Opus Corporation, a Minnesota Corporation, Plaintiff--appellant, v. International Business Machines Corporation, a New Yorkcorporation, Defendant--appellee, 141 F.3d 1261 (8th Cir. 1998)

We emphasize that summary judgment is prohibited only when material facts are genuinely in dispute. The Supreme Court has said:

[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.... Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.

Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2510.

B. The Meaning of "Recourse"

The district court believed the words "recourse obligation," in the context of article 3.2(f) of the partnership agreement, meant an obligation secondarily owed by a partner because of the partnership's primary liability to pay the obligation. Since the partnership was never obligated to pay the First Bank leases, the district court held that such obligations were not "recourse obligations" of Opus. Rather, the First Bank liabilities were direct obligations of Opus to First Bank. As a result, the indemnity provision of article 3.2(f) did not apply.

The district court reached this conclusion by applying three Minnesota principles of construction. We agree with the district court that the following principles of law apply. First, the construction and effect of an agreement raise questions of law. Turner v. Alpha Phi Sorority House, 276 N.W.2d 63, 66 (Minn.1979).⁵  Second, "the fundamental approach ... is to allow the intent of the parties to prevail." Id. Finally, courts must avoid an interpretation that would render a provision meaningless. Chergosky v. Crosstown Bell, Inc., 463 N.W.2d 522, 526 (Minn.1990).

The district court had many reasons for its decision. Those reasons can be summarized as follows: (1) some dictionary definitions supported the court's construction; (2) Opus's construction of the words would render a term superfluous; (3) the agreement gave examples of recourse obligations and Opus's obligations to First Bank did not fit those examples; and (4) Opus's construction of the words would create the bizarre result that Opus could ignore a capital call yet be indemnified for all expenses (from postage to legal bills) associated with the business of the partnership.

Opus argues that the district court's construction is too narrow. Instead, Opus insists the words "recourse obligation" of a partner really mean "any obligation" of a partner if it is "in connection with the Partnership business." Opus asserts that it would not have entered the partnership if it had known it could suffer a "cram down" and still have to pay First Bank.

We disagree with Opus for all the reasons carefully articulated by the district court. Two points in particular persuade us that Opus's arguments are without merit.

Initially, under Minnesota law we are obligated to avoid a contract interpretation that would render a provision of the contract meaningless. Chergosky, 463 N.W.2d at 526 ("Because of the presumption that the parties intended the language used to have effect, we will attempt to avoid an interpretation of the contract that would render a provision meaningless.") See also Santillan v. Martine, 560 N.W.2d 749, 751 n. 1 (Minn.App.1997); Carlson Real Estate Co. v. Soltan, 549 N.W.2d 376, 379 (Minn.App.1996). Consequently, we must attempt to give meaning to the word "recourse"; Minnesota law does not permit us to ignore the word.

If we assume that "recourse" has a meaning, then it is evident that "recourse" limits the reach of the word "obligations." In other words, IBM does not have a responsibility to indemnify Opus for "obligations"; IBM has a responsibility to indemnify Opus for "recourse obligations." Interpreting "recourse obligations" to mean "any obligations," and not solely those obligations flowing from the partnership to a partner, makes the word "recourse" superfluous.

Secondly, the partnership agreement specifically lists examples of the types of obligations considered "recourse." For example, listed as a "recourse obligation" was IBM's completion guaranty and Opus's indemnity agreement with IBM regarding that guaranty.

These examples describe situations where liability flows from the partnership, as the primary obligor, to the partner, as the secondarily liable party. In these situations the partner has no liability unless the partnership first negotiates and incurs a liability. As a result, obligations that are direct, like Opus's obligations to First Bank, are not a "recourse obligations" contemplated by the indemnity provision of the partnership agreement.

Opus tries to avoid the force of the district court's reasoning by making numerous arguments. While we compliment Opus for the quality of its advocacy, we reject each of those arguments. In fact, we find it unnecessary to engage in an extended discussion of them. However, four of Opus's arguments warrant a brief response.

Opus argues case law and dictionary definitions can be found that in the abstract support its construction of the word "recourse." While we do not dispute Opus's assertion, it is not persuasive. The question here is the meaning of the word "recourse" in a particular section of a particular partnership agreement. We are not moved by definitions wrenched from one context and grafted onto another. See, e.g., Republic Nat'l Ins. Co. v. Lorraine Realty Corp., 279 N.W.2d 349, 354 (Minn.1979) ("Intent is 'ascertained, not by a process of dissection in which words or phrases are isolated from their context, but rather from a process of synthesis in which the words and phrases are given meaning in accordance with the obvious purpose of the ... contract as a whole.' " (quoting Cement, Sand & Gravel Co. v. Agricultural Ins. Co., 225 Minn. 211, 216, 30 N.W.2d 341, 345 (Minn.1947))).

Opus also contends that the listed examples of "recourse" obligations in the partnership agreement are really "direct" obligations. Opus claims that some IBM guarantees issued to third parties characterized those obligations as "direct" obligations to the creditors. Hence, Opus argues that the First Bank obligations are just like the IBM guarantees. This argument fails to recognize, however, that in the guaranty situation the partner has no liability to the creditor unless the partnership first negotiates and incurs liability to the creditor. This is not true with Opus's obligations to First Bank.

In addition, Opus asserts that the "First Bank West" agreement directly obligated the partnership to First Bank.⁶  Thus, Opus argues that the indemnity provision ought to apply to all the First Bank agreements because the district court's interpretation of the word "recourse" is inconsistent with the structure of the "First Bank West" agreement. In other words, Opus argues that the partnership was primarily liable to First Bank at least insofar as the "First Bank West" situation was concerned, and, as a result, "recourse" cannot mean what the district court said it did. We disagree.

After Opus completed its separate negotiations with First Bank, and to give Opus a tax advantage, the partnership, at Opus's request, agreed to act as a conduit for payments to First Bank on the "First Bank West" obligations. Accordingly, the partnership and First Bank executed a "reimbursement agreement" pursuant to which the partnership paid First Bank $1,526,762. This payment was made to First Bank to reimburse First Bank for up to one-half the cost of buying out the bank's leases in "First Bank West." The partnership agreement, in turn, provided that Opus would make an equal cash contribution to the partnership so the partnership could pay First Bank.

The structure of the "First Bank West" deal does not change the fundamental character of the relationship between First Bank and Opus. Opus expected to and did deal separately and directly with First Bank. Without IBM, Opus and First Bank made their own deal, a deal that included "First Bank West." Moreover, if profits were to be made from Opus's agreement with First Bank, Opus had no responsibility to share them with IBM. The accommodation to Opus by the partnership, wherein the partnership served as a conduit for a payment to First Bank, does not alter the reality of Opus's direct relationship with First Bank. Accordingly, the "First Bank West" transaction is consistent with the district court's interpretation of the word "recourse."

Opus further argues that the testimony of various Opus representatives demonstrates that Opus and IBM intended article 3.2(f) to apply to Opus's obligations to First Bank. There is a simple answer to this assertion. When the language in an agreement is unambiguous, there is no normally no need to use parole evidence. See In Re Hennepin County 1986 Recycling Bond Litig., 540 N.W.2d at 498 (stating " [t]he court generally does not consider extrinsic evidence when determining contractual ambiguity"). Parole evidence was unnecessary because the terms of the agreement were not ambiguous.⁷ 

In summary, the district court's interpretation of article 3.2(f) was correct; that is, article 3.2(f) means that an obligation secondarily owed by a partner because of the partnership's primary liability to pay the obligation is the subject of indemnification if there is a "cram down." Therefore, IBM had no obligation to indemnify Opus for the First Bank obligations since those obligations were direct obligations for which the partnership had no liability. As a result, the district court's decision to grant summary judgment to IBM will be affirmed.

The business judgment rule adopted by the parties is the "prism" through which the breach of fiduciary duty claim must be judged. Washington Bancorporation v. Said, 812 F. Supp. 1256, 1267-71 (D.D.C. 1993) (applying the "business judgment rule" for purposes of summary judgment regarding gross negligence and breach of fiduciary duty claims asserted against bank directors and stating the plaintiff's allegations "did not overcome the presumption inherent in the business judgment rule" (quoting Anderson, 477 U.S. at 247-48, 106 S. Ct. at 2509-10)). See also Bane v. Ferguson, 890 F.2d 11, 14 (7th Cir. 1989) (where a partnership was forced to dissolve, causing a termination in the retirement benefits of a retired partner, dismissal of fiduciary duty claim would alternatively be upheld under the "business judgment rule"). (Posner, J.) When we look through the "business judgment" prism, it is apparent no reasonable finder of fact could conclude that IBM breached its fiduciary duty as a general partner.

Before turning to Opus's specific arguments, we address two general issues. Opus claims the business judgment rule is irrelevant to a fiduciary duty claim under Minnesota law. Opus further asserts, at least in its complaint, that "either before or shortly after the parties entered into the Partnership Agreement, IBM conspired with the parties and its affiliated corporations and undertook a series of covert actions that were designed to eliminate Opus as a partner and damage or defeat Opus' partnership interest."

We disagree that the "business judgment" rule is irrelevant under Minnesota law. Minnesota law grants equally sophisticated partners the right to place in their equally sophisticated limited partnership agreement a "business judgment rule" that defines the context against which the ever-present fiduciary duty of the partners will be judged. See, e.g., Minn.Stat. § 322 A. 33 (a general partner of a limited partnership "has the rights and powers and is subject to the restrictions" of "the partnership agreement" and the statutes); Minn.Stat. § 323.17 (stating the "rights and duties of the partners in relationship to the partnership" are "subject to any agreement between them"); Appletree Square I v. Investmark, Inc., 494 N.W.2d 889, 893 (Minn.App.1993) (stating while partners are not free to destroy the fiduciary character of a partnership, " [p]artners may change their common law and statutory duties by incorporating such changes in their partnership agreement"); Midland Nat'l Bank v. Perranoski, 299 N.W.2d 404, 412-13 & n. 10 (Minn.1980) (stating for partnerships the "fiduciary's duty must be defined with reference to the experience and intelligence of the person to whom the duty is owed" and holding that experienced investor-partners are presumed to have read their partnership agreement). See also Cmt., Elisa Feldman, Your Partner's Keeper: The Duty of Good Faith and Fair Dealing Under the Revised Uniform Partnership Act, 48 SMU L.Rev.1931, 1955-56 (1995) (collecting and discussing cases that apply the business judgment rule to partnerships).⁸ 

In addition, we find no evidence that would permit a reasonable finder of fact to conclude IBM "conspired" with anyone to harm Opus. In fact, we note that when one of IBM's consultants suggested Opus be removed as a leasing manager, IBM refused. The absence of such evidence explains why Opus tacitly elected to drop the conspiracy claim alleged in its complaint when it was confronted with IBM's motion for summary judgment. Instead of relying on the conspiracy theory, Opus pursued a strategy of attacking other alleged acts or omissions of IBM alone. We now turn to those additional arguments.

Opus claims IBM breached its fiduciary duty because: (1) IBM mismanaged the project; (2) IBM engaged in "self-dealing"; (3) IBM failed to disclose material partnership information; and (4) IBM used "abrasive and intimidating tactics." For all the reasons set forth in the detailed opinions of the district court, we agree that summary judgment was appropriately granted on these claims. Again, while a few observations are in order, a detailed discussion of the issues is unnecessary.

It must be remembered that Opus was not merely a limited partner. On the contrary, Opus was the general contractor and leasing agent, and one of its affiliates was the property manager. In these separate capacities, IBM owed Opus no fiduciary duty as a partner. Moreover, in these capacities Opus admittedly had access to vast amounts of information. In fact, Opus sometimes had information needed by IBM. Still further, because of these roles, Opus participated in many important decisions regarding the project. We stress, therefore, that this case does not present a situation where an "absentee limited partner" with almost no way to inform and protect itself is allegedly subjected to overreaching by a general partner. That said, we briefly discuss Opus's claims.

With regard to the "mismanagement claim," Opus fell far short in presenting evidence that IBM was "grossly negligent," and "gross negligence" was the standard the partners picked when they wrote the "business judgment rule." For example, the employment of allegedly inexperienced people, or the alleged failure to reduce rents, or the claimed failure to secure a long-term lender, or the alleged desire to erect an overly fancy building do not amount to gross negligence when, as here, it is undisputed that IBM devoted vast amounts of time, talent, and money to the project. See, e.g., High v. Supreme Lodge of the World, 214 Minn. 164, 170, 7 N.W.2d 675, 679 (Minn.1943) (stating gross negligence is " [n]egligence of the highest degree"). Perhaps IBM made mistakes, but no reasonable finder of fact could decide it was grossly negligent.

Regarding the "self-dealing" claim, there is nothing but speculation to support it. Given the staggering losses sustained by IBM, Opus cannot show that IBM deprived it of a "benefit" or "profit," and such a showing is critical to that claim. See, e.g., Minn.Stat. § 323.20 (stating a partner is accountable as a "fiduciary" for "benefits" and "profits" belonging to the partnership).

Opus claims IBM did not give it "material" information, thus breaching its fiduciary duty of disclosure. See, e.g., Appletree Square I. v. Investmark, Inc., 494 N.W.2d at 892-93 (failure of general partners who sold building to limited partners to disclose presence and danger of asbestos amounted to breach of fiduciary duty precluding summary judgment (citing Minn.Stat. § 322.28(2))). We assume, as Opus claims, that IBM failed to give Opus information such as internal financial documents and information concerning IBM's dealings with two consultants. Nevertheless, this information showed what Opus already knew; that is, the documents revealed that the partnership was going to need more money and Opus was obligated to provide capital if a call for capital was made. Simply stated, the information was not "material" as a matter of law because there was no showing that Opus would have done anything differently had it possessed information that only confirmed what it knew as an active participant in the project. Accordingly, no breach of a fiduciary duty can arise from a partner's failure to provide information that was not "material."

Finally, Opus claims IBM employees engaged in "abrasive and intimidating tactics" that breached IBM's fiduciary duty to Opus. For example, Opus points out that an IBM employee "read the riot act" to Opus's chief executive. We assume that where one partner is weak and the other is strong, "abrasive and intimidating tactics" may breach a fiduciary duty. See Evans v. Blesi, 345 N.W.2d 775, 778-80 (Minn.App.1984) (holding that a "partner" in a closely held corporation breached his fiduciary duty to the other "partner" by the tactics he used to obtain control of the corporation; "partner" shouted, slammed the door, and threatened to dissolve the corporation; the abused "partner" suffered from "high blood pressure, very high anxiety and tremors in his hands"). However, because of Opus's significant strength, experience, and knowledge, no reasonable finder of fact could conclude that the tactics employed by IBM amounted to a breach of fiduciary duty under Minnesota law.

In painstaking detail, the district court considered IBM's motion for summary judgment and Opus's defense to the motion. After carefully reviewing both the facts and the law, and giving Opus the inferences due it, we are convinced that the district court correctly granted summary judgment. Accordingly, the district court's decision granting summary judgment in favor of IBM is affirmed.