PREWITT, Judge.
Plaintiff-Appellant sought damages for breach of contract. The trial court entered summary judgment adverse to Plaintiff, as to two counts of the second amended petition. The court found “no just reason for delay,” making the order appealable. See Rule 74.01(b). Plaintiff appeals.1
Summary judgment is an issue of law which an appellate court reviews de novo on the record submitted. Slankard v. Thomas, 912 S.W.2d 619, 622 (Mo.App.1995). The record is reviewed in the light most favorable to the party against whom the summary judgment was entered. Wimberly v. Furlow, 869 S.W.2d 314, 315 (Mo.App.1994). The party seeking summary judgment must show a right to judgment based on undisputed facts. Id.
John E. Ferguson, III (Ferguson III) owned more than eighty percent of the shares of Ferguson Manufacturing, Inc, On January 10, 1989, he agreed to sell the shares to Defendant Wozniak Industries, Inc., pursuant to a “Stock Purchase Agreement.” Exhibit B to that- agreement was a “Purchase Money Promissory Note.” As provided in the agreement and the note, the stock purchased was pledged as security for the payment provided in the note, $500,-000.00. Wozniak Industries, Inc. was to pay Ferguson III $500,000.00 over a period of five years. In the event of default on the note, Ferguson III was to receive back the stock.
The agreement provided that Wozniak Industries, Inc. was to “cause” Ferguson Manufacturing, Inc. to pay consulting fees to Ferguson under a pre-existing consulting contract and to maintain Ferguson Manufacturing, Inc.’s net worth at a certain level. It was also to prevent Ferguson Manufacturing, Inc. from going into default on certain loan agreements and to inform Ferguson III prior to selling or disposing of Ferguson Manufacturing, Inc.’s assets.
The second amended petition contended that there was a breach of the terms of the agreement because the net worth dropped below the required amount, the consulting agreement was not paid, Ferguson Manufacturing, Inc. was allowed to default on loans and all of its assets were transferred to a third party without Mr. Ferguson’s consent. Count I sought damages for these breaches. Count II sought the same damages for these breaches based on an “Indemnification” clause in the agreement. Other counts are not relevant to this appeal.
Wozniak Industries, Inc. filed a motion for summary judgment contending that Ferguson Ill’s exclusive remedy for breach of the agreement was the return of the stock, as provided in the note. The trial court granted summary judgment on that basis.
The agreement provided for the law of Illinois to apply. Missouri law recognizes that the parties may choose the state whose law will govern their contractual rights and duties, so long as the application of the law is not contrary to a fundamental policy of Missouri. See Tri-County Retreading, Inc. v. Bandog, Inc., 851 S.W.2d 780, 784 (Mo.App.1993). There is no contention here, and we see none, that indicates that Illinois law is contrary to a fundamental policy of Missouri, [921]*921and in fact, it appears similar, if not identical, to Missouri law.
The parties, of course, may contract for an exclusive remedy that limits their rights, duties, and obligations. Board of Regents v. Wilson, 27 Ill.App.3d 26, 326 N.E.2d 216, 220 (1975). For that to occur, the contract must clearly indicate the intent of the parties to make the stipulated remedy exclusive. Id. A provision for one remedy does not mean that other remedies are unavailable. See, e.g., Structural Sales, Inc. v. Vavrus, 132 Ill.App.3d 718, 87 Ill.Dec. 619, 621, 477 N.E.2d 745, 747 (1985).
Respondent refers us to Section 2 of the Stock Purchase Agreement which contains certain procedures and remedies. Section 2(c) provides that AppeUant “shaU have the right to select among” certain courses of action with respect to the promissory note should Respondent breach the agreement.
In Vavrus, the provision in question stated that the non-breaching party “shaH have the right to complete” the contracted work and prorate the payment. 87 Ill.Dec. at 621, 477 N.E.2d at 747. Relying on Wilson, the Vav-rus court found there was “no indication that either party intended the remedy set out [above] to be the exclusive remedy in case of material violation” of the contract. Id.
Here, an examination of Section 2 does not reveal any language which clearly indicates that no other remedies are avaüable. There is a remedy provided, but no statement that other remedies are prohibited. Without such a provision, Plaintiffs rights are not limited. Section 2 of the agreement is set forth in fuH below.2
Respondent also contends that Section 2 of the agreement makes the remedy in [922]*922the “note” the only remedy available to Plaintiff. The language that Plaintiff relies on in the note is also set forth marginally.3
This language provides the remedy for the obligations of the note, that is $500,000.00. It does not, however, provide what the remedy would be for any other breach of Defendant’s obligations. Appellant asserts that the documents must be construed together because they were all made as a part of one transaction, citing McDonald’s Corp. v. Butler Co., 158 Ill.App.3d 902, 110 Ill.Dec. 735, 740, 511 N.E.2d 912, 917 (1987).
Contract language is not rendered ambiguous by the parties’ failure to agree upon its meaning. Schoeneweis v. Herrin, 110 Ill.App.3d 800, 66 Ill.Dec. 513, 518, 443 N.E.2d 36, 41 (1982). Where the terms of a contract are clear the meaning is determined from the language of the agreement. LaSalle Nat’l Trust, N.A. v. ECM Motor Co., 76 F.3d 140, 144-45 (7th Cir.1996) (applying Illinois law). See also General Electric Capital Corp. v. Equifax Services, Inc., 797 F.Supp. 1432, 1447 (N.D.Ill.1992) (there is no ambiguity if the court can determine the meaning from language used).
The language in the note on which Defendant relies conditions the remedy to that “on this note” or “under this note.” It does not purport to be the remedy, or the only remedy, for other breaches by Defendant. The remedy provided in the note was limited to [923]*923collect the amount provided in the note in the event there was a breach.
Construing the documents together is not necessary to interpret the agreement. The relevant terms are clear and indicate that there was no restriction as to Plaintiffs remedies for breaches other than failure to pay the price of the stock as provided in the note. Thus, Count I was not subject to summary judgment.
Summary judgment was proper as to Count II. It purported to base a cause of action on the “Indemnification” clause of the agreement.
Free access — add to your briefcase to read the full text and ask questions with AI
PREWITT, Judge.
Plaintiff-Appellant sought damages for breach of contract. The trial court entered summary judgment adverse to Plaintiff, as to two counts of the second amended petition. The court found “no just reason for delay,” making the order appealable. See Rule 74.01(b). Plaintiff appeals.1
Summary judgment is an issue of law which an appellate court reviews de novo on the record submitted. Slankard v. Thomas, 912 S.W.2d 619, 622 (Mo.App.1995). The record is reviewed in the light most favorable to the party against whom the summary judgment was entered. Wimberly v. Furlow, 869 S.W.2d 314, 315 (Mo.App.1994). The party seeking summary judgment must show a right to judgment based on undisputed facts. Id.
John E. Ferguson, III (Ferguson III) owned more than eighty percent of the shares of Ferguson Manufacturing, Inc, On January 10, 1989, he agreed to sell the shares to Defendant Wozniak Industries, Inc., pursuant to a “Stock Purchase Agreement.” Exhibit B to that- agreement was a “Purchase Money Promissory Note.” As provided in the agreement and the note, the stock purchased was pledged as security for the payment provided in the note, $500,-000.00. Wozniak Industries, Inc. was to pay Ferguson III $500,000.00 over a period of five years. In the event of default on the note, Ferguson III was to receive back the stock.
The agreement provided that Wozniak Industries, Inc. was to “cause” Ferguson Manufacturing, Inc. to pay consulting fees to Ferguson under a pre-existing consulting contract and to maintain Ferguson Manufacturing, Inc.’s net worth at a certain level. It was also to prevent Ferguson Manufacturing, Inc. from going into default on certain loan agreements and to inform Ferguson III prior to selling or disposing of Ferguson Manufacturing, Inc.’s assets.
The second amended petition contended that there was a breach of the terms of the agreement because the net worth dropped below the required amount, the consulting agreement was not paid, Ferguson Manufacturing, Inc. was allowed to default on loans and all of its assets were transferred to a third party without Mr. Ferguson’s consent. Count I sought damages for these breaches. Count II sought the same damages for these breaches based on an “Indemnification” clause in the agreement. Other counts are not relevant to this appeal.
Wozniak Industries, Inc. filed a motion for summary judgment contending that Ferguson Ill’s exclusive remedy for breach of the agreement was the return of the stock, as provided in the note. The trial court granted summary judgment on that basis.
The agreement provided for the law of Illinois to apply. Missouri law recognizes that the parties may choose the state whose law will govern their contractual rights and duties, so long as the application of the law is not contrary to a fundamental policy of Missouri. See Tri-County Retreading, Inc. v. Bandog, Inc., 851 S.W.2d 780, 784 (Mo.App.1993). There is no contention here, and we see none, that indicates that Illinois law is contrary to a fundamental policy of Missouri, [921]*921and in fact, it appears similar, if not identical, to Missouri law.
The parties, of course, may contract for an exclusive remedy that limits their rights, duties, and obligations. Board of Regents v. Wilson, 27 Ill.App.3d 26, 326 N.E.2d 216, 220 (1975). For that to occur, the contract must clearly indicate the intent of the parties to make the stipulated remedy exclusive. Id. A provision for one remedy does not mean that other remedies are unavailable. See, e.g., Structural Sales, Inc. v. Vavrus, 132 Ill.App.3d 718, 87 Ill.Dec. 619, 621, 477 N.E.2d 745, 747 (1985).
Respondent refers us to Section 2 of the Stock Purchase Agreement which contains certain procedures and remedies. Section 2(c) provides that AppeUant “shaU have the right to select among” certain courses of action with respect to the promissory note should Respondent breach the agreement.
In Vavrus, the provision in question stated that the non-breaching party “shaH have the right to complete” the contracted work and prorate the payment. 87 Ill.Dec. at 621, 477 N.E.2d at 747. Relying on Wilson, the Vav-rus court found there was “no indication that either party intended the remedy set out [above] to be the exclusive remedy in case of material violation” of the contract. Id.
Here, an examination of Section 2 does not reveal any language which clearly indicates that no other remedies are avaüable. There is a remedy provided, but no statement that other remedies are prohibited. Without such a provision, Plaintiffs rights are not limited. Section 2 of the agreement is set forth in fuH below.2
Respondent also contends that Section 2 of the agreement makes the remedy in [922]*922the “note” the only remedy available to Plaintiff. The language that Plaintiff relies on in the note is also set forth marginally.3
This language provides the remedy for the obligations of the note, that is $500,000.00. It does not, however, provide what the remedy would be for any other breach of Defendant’s obligations. Appellant asserts that the documents must be construed together because they were all made as a part of one transaction, citing McDonald’s Corp. v. Butler Co., 158 Ill.App.3d 902, 110 Ill.Dec. 735, 740, 511 N.E.2d 912, 917 (1987).
Contract language is not rendered ambiguous by the parties’ failure to agree upon its meaning. Schoeneweis v. Herrin, 110 Ill.App.3d 800, 66 Ill.Dec. 513, 518, 443 N.E.2d 36, 41 (1982). Where the terms of a contract are clear the meaning is determined from the language of the agreement. LaSalle Nat’l Trust, N.A. v. ECM Motor Co., 76 F.3d 140, 144-45 (7th Cir.1996) (applying Illinois law). See also General Electric Capital Corp. v. Equifax Services, Inc., 797 F.Supp. 1432, 1447 (N.D.Ill.1992) (there is no ambiguity if the court can determine the meaning from language used).
The language in the note on which Defendant relies conditions the remedy to that “on this note” or “under this note.” It does not purport to be the remedy, or the only remedy, for other breaches by Defendant. The remedy provided in the note was limited to [923]*923collect the amount provided in the note in the event there was a breach.
Construing the documents together is not necessary to interpret the agreement. The relevant terms are clear and indicate that there was no restriction as to Plaintiffs remedies for breaches other than failure to pay the price of the stock as provided in the note. Thus, Count I was not subject to summary judgment.
Summary judgment was proper as to Count II. It purported to base a cause of action on the “Indemnification” clause of the agreement. In general, an agreement to indemnify another is an agreement by one person to hold another harmless from loss or damage as may be specified in the agreement or in which the indemnitor promises to reimburse his indemnitee for loss suffered. 42 C.J.S. Indemnity § 2 (1991). Under Illinois law, that loss is generally associated with liability to a third person. See, e.g., Bassick Co. v. Mississippi Valley Erection Co. of Illinois, 104 Ill.App.3d 517, 60 Ill.Dec. 247, 250, 432 N.E.2d 1146, 1149 (1982); Magnus v. Lutheran General Health Care System, 235 Ill.App.3d 173, 176 Ill.Dec. 209, 217, 601 N.E.2d 907, 915 (1992).
In Magnus, an Illinois appeUate court affirmed a judgment against a party (Buyer) to an agreement who attempted to enforce an indemnification clause against the other party (Seller). The indemnification clause provided that the Seller would indemnify the Buyer for “aU costs and expenses (including reasonable attorneys’ fees) of any kind whatsoever arising out of or incident to or in connection with ... any claim of any type whatsoever asserted against Buyer by any person ... of any type arising out of or in connection of with (a) any act, conduct, failure to act or omission of Seller.” 176 Ill.Dec. at 217, 601 N.E.2d at 915.
The Buyer had incurred expenses in litigating a claim asserted by the SeUer, but the Magnus court held that “[a]n indemnity agreement is an agreement whereby the in-demnitor agrees to protect the indemnitee from claims asserted against the indemnitee by third persons.” Id. It concluded that the indemnity clause “[did] not include the costs Buyer incurred in defending itself against SeUer’s claims.” Id.
AppeUant contends that because there is a procedure for “non-third party claims” set forth in the agreement, indemnification may occur directly from Defendant to Plaintiff where no other parties are involved.
' Indemnification does not encompass payment of breach of contract damages as sought by AppeUant. The presence of the language referred to by AppeUant does not preclude the meaning of “indemnification” as provided under Illinois law. The existence of a “non-third party claim” does not mean HabiUty did not arise because of the act of a third party.
We conclude that the SPA’s indemnification clause did not include the damages alleged in Plaintiffs breach of contract claim against Defendant.
Appellant’s remaining two points ask this Court to review the trial court’s denial of summary judgment in favor of Plaintiff. There is no appeal from a denial of summary judgment and its denial does not present an appealable issue. DeCota v. J.E.M. Development Corp., 908 S.W.2d 884, 888 (Mo.App.1995). Those points are denied.
The portion of the summary judgment granting judgment for Defendant on Count II is affirmed. The portion of the summary judgment granting summary judgment for Defendant on Count I is reversed and the cause remanded for the trial court to set aside that portion of the judgment, and for further proceedings consistent with this opinion.
BARNEY, P.J., and GARRISON, J., concur.