Patrick J. Booth and Juanita P. Booth v. Riverside Marine Remanufacturers, Inc.
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DIVISION II
CA07119
November 14, 2007
PATRICK J. BOOTH and
JUANITA P. BOOTH
APPELLANTS
v.
RIVERSIDE MARINE
REMANUFACTURERS, INC.
APPELLEE
AN APPEAL FROM PULASKI COUNTY
CIRCUIT COURT
[No. CV039863]
HONORABLE TIMOTHY D. FOX,
CIRCUIT JUDGE
REVERSED AND REMANDED
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This is the second appeal in this breachofcontract case. Following remand from the
first appeal, appellee Riverside Marine Remanufacturers, Inc., moved for summary judgment.
The Pulaski County Circuit Court granted the summary judgment and appellants Patrick
Booth (Pat) and Patsy Booth (Patsy) bring this appeal, asserting that there are genuine issues
of material fact remaining. We agree and reverse and remand.
The following background is taken from the earlier opinion.
Pat founded Riverside in the 1970s and was its majority shareholder. [His
son,]Tom was the only other shareholder. In August 2001, Pat entered into a stock
purchase agreement with Riverside and Tom whereby he would sell 169 shares to
Tom. Riverside would redeem another 120 shares. Also as part of the sale, Pat and
Riverside entered into a consulting agreement which provided, inter alia, that Pat
would receive “[c]ompany paid health insurance for he and his wife and such health
insurance shall continue for the life of [Pat] and the life of [Pat’s] wife, Patsy Booth.”
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Riverside Marine Remfrs., Inc. v. Booth, 93 Ark. App. 48, 216 S.W.3d 611 (2005).
The consulting agreement further provided that it would expire upon Pat’s death,
provided that Riverside would continue health insurance coverage for Patsy until her
death. The consulting agreement was specifically mentioned in the stock purchase
agreement and incorporated by reference therein.
In July 2002, Riverside’s insurance agent, with Tom’s approval, wrote a letter
to Pat, stating that, because Pat was not a fulltime Riverside employee, it was illegal
under federal law to carry him on Riverside’s group policy. The letter also suggested
alternative coverages. On February 20, 2003, Tom notified Riverside’s insurance
carrier that, effective March 1, 2003, Pat and Patsy were to be dropped from the
group policy. Pat and Patsy obtained other coverage, for which Riverside has
continued to pay.
Pat and Patsy filed suit against Riverside in August 2003, alleging that
Riverside had breached the consulting agreement by providing less favorable benefits.
The complaint sought damages for their additional outofpocket expenses, together
with specific performance of the consulting agreement. In the alternative, they sought
reformation of the consulting agreement. Riverside answered, denying that it had
breached the consulting agreement and stating that the agreement required only that
it provide health coverage, not group coverage.
93 Ark. App. at 4950, 216 S.W.3d at 61213.
Following remand, Riverside moved for summary judgment, asserting that the
consulting agreement’s provision regarding “company paid health insurance” was
unambiguous and did not require a particular type or level of insurance. The motion also
asserted that Riverside had continued to pay for the Booths’ health insurance. The Booths
responded by asserting that the consulting agreement was ambiguous and that there were
material issues of fact to be determined. In their response, the Booths presented testimony
from the earlier bench trial to the effect that Pat and Riverside agreed that the insurance
benefits would remain at the same level as the group coverage that was in effect at the time
the consulting agreement was executed. Riverside presented testimony that there was never
any discussion that the coverage would be equal to or better than the group coverage in effect
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in August 2001. It also presented testimony that there was a conscious decision made not to
specify the level of benefits because it could later bind Riverside with respect to the level of
coverage it provided its employees.
On October 11, 2006, the circuit court entered an order finding that the phrase
“company paid health insurance” was not inherently ambiguous; that the phrase did not
contain a latent ambiguity; and that there was no mutual mistake in the drafting of the
provision. The court also found that it was undisputed that Riverside has at all relevant times
paid for health insurance for the Booths. Accordingly, the court granted Riverside’s motion
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for summary judgment and dismissed the complaint. The Booths timely appealed.
The Booths raise two points on appeal, contending that the circuit court erred in
finding that the consulting agreement was unambiguous and that the circuit court erred in
finding that there was no clear and convincing evidence of mistake.
Summary judgment is appropriately granted by a circuit court only when there are no
genuine issues of material fact to be litigated, and the party is entitled to judgment as a matter
of law. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998). Once the moving party has
established a prima facie entitlement to summary judgment, the opposing party must meet
proof with proof to demonstrate the existence of a material issue of fact. Id. On appellate
review, this court determines if summary judgment was appropriate based on whether the
2
The circuit court subsequently awarded Riverside attorney’s fees and costs of
$36,934.50. The Booths filed an amended notice of appeal from the fee award. However,
they do not make a separate argument as to the fee issue. Instead, they note that, if the
summary judgment is reversed, Riverside is no longer the prevailing party and would not be
entitled to fees.
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evidentiary items presented by the moving party in support of the motion leave a material
fact unanswered. Id. This court reviews the evidence in a light most favorable to the party
against whom the motion was filed, resolving all doubts and inferences against the moving
party. Id. Our review focuses not only on the pleadings but also on the affidavits and other
documents. Id.
In their first point on appeal, the Booths argue that the phrase “company paid health
insurance” is ambiguous. Riverside argues, and the circuit court agreed, that the term is not
ambiguous. Based on its finding that the term was unambiguous, the circuit court concluded
that Riverside had not breached the agreement because it had continued to pay for health
insurance for the Booths. However, in concluding that Riverside had not breached the
consulting agreement, the circuit court went too far in deciding the motion for summary
judgment because the Booths’ claim is that Riverside breached the consulting agreement by
failing to provide the same level of benefits as existed at the time of the execution of the
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consulting agreement. The Booths’ claim cannot be decided simply by reference to the
agreement because that agreement is silent on the level of benefits to be provided. By its
silence on this term, the contract as a whole was rendered ambiguous. See Lee v. Hot Springs
Vill. Golf Schs., 58 Ark. App. 293, 951 S.W.2d 315 (1997). The ambiguity is heightened
because the phrase “and such health insurance shall continue for the life of [the Booths]”
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This reliance on a certain level of benefits serves to distinguish the present case from
Twombly v. Association of Farmworker Opportunity Programs, 63 F. Supp. 2d 69 (D. Me.
1999), rev’d in part on other grounds, 212 F.3d 80 (1st Cir. 2000), relied upon by Riverside.
In Twombly, the district court noted that, in opposing a motion for summary judgment, the
plaintiff/employee did not offer any proof that she contemplated a certain level of benefits
in the coverage provided. 63 F. Supp. 2d at 7273.
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could refer to the group coverage in effect at the time of the agreement. However, it could
also refer to new insurance that was to be purchased under the consulting agreement, which
would not necessarily be group coverage. And, because there is ambiguity in the contract,
a question of fact remains as to the parties’ intent. Id. Therefore, the circuit court erred in
granting Riverside’s motion for summary judgment. Id.
Because we reverse on the Booths’ first point, we need not address their second point
concerning mutual mistake.
Reversed and remanded.
HART and MILLER, JJ., agree.
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