This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).




Preferred Foods Concepts, Inc.,



Leon Pecha,


L&M Yogurt, Inc.,


Filed July 15, 1997


Toussaint, Chief Judge

Dakota County District Court

File No. C8959722

Robert C. Pearson, David M. Johnson, Johnson, Killen, Thibodeau & Seiler, P. A., 811 Norwest Center, 230 West Superior Street, Duluth, MN 55802 (for respondent)

Norbert B. Traxler, Christopher A. Neisen, O'Neill, Traxler, Zard, Neisen & Morris, Ltd., Law Building, 222 East Main Street, Post Office Box 105, New Prague, MN 56071 (for appellant and defendant)

Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.


TOUSSAINT, Chief Judge

Appellant Leon Pecha challenges the district court's judgment that he is personally liable for unpaid obligations to respondent Preferred Foods Concepts, Inc. (Preferred). Because Pecha personally guaranteed the debts of L&M Yogurt, Inc. (L&M), which, in turn, had assumed certain contractual obligations to Preferred, we affirm.


On appeal from summary judgment, this court must determine whether there are any genuine issues of material fact and whether the district court correctly applied the law. Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). In the present case, whether Pecha is personally liable to Preferred is a question of law, which this court reviews de novo. See Hibbing Educ. Ass'n v. Public Employment Relations Bd., 369 N.W.2d 527, 529 (Minn. 1985) (court conducts de novo review of questions of law).


Generally, the construction and effect of a contract are questions of law. Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 66 (Minn. 1979) (citing Ring v. Minnesota Road Builders, Inc., 263 Minn. 391, 395, 116 N.W.2d 582, 585 (1962)). Contract language is given "its plain and ordinary meaning." Reliable Metal, Inc. v. Shakopee Valley Printing, 407 N.W.2d 684, 687 (Minn. App. 1987) (Citing Turner, 276 N.W.2d at 67). Whether a contract is ambiguous is a legal determination. Blattner v.

Forster, 322 N.W.2d 319, 321 (Minn. 1982). A contract is ambiguous when its language is reasonably susceptible of more than one construction. Blackburn, Nickels & Smith, Inc v. Erickson, 366 N.W.2d 640, 644 (Minn. App. 1985), review denied (Minn. June 24, 1985) (citing Employers Liab. Assurance Corp. v. Morse, 261 Minn. 259, 111 N.W.2d 620 (1961)).

Pecha challenges the district court's, conclusion that Pecha personally guaranteed the performance of L&M's obligations to Preferred, arguing he is not personally liable for the contractual obligations that L&M assumed from the contract between Timber and Preferred.[1] We conclude that Pecha's obligation to Preferred through the agreements is clear and unambiguous. Under the October 11, 1989 agreement, Timber was obligated to make payments to Preferred for the Burnsville yogurt business. L&M then assumed Timber's October 11, 1989, obligation to Preferred in the March 7, 1991, purchase agreement. Pecha then "unconditionally guarantee[d] * * * the performance and discharge of all obligations and liabilities of [L&M] arising out of the agreement [dated March 7, 1991]" by signing the guaranty agreement. Based on the language in the various contracts, Pecha is personally liable for the unpaid obligations of L&M to Preferred.


Preferred argues it is entitled to attorney fees and costs on appeal. Attorney fees are recoverable if specifically authorized by contract or statute. Barr/Nelson, Inc. v. Tonto's, Inc., 336 N.W.2d 46, 53 (Minn. 1983). The award of attorney fees on appeal rests within the broad discretion of the appellate court. See Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff'd, 504 N.W.2d 758 (Minn. 1993). In making an award of attorney fees, this court will consider a number of factors, including the time and effort required of the attorney, the complexity of the issues, the value of the interest involved, and the results secured. See Jadwin v. Kasal, 318 N.W.2d 844, 848 (Minn. 1982) (stating accepted factor to be considered in awarding attorney fees). Here, both the purchase agreement signed by L&M and Pecha's guaranty agreement authorize the recovery of attorney fees and costs incurred in enforcing the provisions of the agreements. Preferred was required to defend its right to enforce these agreements on appeal. We conclude that under the purchase agreement and the guaranty agreement, Preferred is entitled to recover attorney fees and costs on appeal. Preferred should submit an affidavit of fees and costs incurred on appeal within 10 days of the filing of this opinion. A further order of this court will address attorney fees and costs.


[ ]1 Preferred argues Pecha's appeal is barred because Pecha appealed from a "motion for reconsideration." See Welch v. Commissioner of Pub. Safety, 545 N.W.2d 692, 694 (Minn. App. 1996) (rules of civil procedure do not authorize motions for reconsideration). Preferred is incorrect. Because the original judgment reserved the issue of attorney fees and did not make an express determination that it was a final appealable judgment, the 90-day appeal period did not begin to run until the entry of the amended judgment finally adjudicated all the issues, including attorney fees. American Family Mut. Ins. Co. v. Peterson, 380 N.W.2d 495, 497 (Minn. 1986).