Pavone v. Kirke

807 N.W.2d 828 (2011)

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Nature of the Case

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Facts

P and D executed a document entitled 'Agreement,' which, in part, attempted to delineate the parties' relationship with regard to future casino projects in Iowa. In essence, if D had the opportunity to develop or operate any other casino in Iowa, D was to use good faith best efforts to involve P when the opportunity is first known, and to negotiate in good faith a Management Agreement consistent with the terms outlined in D's gaming development agreement with the City of Ottumwa, Iowa. The Gaming Commission awarded D a gaming license to develop a casino in Emmetsburg. D sent a letter to P allegedly terminating the agreement and any future relationship between the parties. D's attorney e-mailed a copy of the termination letter to P's attorney. P's attorney wanted clarification for future business and also as to a Management Agreement/Buy-Out. D got upset and stated that he thought they were close to a deal then P sought to revisit issues that had been previously resolved. P replied and stated that P remains prepared to continue negotiating the terms of the Management Agreement as required by the October 22, 2004, agreement. On July 12, 2005, P sent a proposed management agreement for the Emmetsburg casino. There is no evidence D responded, and the parties never executed a management agreement for the Emmetsburg casino. P filed a civil action against D alleging a breach of the management agreement contained in paragraph 3A of the October agreement for the Emmetsburg casino and failed to negotiate in good faith a management agreement for the Emmetsburg casino in violation of paragraph 5A. The jury found that D breached paragraphs 3A and 5A of the October agreement. The jury awarded SMG $10 million in damages. That verdict was affirmed. During the first civil action, the Commission awarded D a gaming license to develop a casino in Clinton. D did not contact or negotiate a management agreement with P regarding management of the Clinton casino. P filed a separate action alleging D breached paragraph 5A of the October agreement by failing to negotiate in good faith for the management of the Clinton casino. Paragraph 5A of the October agreement was litigated in the Emmetsburg action. D denied the allegations in the petition and argued that the doctrine of claim preclusion barred P's current claim as a matter of law. The district court granted D's motion for summary judgment. It concluded that the doctrine of claim preclusion barred the current action because both actions involved the same agreement and provision, the parties were the same in both actions, and there was ample time for P to seek damages relating to the Clinton casino in the Emmetsburg action. P appealed. The court of appeals affirmed. P appealed.