This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2006).
STATE OF MINNESOTA
IN COURT OF APPEALS
Jerold O. Nelson,
Douglas J. Nill,
Filed February 13, 2007
Hennepin County District Court
File No. 27-CV-05-016733
Lewis A. Remele, Jr., Charles E. Lundberg, Bassford Remele, A Professional Association, 33 South Sixth Street, Suite 3800, Minneapolis, MN† 55402-3707(for appellant)
Douglas J. Nill, Douglas J. Nill, P.A., 1100 One Financial Plaza, 120 South Sixth Street, Minneapolis, MN† 55402-1801 (respondent and attorney pro se)
††††††††††† Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Shumaker, Judge.
††††††††††† Appellant, attorney Jerold O. Nelson, challenges the district courtís grant of summary judgment in his action to enforce the terms of a written agreement he entered into with respondent, attorney Douglas J. Nill.† Because their agreement is ambiguous and reasonably susceptible to more than one interpretation, we conclude that genuine issues of material fact remain unresolved, and the district court erred by granting summary judgment.† We therefore reverse and remand.
judgment is appropriate when there are no genuine issues of material fact and
either party is entitled to judgment as a matter of law.†
††††††††††† Whether a
contract exists is generally a question for the fact finder.† Morrisette
v. Harrison Intíl Corp., 486 N.W.2d 424, 427 (
contract is ambiguous if it is reasonably susceptible of more than one
interpretation, based on the language of the contract.† Metro.
Sports Facilities Commín v. General Mills, Inc., 470 N.W.2d 118, 123 (
reviewing a contract, we ďattempt to harmonize all clauses of [a]
contract.Ē† Banbury v. Omnitrition Intíl, Inc,533 N.W.2d 876, 880 (
††††††††††† This Agreement acknowledges that Jerold O. Nelson has advanced the sum of $20,000 to Douglas J. Nill.† As security for repayment of this loan and in recognition of the considerable time Nelson has expended assisting and counseling Nill in the prosecution of that class action litigation [BASF], Nelson will be entitled to a sum equivalent to ten percent (10%) of Nillís fifty percent (50%) entitlement to any court approved attorney fee awarded to Nill as a result of judgment or settlement in [the BASF litigation].
††††††††††† * * * *
††††††††††† Nill and Nelson recognize and agree that there is a risk that [the BASF litigation] can result in an unfavorable judgment, with no attorney fees awarded . . ., which would result in no repayment and constitute a complete forgiveness and satisfaction of the $20,000 loan.
This contract language is neither a straightforward loan agreement nor a recognizable attorney fee retainer.† To find that this agreement is merely a loan agreement, we must ignore the language that acknowledges Nelsonís legal assistance to Nill; to view this as a retainer agreement, we must ignore the reference to repayment of a loan.†
††††††††††† We therefore
conclude that the agreement here is reasonably susceptible of more than one
interpretation, thus rendering the agreement ambiguous.† The interpretation of an ambiguous contract
is a question of fact, which can be resolved by consideration of extrinsic
evidence.† City of
††††††††††† Reversed and remanded.