Before Wagner, Chief Judge, and Terry, Associate Judge, and Gallagher, Senior Judge.
The opinion of the court was delivered by: Wagner, Chief Judge
Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.
Appeal from the Superior Court of the District of Columbia (Hon. Judith E. Retchin, Trial Judge)
Appellants, National Trade Productions, Reed Elsevier, Inc., and Reed Properties, Inc. (collectively NTP), appeal from the grant of summary judgment in favor of appellees, Information Development Corporation, William Saxton, and Morris Edwards (collectively IDC), and denying NTP's motion for summary judgment. IDC's complaint was for breach of contract based upon NTP's failure to pay $250,000 which IDC claimed to be due under the terms of the parties' contract. Central to a determination of this dispute is the interpretation to be accorded the contract. The trial court determined that the contract was unambiguous and interpreted it as a matter of law to require payment to IDC of the $250,000 as claimed. On appeal, NTP argues that the trial court erred in granting summary judgment for IDC and in interpreting the contract to require payment absent the occurrence of the contingency which it contends is provided for in the contract. Alternatively, NTP contends that the contract is ambiguous, raising a genuine issue of material fact which precludes summary judgment. We agree with NTP's alternate position that the contract is ambiguous, and therefore reverse and remand for further proceedings.
National Trade Productions is a corporation engaged in the business of organizing and promoting trade conferences. Appellee, Information Development Corporation (IDC), was engaged in the business of operating and promoting the annual Federal Computer Conference (FCC East Show) in the District of Columbia as well as other computer-related trade events. Appellees, William Saxton and Morris Edwards, are shareholders and officers of IDC. On February 13, 1992, NTP entered into an Asset Purchase Agreement (the Agreement) with IDC and Saxton and Edwards. Under the terms of the Agreement, NTP agreed to purchase "certain business assets, goodwill, tradename, trade and service marks, exhibitor lists and contracts, exhibit space contracts, and other items of IDC, including the FCC shows, and to secure certain covenants from IDC, Saxton and Edwards in exchange for $800,000 plus other valuable consideration." The Agreement also provided that NTP was to make a series of payments to IDC with the last payment of $250,000 due "on or about January 1, 1993 subject to the contingency that contracts executed for the 1993 FCC East Show prior to December 31, 1992 are equal to or greater than 200 booths ( 10%) and NTP has been able to contract for dates with the [Washington Convention Center] for the 1993 FCC East program to be held independently or in conjunction with Fed. Micro." The parties' dispute concerns whether or not NTP was obligated to make the final payment where 200 contracts were not secured as specified. NTP did not pay the $250,000 and IDP filed suit to recover that amount. NTP claimed in the trial court, as it does on appeal, that the condition in the contract required to trigger the payment was not satisfied, and therefore, it was not obligated to pay. IDC argued that the clause relied upon by NTP for its argument addressed only when the money was due, not whether it was due at all.
NTP filed a motion to dismiss on the ground that the contract required the parties to arbitrate the dispute. The trial court denied the motion, concluding that the arbitration clause did not cover the dispute involved here. The parties filed cross-motions for summary judgment. The trial court granted IDC's motion and denied NTP's motion, determining that the contract called for the $250,000 to be paid on or about January 1, 1993. The court agreed with the position of IDC that the condition went only to when the payment was due, and not to whether it was owed.
NTP challenges the trial court's denial of its motion to dismiss. It contends that the contract provided for mandatory arbitration of the dispute, and therefore, the trial court should have dismissed the case pending binding arbitration or stayed the proceedings. The trial court denied the motion on February 6, 1996. NTP did not file a notice of appeal from that decision until November 1, 1996.
Ordinarily, the denial of a motion to dismiss a complaint is not a final and appealable order. Hercules & Co. v. Beltway Carpet Serv., Inc., 592 A.2d 1069, 1071 (D.C. 1991). "The District's arbitration act, however, creates an exception to this general rule . . . ." Id. If one party to an agreement which provides for arbitration refuses to arbitrate, the other party may move for an order compelling arbitration. Id. (citing D.C. Code § 16-4302 (a) (1989)). The denial of a motion to compel arbitration is deemed to be a final order for purposes of an appeal. Id. (citing D.C. Code § 16-4317 (a)(1). NTP's motion to dismiss was essentially a motion to compel arbitration. See id. Thus, denial of the motion was immediately appealable. Id. NTP failed to note an appeal within thirty days as required by D.C. App. R. 4 (a)(1). Therefore, this court lacks jurisdiction to consider NTP's appeal from denial of its request to compel arbitration. See Robinson v. Booker, 561 A.2d 483, 484-85 (D.C. 1989).
NTP argues that the trial court erred in granting IDC's motion for summary judgment and in denying NTP's motion for summary judgment. It contends that either the $250,000 is not due and owing because the contingency provided for in the contract, which is a precondition to payment, has not occurred or that a substantial dispute of material fact exists as to the proper interpretation of the "contingency clause." Alternatively, NTP contends that there is no ambiguity in the contract that ...