indemnification of Hackman†††††††††
A party may
properly bargain for indemnity against [its] own negligence where the latter Ďis only an undesired possibility in the performance of the bargain, and the bargain does not intend to induce the act.í
St. Paul Fire & Marine Ins. Co. v. Perl, 415 N.W.2d 663, 666 (Minn. 1987) (quotation omitted).† But, such provisions are not favored by the law and will not be ďconstrued in favor of indemnification, unless [the partiesí] intention is expressed in clear and unequivocal terms.Ē† Oster v. Medtronic, Inc., 428 N.W.2d 116, 118 (Minn. App. 1988) (citation omitted).† If the provision as a whole indicates the partiesí intent, then a specific reference to negligence is not required.† Id.
††††††††††† Here, the language indicates the partiesí intent even though negligence is not specifically referenced in the indemnification provision.† The provision states that Cohasset must indemnify Hackman for claims arising out of any act or omission by Hackman relating to or affecting the goods bid on or purchased by Cohasset.† The basis of Cohassetís claim against Hackman is that Hackman was negligent in relaying to Cohasset the information that the cranes had been withdrawn from the auction.† The language of the provision clearly and unequivocally covers Hackmanís alleged negligence because Cohassetís claim arose out of Hackmanís act or omission, which directly related to the goods on which Cohasset bid.† See Rausch v. Beech Aircraft Corp., 277 N.W.2d 645, 647 (Minn. 1979) (concluding term ďarising out ofĒ delineates appropriate connection and more specific definition is unnecessary).
††††††††††† B.††††††† Indemnification of TAG
††††††††††† Cohasset argues that TAG is not entitled to indemnification because Cohassetís claim against TAG is based on the contractual theory of failure to deliver.† The indemnification provision states that Cohasset must indemnify TAG for claims arising out of any act or omission by TAG relating to or affecting the goods bid on or purchased by Cohasset.† Cohassetís failure-to-deliver claim arises out of TAGís failure to deliver the cranes, which was an act relating to the goods bid on by Cohasset. Accordingly, the indemnification provision clearly and unequivocally covers TAGís act.
††††††††††† Because the indemnification provision clearly and unequivocally covers (1) Hackmanís alleged failure to properly communicate to Cohasset that the bridge cranes had been excluded from the auction and (2) TAGís failure to deliver the cranes, the district court did not err by enforcing the provision as a matter of law.† Reading the terms of sale provision as a whole creates a circuity of obligation, which defeats Cohassetís claim.† See National Hydro Sys. v. M.A. Mortenson Co., 529 N.W.2d 690, 693 (Minn. 1995) (concluding circuity of obligation created when plaintiff is obligated to indemnify defendant for claims that include plaintiffís own claim defeats plaintiffís claim as a matter of law).† Thus, the court correctly granted summary judgment in favor of Hackman and TAG.
††††††††††† Cohasset argues that, under paragraphs 9 and 23, it is entitled to return of its deposit because the bridge cranes were not delivered to it.† Neither Cohassetís original complaint nor its amended complaint raised the issue of whether it was entitled to have its deposit returned.† Further, Cohasset did not raise this issue during the hearing on the multiple summary judgment motions on August 23, 1999.† The first time Cohasset raised this issue was during the hearing for attorney fees on April 10, 2000, when Cohasset made an oral motion to reopen the case.† The district court denied the motion. Cohasset then asked the court to reconsider its decision, and the court denied the request.† After judgment awarding attorney fees was entered, Cohasset moved for amended findings.† In its motion, Cohasset asked the court to include in its findings of fact and conclusions of law awarding attorney fees additional findings regarding the $50,000 deposit and a conclusion of law that Cohasset is entitled to have the deposit returned.† The court denied the motion.
††††††††††† It is well settled that issues that were neither pleaded nor litigated by consent cannot be raised for the first time in posttrial motions.† See Allen v. Central Motors, Inc., 204 Minn. 295, 297, 283 N.W. 490, 492 (1939) (claim that is not pleaded nor litigated by consent may not be raised for first time in posttrial motion).† Because Cohassetís claim for return of its deposit was neither pleaded nor litigated by consent, Cohasset could not raise the issue in a motion for amended findings.
Cohassetís brief does not contain an argument regarding attorney fees.† The only portion of Cohassetís brief that can be treated as having raised the issue is the conclusion section, which states:
Cohasset requests that the Court of Appeals reverse the judgment against it and the District Courtís orders enforcing the indemnification provision in the Terms of Sale and awarding Hackman and TAG costs and [attorney] fees and remand this action.
††††††††††† A reviewing court may decline to address allegations unsupported by legal analysis or citation.† See State, Depít of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (declining to reach an issue in absence of adequate briefing). Because Cohasset failed to brief this issue, we decline to address it on appeal.
 During oral argument, Cohasset argued for the first time that the indemnification provision should not be enforced because it was not commercially reasonable.† Because Cohasset did not raise this theory in the district court, it has waived this theory on appeal.† Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).