ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DUCKS & DUCKS, INC.

APPELLANT

v.

DRAINAGE DISTRICT # 7 OF

POINSETT COUNTY

APPELLEE

DIVISION II

CA02-1375

June 18, 2003

APPEAL FROM POINSETT COUNTY CIRCUIT COURT

[NO. E2001-122]

HONORABLE CHARLES DAVID BURNETT, CIRCUIT JUDGE

REVERSED AND REMANDED

Ducks & Ducks, Inc. (Ducks) appeals from the trial court's order granting summary judgment to Drainage District #7 of Poinsett County (the District), in an action Ducks filed to enforce an agreement it entered into for lease of property owned by the District for the purpose of duck hunting. The trial court found that the parties had not agreed about the meaning of the term "private hunting club" as used in the lease, and that there had thus not been a meeting of the minds to support the creation of a valid contract. On appeal, Ducks argues that the trial court erred in granting summary judgment where there were material issues of fact remaining, and that it was error to grant summary judgment as a matter of law where a contract term is ambiguous. We agree that the trial court erred in granting summary judgment and reverse and remand.

Dutch Noe, president of Ducks, approached the District in August 2000 about leasing an 11-mile-long, 400-foot-wide strip of land along a portion of the St. Francis Floodway levee owned by the District. Ducks wanted to operate a private hunting club on the land. The strip had been used by the public for fishing, and also hunting, in prior years.

Noe began a commercial hunting business more than ten years ago. Before leasing the District's property, Ducks operated commercial shooting resorts at various locations under a permit from the Arkansas Game and Fish Commission (AGFC). Ducks took paying customers on guided duck and pheasant hunts during the six-month period from October to the end of March. Noe intended to expand that commercial hunting business with the lease of the District's property. Noe also intended to raise and train young ducks on the leased property to facilitate Ducks's commercial hunting operations.

Noe and the District discussed Ducks's proposal at the District's August 2000 board meeting, and the parties executed a Lease Agreement on September 10, 2000. The Lease Agreement provided that Ducks would use the land as a "private hunting club" for a period of five years, that the public would retain access to the roadway on top of the levee, and that the District could cancel the lease if Ducks failed to perform under the terms of the lease. The parties further agreed that the District "shall be the final authority on any question" about whether Ducks had performed under the terms of the lease.

Within a month of executing the lease, the District learned that AGFC regulations required Ducks to obtain a new commercial shooting resort permit to legally offer and orchestrate commercial hunts on the District's property. Although Noe never placed any pheasant on the property, it is undisputed that Ducks operated commercial duck hunts on the property during the 2000-2001 regular hunting season. Local citizens also began complaining that Ducks had postedno-trespassing signs around the property. It is undisputed that at least three of those signs specifically stated that the property was an AGFC-sanctioned commercial shooting resort.

Noe attended the October and November meetings of the District's board. At those meetings, Noe acknowledged that the AGFC refused to issue a commercial shooting resort permit for the property. The AGFC denied Ducks's permit request out of concerns for public safety, noting that the roadway on top of the levee was heavily traveled and that shotgun pellets could easily travel beyond the 400-foot strip of land encompassed by the lease. Although Noe sought administrative review of the AGFC's denial, Administrative Hearing Officer Jack Holt Jr. affirmed the denial of the permit.

At its November 15, 2000, special meeting, the District voted to cancel Ducks's lease. Under the terms of the lease, the District sent Ducks written notification of the lease cancellation. The District's letter enumerated several bases for the cancellation. The District determined that Ducks had failed to "obtain appropriate authorization" for the operation of a private hunting club. Also, the District determined that Ducks's posting of non-trespassing signs on the property violated the terms of the lease. Moreover, the District canceled the lease because of "the potential for physical harm to the public that would use the access road on top of the levee and access to fishing" around the property. The District allowed Ducks to remain in possession of the property until March 31, 2001.

Ducks filed the present lawsuit two weeks before it was to vacate the premises, seeking a declaration of the validity of the lease. The District answered and filed a motion for summary judgment, arguing that Ducks could not legally fulfill the purpose of the lease because the AGFC denied its request for a commercial shooting resort permit. Alternatively, the District argued that Duck's posting of no-trespass signs violated the lease and triggered its cancellation rights. Inresponse to the District's motion, Ducks argued that the lease stated that Ducks would operate a private hunting club, that private hunting clubs are different than commercial shooting resorts, that no permit was required for its use of the property as a private hunting club, and that the District must therefore honor the lease.

The trial court heard the District's motion in September 2002. The District read portions of Noe's deposition into the record. Ducks initially objected to the reading, but withdrew its objection after the trial court indicated that Ducks would be allowed to read deposition testimony into the record as well. Ducks read into the record portions of the deposition testimony of Richard Woodruff, then Chairman of the District's board. After the hearing, the trial court ruled that Ducks intended to operate a commercial shooting resort on the property and that the lease agreement used the term "private hunting club." The trial court stated that the issue was whether the parties, when negotiating the original contract, had a "meeting of the minds" or were "suffering from a patent ambiguity on the face of the contract itself." The trial court found that there was a vast difference between a private hunting club and a commercial shooting reserve, and that no "meeting of the minds" occurred to support a valid contract. The trial court entered an order granting the District's motion for summary judgment. Ducks appeals from this order.

On appeal, Ducks argues that the trial court erred in granting the motion for summary judgment where there was a material issue of fact and the pleadings and exhibits were insufficient to suggest a summary judgment as a matter of law. Ducks contends that the construction of the term "private hunting club" is a matter of law for the trial court to determine only if the term is free of ambiguity. Ducks contends that a private hunting club can also be a commercial shooting resort, that there is no mention of a commercial shooting resort or that Ducks would have to obtain a permit from AGFC in the lease, that the District prepared the lease, and that any ambiguity should bestrictly construed against the District. In the alternative, Ducks contends that if the trial court believed the lease was ambiguous, then a disputed question of fact existed as to the meaning of "private hunting club," and summary judgment was inappropriate. Ducks also argues that the evidence as to the measures Ducks took to limit public access to the roadway by the posting of signs is also a question of fact that is in dispute. Ducks contends that these signs did not violate the terms of the lease because they did not attempt to prohibit public use of the roadway. We agree with both points.

Summary judgment should be granted only upon proof that no genuine issue of fact exists. Ford v. Cunningham, 291 Ark. 56, 722 S.W.2d 567 (1987). The burden of proving that no genuine issue of fact exists is on the moving party. Id. All proof must be reviewed in the light most favorable to the nonmoving party and all inferences decided against the moving party. Id.

Summary judgment is not proper "where evidence, although in no material dispute as to actuality, reveals aspects from which inconsistent hypothesis might reasonably be drawn and reasonable minds might differ." Thomas v. Sessions, 307 Ark. 203, 208, 818 S.W.2d 940, 943 (1991). The object of summary-judgment proceedings is not to try the issues, but to determine if there are any issues to be tried, and if there is any doubt whatsoever, the motion should be denied. Id. (citing Rowland v. Gastroenterology Assoc., P.A., 280 Ark. 278, 657 S.W.2d 536 (1983)).

In Wallace v. Broyles, 332 Ark. 189, 961 S.W.2d 712 (1998), the supreme court stated that it would not engage in a "sufficiency of the evidence" determination in summary judgment cases.

However, when there is no material dispute as to the facts, the court will determine whether "reasonable minds" could draw "reasonable" inconsistent hypotheses to render summary judgment inappropriate. In other words, when the facts are not at issue but possible inferences therefrom are, the court will consider whether those inferences can be reasonablydrawn from the undisputed facts and whether reasonable minds might differ on those hypotheses.

Flentje v. First Nat. Bank of Wynne, 340 Ark. 563, 570, 11 S.W.3d 531, 536 (2000).

In regard to the construction of terms of an agreement, the initial determination of the existence of an ambiguity rests with the court. Fryer v. Boyett, 64 Ark. App. 7, 11, 978 S.W.2d 304, 306 (1998); Wedin v. Wedin, 57 Ark. App. 203, 944 S.W.2d 847 (1997). When a contract is unambiguous, its construction is a question of law for the court. Fryer, supra.; Rowland v. Faulkenbury, 47 Ark. App. 12, 883 S.W.2d 848 (1994); Moore v. Columbia Mut. Cas. Ins. Co., 36 Ark. App. 226, 821 S.W.2d 59 (1991). A contract is unambiguous and its construction and legal effect are questions of law when its terms are not susceptible to more than one equally reasonable construction. Fryer, supra; Singh v. Riley's, Inc., 46 Ark. App. 223, 878 S.W.2d 422 (1994). When contracting parties express their intention in a written instrument in clear and unambiguous language, it is the court's duty to construe the writing in accordance with the plain meaning of the language employed. Fryer, supra; Hampton Road, Inc. v. Miller, 18 Ark. App. 9, 708 S.W.2d 98 (1986). Different clauses of a contract must be read together and the contract construed so that all of its parts harmonize, if that is at all possible. Pate v. U.S. Fidelity & Guar. Co., 14 Ark. App. 133, 685 S.W.2d 530 (1985).

Moreover, in Elam v. First Unum Life Insurance Co., 346 Ark. 291, 57 S.W.3d 165 (2001), the supreme court stated:

Our case law demonstrates that where there is a dispute as to the meaning of a contract term or provision, be it an insurance or other contract, the trial court must initially perform the role of gatekeeper, determining first whether the dispute may be resolved by looking solely to the contract or whether the parties rely on disputed extrinsic evidence to support their proposed interpretation. As Justice George Rose Smith explained, "[t]he construction and legal effect of written contracts are matters to be determined by the court, not by the jury, except when the meaning of the language depends upon disputed extrinsic evidence." Id. at 60, 632 S.W.2d at 421 (emphasis added). Thus, where the issue ofambiguity may be resolved by reviewing the language of the contract itself, it is the trial court's duty to make such a determination as a matter of law. On the other hand, where the parties go beyond the contract and submit disputed extrinsic evidence to support their proffered definitions of the term, this is a question of fact for the jury. In the latter situation, summary judgment is not proper. (Emphasis in original.)

Id. at 297, 57 S.W.3d at 169-170. This court has also held that where there is any doubt about the meaning of language in a written instrument, there is an issue of fact to be litigated and summary judgment is particularly inappropriate in that instance. Carver v. Allstate Ins. Co., 77 Ark. App. 296, 76 S.W.3d 901 (2002), citing Moore v. Columbia Mut. Cas. Ins. Co., 36 Ark. App. 226, 821 S.W.2d 59 (1991); Camp v. Elmore, 271 Ark. 407, 609 S.W.2d 86 (Ark. App. 1980).

Here, the trial court found the term "private hunting club" to be ambiguous, and considered extensive extrinsic evidence in rendering summary judgment, including deposition testimony, exhibits, AGFC proceedings, and records of District meetings. The trial court considered extrinsic evidence in both construing the term "private hunting club," and on the question of whether Ducks had breached the lease by restricting access to the public or by failing to obtain a permit from AGFC. However, the trial court ruled only that the lease was void for failure of the parties to reach a meeting of the minds. In accordance with Elam v. First Unum Life Insurance Co., supra, and Carver v. Allstate Insurance Co., supra, we reverse and remand for trial on the merits.

Reversed and remanded.

Vaught and Baker, JJ., agree.