viewing nonwaiver clause as one factor to consider in waiver determination
How later courts described this case
- viewing nonwaiver clause as one factor to consider in waiver determination
- narrow exception to general rule — not applicable here — allowing inferences to be construed against nonmoving party
Written by the judges who cited it.
The opinion
*527 SHEPARD, Justice,
dissenting:
I concur in much of the separate opinion of Bistline, J., regarding the adoption of a new rule by the majority here. Further I believe it more than passing strange that in an appeal from a summary judgment, the majority in affirming that summary judgment, continually refers to the findings of fact by the trial court. The record is unclear as to exactly how the trial court believed itself the finder of fact since originally appellant had moved for a jury trial.
In my judgment, the facts have been obfuscated, but they really are quite simple. The parties occupied the position of a lessor and a lessee. Their lease agreement contained provisions for lessee paying a set monthly rent together with other charges for taxes and repairs. The lease agreement further provided for an additional payment of rent based on a percentage of the gross sales. The relationship between the parties was without dispute as to payments by the lessee until the time of the Teton Dam disaster. Until that time, lessee made all payments claimed by lessor, although they were almost always delinquent in time. Notwithstanding those delinquencies, lessor accepted all payments and the relationship was amicable.
Following the Teton Dam disaster, however, the parties disagreed as to the amount of percentage rent due to lessor. Lessor made demands which lessee refused to hon- or. Based on lessee’s failure to pay the demanded percentage rent, lessor made formal written demand therefor and ultimately brought the action to terminate the lease based on failure of the lessee to pay the demanded percentage rent.
By the time the matter was submitted to the trial court on the various motions for summary judgment, all disputes between the parties had been settled, and all monies due had been paid, save and except the alleged percentage rent. The trial court held that lessor was not entitled to the alleged percentage rent, thereby holding in favor of the lessee in the only then remaining area of dispute. Nevertheless, the trial court terminated lessee’s lease.
In my judgment, the court below, and the majority here, reward the lessor for making a demand for monies to which the court ultimately decided the lessor was not entitled. Conversely, the court below, and the majority here, penalizes the lessee for his resistance of the lessor’s unfounded charges by terminating the lessee’s tenancy and forfeiting his interest which he had accumulated in the restaurant equipment. That result, I submit, stands both law and reason on their respective heads, and I, therefore, dissent.