dissenting.
|aI would affirm the trial court’s order granting summary judgment to Bee-Three and dismissing the Prochazkas’ counterclaim. I would hold, as the trial court did, that there was no unanswered question of material fact regarding Bee-Three’s contractual right to terminate and to receive a refund of its earnest money.
The first rule of interpreting a contract is to give the language employed the meaning that the parties intended, and the court must consider the sense and meanings of the words used by the parties as they are taken and understood in their plain, ordinary meaning. Cranfill v. Union Planters Bank, N.A., 86 Ark. App. 1, 158 S.W.3d 703 (2004). It is the duty of the court to construe a contract according to its unambiguous language without enlarging or extending its terms. Id. (citing North v. Philliber, 269 Ark. 403, 602 S.W.2d 643 (1980)).
In its oral remarks, the trial court found that Bee-Three “had absolute discretion” to terminate and “just clearly exercised that right.” In its written order, the court found the meaning of the contract to be clear:
When the Parties’ contract reserved to the Plaintiff/Buyer the right to terminate the contract “in its sole and absolute discretion,” that right was, by the very words that created it, absolute. To posit an interdependence between the “right to terminate” paragraph of the contract and the “right to inspect” paragraph, when the contract does not support such a nexus, is a violation of the clear meaning of the language and introduces an unwarranted and unjustifiable occasion to impute [an] ambiguity where there really is none.
|inI would hold, just as the trial court did, that there is no foundation to an argument of ambiguity in the written language concerning the right to terminate. To find such an ambiguity is to enlarge and extend the terms of the contract.
Quite simply, the language of the contract is clear. Paragraph 4.1 allows the buyer, during the inspection period, to “determine generally the desirability and utility of the Property for Buyer’s planned use of the Property.” Paragraph 4.3 specifies that the buyer’s determination of unsuitability for intended use, in the buyer’s “sole and absolute discretion,” gives the buyer the right to terminate and to have its earnest money returned if written notice is given before expiration of the inspection period.
Paragraph 4.1, although specifically allowing Bee-Three to inspect the property for environmental, taxation, and zoning issues, still allowed Bee-Three to “determine generally” the desirability of the property for the use it intended. Paragraph 4.3 afforded Bee-Three “sole and absolute” discretion to make the determination that the property lacked suitability for Bee-Three’s intended use — in this case, leasing to an anchor tenant. Bee-Three was not required to convey this intended use to the Prochazkas as a condition of buying. Bee-Three determined the property to be unsuitable, as was allowed by both paragraphs, and exercised its absolute right to terminate.
I dissent from the majority opinion, which expands, in my view, the terms of the contract. The contract’s clear language afforded Bee-Three absolute discretion to determine that the property was not suitable for its use, and this use was not a term of the contract. I am authorized to say that Judges Vaught, Hoofman, and Brown join in this dissenting opinion.
Vaught, Hoofman, and Brown, JJ., join in this dissent.