Monette v. Tinsley

1999 NMCA 040, 975 P.2d 361, 126 N.M. 748
CourtNew Mexico Court of Appeals
DecidedJanuary 20, 1999
Docket19310
StatusPublished
Cited by21 cases

This text of 1999 NMCA 040 (Monette v. Tinsley) is published on Counsel Stack Legal Research, covering New Mexico Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Monette v. Tinsley, 1999 NMCA 040, 975 P.2d 361, 126 N.M. 748 (N.M. Ct. App. 1999).

Opinion

OPINION

PICKARD, Judge.

{1} Defendants appeal the trial court’s denial of their motion to compel arbitration of Plaintiffs’ contract claims against them. We affirm in part and revérse in part.

BACKGROUND

{2} K-Bob’s USA, Inc.; its president, Edward R. Tinsley, III; and K-Bob’s Capital Resource Group, Ltd. (Defendants) sell and assist in the management of restaurant franchises. Defendants entered into a Manager-Proprietor Agreement with. Plaintiff Donald Monette. Plaintiffs, Donald and Charles Monette, both signed a promissory note for $62,500 that was attached to the agreement. According to the agreement, Donald Monette would serve as manager and proprietor of a K-Bob’s restaurant in Socorro, New Mexico.

{3} Several months later, Donald Monette resigned, without notice, from his position as manager of the restaurant. Defendants then terminated the agreement with Donald Monette. According to Plaintiffs, however, Defendants had previously assured them that if Donald Monette did not work out as manager, another member of the Monette family would be allowed to take over for him.

{4} Plaintiffs informed Defendants by letter of their intention to bring suit if the issues surrounding the termination of the contract could not be resolved. In that same letter, Plaintiffs also raised the arbitration issue, noted the contract provision that required disputes to be arbitrated, and indicated their hope to settle the matter. Initial settlement discussions were not successful.

{5} Donald and Charles Monette filed a complaint against Defendants, alleging breach of contract, misrepresentation, and money due. They sought $62,500 that they had paid on the promissory note, plus interest, as well as damages, costs, and attorney fees. Specifically, Plaintiffs alleged that Defendants breached the contract by failing to provide them support, vacation time, and information, as well as failing to pay profits as agreed and failing to pay or provide an assistant manager. They included in their complaint the allegation that Defendants breached the contract by refusing to allow Donald Monette to return to work and by failing to abide by their pre-signing representation that, if necessary, a family member would be allowed to replace Donald Monette as manager.

{6} Defendants then filed a motion to dismiss, abate, and compel arbitration, in lieu of filing an answer to Plaintiffs’ complaint. The trial court denied the motion, and Defendants appeal.

DISCUSSION

{7} This Court reviews conclusions of law de novo. See Strata Prod. Co. v. Mercury Exploration Co., 121 N.M. 622, 627, 916 P.2d 822, 827 (1996). We will reverse if the trial court’s -findings and conclusions cannot be sustained either by evidence or permissible inferences drawn therefrom. See Reichert v. Atler, 117 N.M. 628, 631, 875 P.2d 384, 387 (Ct.App.1992), aff'd, 117 N.M. 623, 875 P.2d 379 (1994). Absent ambiguity, a contract’s meaning is a question of law, rather than a question of fact. See Carlsberg Management Co. v. State, Taxation & Revenue Dep’t, 116 N.M. 247, 251, 861 P.2d 288, 292 (Ct.App.1993).

{8} The trial court denied Defendants’ motion to dismiss, abate, and compel arbitration based on its conclusions that: (1) Plaintiff Charles Monette was not bound to the arbitration provision of the contract, (2) the contract’s arbitration provision was ambiguous and unfair and should be construed against Defendants, and (3) Plaintiffs’ misrepresentation was not a dispute about the contract.

Charles Monette Was Not a Party To The Contract

{9} The trial court properly concluded that Plaintiff Charles Monette was not a party to the contract. Charles Monette was a guarantor of the $62,500 promissory note that accompanied the contract, but a mere witness to the underlying contract itself. It is commonly held that a guarantor or surety is not a party bound to the terms of the underlying contract. See, e.g., Washington Int’l Ins. Co. v. Superior Court, 62 Cal.App.4th 981, 73 Cal.Rptr.2d 282, 285 (1998) (stating rule that surety is not bound to terms outside the surety agreement).

{10} A guarantor who is not a signatory to a contract is generally not bound by that contract’s arbitration clause. See, e.g., Asplundh Tree Expert Co. v. Bates, 71 F.3d 592, 595 (6th Cir.1995); see generally 1 Domke on Commercial Arbitration § 10:07 (Gabriel M. Wilner & Nuzhat Hafeez, eds., rev. ed.1998) (discussing the effect of arbitration provisions on guarantors and sureties).

{11} There are, however, exceptions to the general rule when the note or guaranty incorporates the underlying contract by reference. See United States Fidelity & Guar. Co. v. West Point Constr. Co., 837 F.2d 1507, 1508 (11th Cir.1988) (holding incorporation by reference sufficient to bind surety); see also Grundstad v. Ritt, 106 F.3d 201, 204-05 (7th Cir.1997) (concluding that absent language in the guaranty specifically stating that the guarantor would be bound to arbitration, he was not to be bound as a matter of law). The note in this case bears no indication that the contract was incorporated by reference or otherwise suggested that Charles Monette, as guarantor, intended to be bound to arbitration. Some cases also make reference to the “inextricably interwoven” approach, pursuant to which a guarantor may be required to arbitrate if the guarantee is inextricably inteiwoven with the underlying contract. See Scinto v. Sosin, 51 Conn.App. 222, 721 A.2d 552, 559 (1998). Even assuming that extrinsic evidence could show the requisite degree of interweave, Defendants presented no evidence to the trial court from which it could have found the two documents inextricably interwoven. Defendants presented only the two documents, and no testimony concerning the circumstances of their negotiation or their signing.

{12} Admittedly, the result that Charles Monette is free to proceed in litigation against Defendants while his brother is bound to arbitrate the same claims is awkward. However, Defendants offer no reason why this case is so exceptional that Charles Monette should be bound by the arbitration provision, although he may in fact be bound by any arbitration award. See Domke, supra. Therefore, the remaining issues in this opinion about the application of the arbitration provision impact only Donald Monette’s remedy in this case.

The Arbitration Provision Was Not Ambiguous or Unfair

{13} A contract is ambiguous if it is reasonably and fairly susceptible to different constructions.

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Bluebook (online)
1999 NMCA 040, 975 P.2d 361, 126 N.M. 748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/monette-v-tinsley-nmctapp-1999.