TRAVELERS INSURANCE CO v HOLIDAY
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No. 95-152 IN THE SUPREMECOURT OF THE STATE OF MONTANA 1996 TRAVELERS INSURANCE COMPANY, A Connecticut Corporation, Plaintiff and Respondent, ,, HOLIDAY VILLAGE SHOPPING CENTER LIMITED ,;, "~ PARTNERSHIP, a Montana limited partnership; SIX SIXTY SEVEN, INC. ; HILL COUNTY, MONTANA; APPEAL FROM: '~ 1 !~i ii/ ROBERT L. BROWN; ROBERT W. RECTOR; RICHARD F. BOHN; JACK OLIVER; CLARKE STREEPER; and O.B.S. PARTNERSHIP, Defendants :~ " ' -,.-!'~ i : -~i ,;: :j '<, ,_;, ,,,,,,.~,: ;:i ;~,;.~~:it* ;; ,;,, ,:, ; and Appellants. District Court of the Twelfth Judicial District, In and for the County of Hill, The Honorable Ted 0. Lympus, Judge presiding. COUNSEL OF RECORD: For Appellants: James H. Goetz (argued), Robert K. Baldwin Goetz, Madden & Dunn, Bozeman, Montana Frank Altman, Daniel Havre, Montana David G. Rice, Hill A. Boucher; Altman County Attorney, (argued); & Boucher, Havre, Montana For Respondent: William A. Squires Matteucci, Falcon, Montana (argued), Randall Squires & Lester, Argued: Submitted: Decided: Filed: I Clerk C. Lester; Great Falls, April 2, 1996 June 27, 1996 December 16, 1996 Justice W. William Appellants Findings of Foreclosure Leaphart delivered (collectively Fact, HVSC), Conclusions entered foreclosing their ordering a sheriff's sale. We restate 1. interest of appeal Law, by the Twelfth County, the Opinion in raised the Court. Amended and Decree District Court, subject the We reverse the issues from Judgment, Judicial interest of the property of Hill and and remand. by HVSC as follows: Did the District Court err in determining that HVSC's in the subject property was subject to Travelers' liens? 2. Did the District Court err in determining that subordination agreements executed by HVSC granted Travelers security interest in the fee to the subject property? Did the District 3. were terminated and that from forfeiture? the a Court err in determining that the leases Travelers would be entitled to relief Did the District Court err in not requiring the 4. delinquent real property taxes to be paid out of the foreclosure sale proceeds and in ordering that the costs and attorneys' fees would be assessed at a later date? Factual This case arises out of a complicated financing of the Holiday Montana. The following of stipulated several Streeper, facts. entered & M) covering The lease Village facts landowners, into lease in 1975, Hill Brown, located agreements with County, Rector, had been modified relating to the in Havre, from the parties' the land upon which Holiday agreements dispute Shopping Center are taken Beginning adjoining Summary statement Montana, Bohn, and Oliver, and M & M Enterprises Village several (M was constructed. times since they were executed. In the spring of 1978, Hill 2 County and the adjoining executed landowners Travelers. that shopping In May of note the lease special to LIC, warranty property executed (LIC). in the leasehold in the leasehold LAX0 agreement condition NWU all Again, County and reports and Holiday payments to issued payments the notices due under leases its were interest an assignment Village entered due under adjoining the lease landowners; of 1993, Hill of default the terms for County failure of the leases. to manage HVSC in March of 1993 and has to the District of HVSC since into In the spring landowners was appointed of its On May 30 and June 1, entered to make the required required the ground M&M and consent. HVSC was in default. made monthly giving lease and Travelers therefore, A receiver to LIC. Village to to make the interest a in the subject to LAACO, Ltd. agreement and the adjoining of M & M executed In 1986, LIC assigned agreement Hill in favor interest estates. Holiday an assumption of lease In its of ground to LIC. and conveyance HVSC failed an assignment to Travelers. conveyed its agreements and a payment of the promissory a mortgage deed to NWU conveying assigned the and delivered At the same time, an assignment subsequently to construct Company (NWU); the same day, NWU assigned and NWU subsequently interest into Inc. so M & M executed and delivered Union Trust to necessary To secure of 1980, M & M executed Northwestern 1990, 1978, agreements on M & M's behalf were executed to Travelers. M & M executed October subordination would advance the funds mall. promissory also delivered These agreements Travelers note, and his Court appointment. 3 regarding the financial In 1992, the monetary both its general of and personal Six Sixty of Travelers the Court remaining ordered Six Sixty that Seven, landowners and leases Court ordered that the sale. Subsequently, Hill the instant to the date rent subject In 1994, County, and that HVSC and Hill not properly County the The District against and County terminate the adjoining payments due under the terms of Finally, property be sold County and the adjoining a district same criteria of the District at a sheriff's landowners filed as that 903 P.2d 1377, (1993), 257 Mont. whether a genuine grant of summary judgment used by the district Chilberg 1378-79 issue (citing is entitled 903 P.2d 1379. of material to judgment Here, the Minnie fact v. City 4 exists as a matter parties court; v. Rose (1995), 429, 431, 849 P.2d 212, 214). moving party at review court's by Rule 56, M.R.Civ.P. 414, 416, interest. appeal. In reviewing guided Hill of the judgment. Standard use the to the entry appeal. a judgment Hill that the monthly their instant and did HVSC and of its to the stipulation as sureties leases, in summary judgment. recover pursuant act recover the interest consented Travelers, Travelers and Brown did not ground litigating on of 1993, and foreclosure moved for Inc. Inc., a judgment security In April Seven, parties, landowners seeking of its property. in favor adjoining complaint and foreclosure HVSC is no longer Thus, its partner, of judgment the filed obligation the real all Travelers submitted we we are 273 Mont. of Roundup Thus, we determine and whether of law. the Chilberq, a statement of stipulated facts conclusions of law, oral argument. and matter law, law." of this Stratemeyer 245, Coal Co., (1995), Steer, Inc. of facts and exists. determined that "[t]o on the construction court's and (Mont. 469, of Revenue (1990), a of of the law is 1996), Carbon County 453, is conclusions interpretation County (citing fact, such a determination a district 271 Mont. v. Department 803 P.2d 601, turns the court's 246 53 St.Rep. findings fact Court matter v. Lincoln 177, Inc. of material instruments, whether its based on the stipulated issue In reviewing we determine entered the District of written of correct. case, resolution interpretation court and decree No genuine In the instant the extent the 915 P.2d 175, v. Union 898 P.2d 245 Mont. Reserve 680, 686); 470, 474-75, 603-04. Discussion Resolution subordination of the appeal hinges agreements adjoining landowners agreement with Hill in executed in favor Travelers. of County1 provides SUBORDINATION . . upon an interpretation 1978 by Hill in relevant County of the and the The subordination part that: AGREEMENT . WHEREAS, the undersigned, Hill County, Montana, a political subdivision of the State of Montana, having an address of Havre, Montana, is the owner in fee simple absolute of the real property situated in Hill County, Montana, more particularly described on Exhibit A attached hereto and by this reference made a part hereof, and WHEREAS,the undersigned ' The subordination substantially identical by a lease dated August agreement with the adjoining to the agreement with Hill 5 29, landowners County. is 1975, as supplemented by Supplemental Agreement dated November 1, 1976, and executed by the parties August 29, 1975 has leased the hereinbefore described real property to M & M Enterprises, a Montana Partnership; and has applied to the WHEREAS, M & M Enterprises Travelers Insurance Company, a Connecticut corporation, hereinafter referred to as Travelers for a loan in the amount of FIVE MILLION EIGHT HUNDREDFIFTY THOUSANDand No/100 DOLLARS ($5,850,000.00) with interest, evidenced by a note dated Februarv 8. 1978 and secured by a mortgage on the Lessee's interest in the hereinbefore described real property of even date with said note and recorded on the 14th dav of June, 1978, in Book 140 of Mortqaqes on Paae 348, Document Records of the Clerk and Recorder of Hill County, Montana, and WHEREAS,Travelers is unwilling to make said loan or advance funds thereon unless it is assured that the above described mortgage shall be a lien upon the undersigned's fee simple title in the hereinbefore described real property and unless the undersigned gives Travelers the assurances hereinafter set forth, and WHEREAS, the undersigned is willing to subordinate its fee simple title to said real property to said mortgage and is willing to give such assurance, of the making of NOW, THEREFORE, in consideration said loan to M & M ENTERPRISES, and to induce Travelers undersigned to advance funds thereon, the hereby subordinates all of its right, title and interest in and to said real property to the lien of said mortgage and agrees that said mortgage shall continue to be a first lien upon said property prior and superior in right to any right, title and interest of the undersigned in and to said real property. The undersigned, however, shall not be liable for the payment of any indebtedness secured by said mortgage or the performance of any of the covenants or obligations of the mortgagor thereunder. The undersigned further assures Travelers that the undersigned will not terminate the above described lease without the prior written consent of Travelers except in the case of a default thereunder by M & M ENTERPRISES in which case the undersigned agrees to give Travelers written notice thereof, specifying the default and Travelers shall have ninety (90) days after receipt of said notice within which to cure said default, and if the default is cured within said period, or if the default is one which cannot be cured within said period, but steps are taken in good faith during said period and diligently 6 pursued, added. 1 Hill the lease shall County and the adjoining sureties for executed are not mortgages. landowners that all adjoining liability agreements are, the Hill argues that in fact, which when Travelers of Hill County's and mortgages. the that they waive and the subordination landowners' the Further, agreements are released County and the adjoining lien they County and the adjoining consent Travelers' subordination that agreements without Hill to assert the subordination Further, [Emphasis Travelers subjected interests landowners they were exonerated landowners. agreements that M & M and that assert M & M from fee not be terminated[.l subordination Travelers statutory any contends right of exoneration. In resolving concluded that contractual and the contentions, the above-quoted right an parties' of equitable with all the property and the execution interest This Court and interpretation a question (1994), contain has stated of written of law for 268 Mont. 275, 281, 384, 387). Similarly, mortgage it for a grant of real However, the a mortgage." no words purporting "[aIs a general 886 P.2d 416, it is 7 was to mortgage an MCA. to decide." Bank of Anaconda v. Vander Pas (1991), P.2d as a statutory a because agreements, the court creates law 71-l-204, that agreement Court required of Section District Montana formalities agreements in property. as well under "executed subordination subordination foreclosure mortgage the rule, including construction contracts, Klawitter 420 (citing 250 Mont. a question 148, of is v. Dettmann First 152-53, law Sec. 818 whether ambiguity exists 420 (citing in a written Audit 826 P.2d 549, 551); 889 P.2d 1170, Hill mortgages and the that1 that evidence." they "Subordination look to We hold Lilt are that the without 387, district resort Court l'[t]he purport to to Court concluded forth erred that rather the form than language the fee the that are Section The operative Although the text is "subordinated," interest to of mortgages. of a mortgage. purporting the Court The documents form is to "mortgage." that the in concluding were not ambiguous. to extrinsic interpretation for be court evidence the District states contain for face, and therefore Agreement" "mortgage" it property to a as security. A subordination existing agreement for interests, an interest without 379, that are unambiguous, agreements of the documents specific argue on their mortgages in the §204 mortgage mortgagee 269 Mont. was error extrinsic MCA, sets does not 62, 65, (1995), The District "Subordination 71-l-204, verb do not, Agreements the subordination titled P.2d at 252 Mont. (1992), 886 landowners adjoining We agree. need not v. Systad Johnson v. Nyhart agreements [and conclude Inc. Klawitter, 1174. County subordination same." Sews. instrument. in property example lien the property. is the necessity the priorities holders--it A mortgage hypothecated for "is agreement at issue between does not mortgage a contract the performance of a change of possession." 101, MCA. The agreement a subordination only dictates by which of an act, Section here has characteristics and a mortgage. 8 The confusion 71-lof both lies in the fact that the agreement mixes concepts that Hill County "mortgage" by landowners subordinate their Subordinate means mortgage. rank and secondary, by having minor." fee lower fee simple which is of agreements scale; Since, absolute and without to paradox; "subordinate" can a limitation, is or 1990). by a "subordination the class, ed. purporting and without Travelers' a recognized (6th is absolute and adjoining order, in interest a the a lower position or secondary and to position presents "subordinate" interests in an agreement interest language simple "Ipllaced a lower limitation, simple interest, the a or fee of BLACK's LAW DICTIONARY 1426 definition, condition a providing the fee simple be placed in agreement?" inherently and a Thus, internally inconsistent. The District agreements was Hill and that language of The County extrinsic itself did intent To resolve the instrument. intention parties As [to surrounding at this Court create a 439, dissenters holding to agreements it would of the has recognized, the Boysun v. ambiguous. assert court time mortgage] is that must courts Boysun to consider execution "to of establish will (1962), had Travelers agreements the the evidence show that subordination the that extrinsic landowners ambiguity, circumstances." 368 P.2d the adjoining the this in resort been considered consider not of The and the evidence mortgages. 538, incorrect unnecessary. Further, the was unambiguous are Court be the the this examine the 140 Mont. 85, 440. correctly point 9 out that § 28-3-206, MCA, provides that should in cases of uncertainty, be interpreted the uncertainty is not to exist. party that "most strongly" Labor 1341, against conclusion that employer § interpret the agreement whether the mortgage, the 28-3-206, agreement that court's statute that 158, still 649 P.2d against MCA, and as the reached present Travelers Court in deciding agreement dictate consideration the case, District a subordination after in Landon the employer the of the contract In the does not necessarily deliberation a rule 153, it was correct. constitutes is § 28-3-206, to exist, most strongly non- For example, against MCA, mandates although the interpret applied most strongly this it 200 Mont. the court that that Rather, party. (1982), who caused however, require the court the uncertainty the not cases. that Division the contract who caused all does of the contract the party be noted, the drafting even after 1343-44, party It in against should rule. requires Standards interpreted It prevail interpretation v. most strongly a peremptory drafting the language or a the outcome of of the extrinsic evidence. Were the ground leases properly terminated? Travelers filed its complaint in this months before Hill County and Brown, 1992, February and March, 1993 notices On June 18, 1993, Travelers of default sought the lease payments into effect the agreements. subordination request. 10 et court on November 13, al. issued on the ground the District to deposit of matter Court's pending leases. permission resolution The court their of the denied the The subordination agreements provide: If the default is one which cannot be cured within said period, but steps are taken in good faith during said period and diligently pursued, the lease shall not be terminatedL.1 The District timely pursuit Court concluded of the litigation the District that, in and request of Travelers' to deposit funds with Court: Travelers so acted in good faith, negligent or willful in its refusal alleged by the Lessors. Therefore, properly terminatedL.1 . . The District not properly Court's terminated conclusion is Accordingly, et entitled correct we also affirm al. light are specified to that and it the holding receive and was not grossly to cure the defaults the leases were not that the the ground is therefore Hill monthly leases were affirmed. County and Brown, lease payments as in the judgment. Summary We affirm Limited Partnership specified of the judgment in paragraph Foreclosure provided with and Conclusion Six l(a) interest in the Promissory In its against Holiday Sixty through at Village Seven, l(h) the Inc. Shopping Center in the amounts of the Judgment and Decree rate of 12% per annum as Note. of Law #16, the District Court stated: 16. Hill County and Brown, et al. did not act as sureties as definedby Section 28-11-401, Mont. Code Ann. (1993). The subject Subordination Agreements were executed for the benefit of Hill County and Brown, et al. obligations under the as part of their contractual subject ground leases to induce the execution of the same by the Mitchells [co-partners of M & Ml, thus securing a Accordingly, benefit unto Hill County and Brown, et al. Agreements not the subject Subordination were extinguished or exonerated by the release from liability 11 of M & M Enterprises and Promissory Note and Mortgage. The District al. Court's subordination exonerated that of foreclosure, regard a statutory to appellants' the court's its holding also award of that the County and Brown, et is County leases correct and the and is and Brown, of M & M Enterprises of the District agreements mortgage fee interest costs from et al. and the Note and Mortgage. the judgment the subordination Hill release from the Promissory We reverse holds by the Hill as sureties Accordingly, affirmed. were not that Mitchells terms of the ground acting agreements, therefore Mitchells conclusion under the specific were not, the create insofar in the real constitute as it a contractual or an equitable and attorneys' the agreements Court mortgage is dependent mortgages, with In that property. fees right that upon award is reversed. Accordingly, consideration was not adjoining we reverse of the extrinsic considered landowners' Reversed in and remand to the District evidence determining fee interests and remanded. 12 which, whether although Hill are subject Court for presented, County and the to foreclosure. we concur: Chief Justice Judge of the Dlstrlct for Justice William Court, E. Hunt, sitting Sr. 13 Chief Justice I this J. concur with to case evidence thus title of to to the create the specially result the the Agreement." execution fee the concerning record intended Turnage allow "Subordination the A. far concurring: reached District Court the the on which the remanding consider extrinsic from the terms of shopping the the evidence in surrounding that the mortgage center Chief 14 entering circumstances Agreement," under majority, in I am confident, "Subordination property to intent parties' concerning a lien by the is Justice parties on the located. Justice Terry I N. dissent requires the agreement extrinsic agreement interest dissenting. from subordination the Trieweiler majority's is ambiguous evidence. did nothing to Travelers' conclusion and that right than its the plain subordinate to foreclose the interpretation that I conclude more that Hill on the terms of County's lessee's fee leasehold interest. Furthermore, in uncertainties be in this reasons, I enter summary favor of County was leased it the loan its given defaulted right to October obligated subject its to document, For District these Court and in simple County that absolute, Hill but had a Montana M & M had that gave for that property in repay a shopping to Hill by Hill acknowledged then interest M & M to pay rent that M & M Enterprises, leasehold and build the Company. simple Therefore, fee of acknowledged fee to in require was executed in on M & M's County subordination law the Company interest leasehold 1, 1975, which 1975, agreement the County. property 29, of obligation foreclose owned by Hill Hill Travelers. from judgment Insurance lessee's by M & M's the in Insurance agreement The mortgaged drafter for August partnership. the against reverse judgment on case Travelers Travelers owned and resolved case would of an ambiguity statutory The subordination in event Montana's agreement, which the as security event the that for M & M loan, that Travelers had a interest. it the a period center County right to occupy land of fifty years from It also on that in the land. amount of a $20,360 annually after various completion other terms agreement. provided interest in the for simple As the shopping pursuant and to it the that By the owner to be of built, to retake was not had the written limited not lease to include estate County possession the a fee also which the had rights to receive right of on rent, the property in the agreed, in paid. subordination Travelers' the were County. real Hill It did by Hill the There was and owned right of in forth interest agreement. written consideration set property and rent center. agreement lease the shopping leasehold that the was had the event in lessor center the and conditions However, rights of agreement, loan to Hill County M & M, tc [subordinate] all of its right, title and interest in and to said real property to the lien of said mortgage and agrees that said mortgage shall continue to be a first lien upon said property prior and superior in right to title and interest of the undersigned in and any right, to said real property. In other enforcement of its words, of its right to subordination Hill rights County in the foreclose agreement simply property on the agreed to Travelers' leasehold defer interest. right of right right . . By executing a lien subordination agreement, the subordinating party agrees to demote the priority of thereby its lien to that of another secured creditor, delaying its recourse to the identified collateral until the other party's secured claim has been satisfied. 16 the enforcement is "an agreement by which a party having a superior some sort agrees with someone having an inferior as between the two of them, the inferior that, shall be treated as if it were superior." . to A (Bankr. In re LantanaMotel (citation County while defer its leasehold, it mortgage County could in only In 252, 255, 256 on its as interest in of Idaho 1986), institution property. a mortgage Supp. JHI that the to compelled its by the leasehold and Hill interest. estate, for the in and gave Supp. none was to to Davis's 919. However, in 17 leased a deed of operating loan. subordinate for the simple relevant the lending interest in of Idaho District could estate. her security simple agreement language (JHI) and fee Court fee to defaulted subordination in v. John Home institution's on Davis's the an agreed lending District Corp. institution secure JHI foreclose District Corporation loan, the States 916. a lending to the United Old Stone Capital Implement interest interest at of Travelers leasehold simple to 647 F. then The Federal concluded fee leasehold. sought the Travelers' Idaho Hoene property the is Hill agreement. District the in term had pursuant conclusion had an interest leasehold in That was presented an inducement interest it subordination Davis. given than the John the property M & M. that during terms, in case, from property required plain no interest the that Davis, F. B.R. agreement to (D. property first 124 by its the only issue ImplementCorp. have, defer A similar for the to by the trust with agreed had created in not Travelers Travelers the 1990), subordination interest agreement that Court the interest greater fact Ohio omitted). However, any S.D. not create Old Stone, to the issue 64 7 in this case, interest that it in kind the of subordinated to it, title interest the held concluded fee her to court also that to Davis's simply fee the virtue never it could the of and whatever mortgage lender property, by interest, lender's since fact rights interest in not an acquire that were the had Davis attendant leasehold. The as follows: In summary, the nature of a subordination is such that the beneficiary of the subordination must have a competing interest which, after the subordination, becomes senior to that which, before the subordination, was the senior interest. In this case, Old Stone [the lending institution] never had an interest in the fee of Davis's property, but only pursuant to the leasehold mortgage a junior interest in the leasehold. After the subordination, Old Stone's interest in the leasehold became superior to Davis's interest in the leasehold. By its very nature, the vehicle of subordination could not be used to grant Old Stone an interest in the fee. In order to have an interest in Davis's fee estate, a mortgage or deed of trust must have been executed. No such instrument was executed. Further, the subordination agreement cannot be elevated to the position of a mortgage or deed of trust since it lacks the formalities of such required under Idaho law. The subordination agreement could not, as a matter of law, grant any interest in the fee, upon which foreclosure could be had, to Old Stone. Foreclosure is only possible on the deed of trust affecting the leasehold. Old smne , 647 F. Likewise Supp. in County's fee County's this lessee. Travelers' waive its so that leasehold title Travelers without 919. case, based Travelers on Therefore, mortgage rights at its it could during no mortgage when Hill interest, as lessor had the period freely enforce competition from 18 its Hill in agreement County agreed interest to agreed with to do nothing of the security County Hill lease interest based Hill defer more to than agreement in the on its superior the interest. subordination Court summary of even is ambiguous," documents, and the mortgage interest in so by clear create a mortgage drafted interest in Hill and is had 28-3-206, if executed the "[tlhe must it of District it it language be intended from by terms County. result that evident leasehold of property, The fact interest plain concludes, County's language. M & M's Section Hill the majority the reversal for as the prepared from require if, Travelers doing clear judgment agreements it are and the that facts agreement and entry However, of These the to was of mortgage M & M to create capable was aware the same. a of how to document create a mortgage estate. MCA, provides: In cases of uncertainty not removed by parts 1 through 5 of this chapter, the language of a contract should be interpreted most strongly against the party who caused the uncertainty to exist. The promiser is presumed to be such party, except that in the case of a contract between a public officer or body, as such, and a private party, it is presumed that all uncertainty was caused by the private party. We have Topco,Inc. 665 (1996), Hopwood, 275 Inc. held P.2d regarding clearly 223, that ambiguous contracts party that drafted the Mont. 352, 360, 912 P.2d 260 Mont. (1993), St. PaulFire&MarineIns. The it that v. State v. Piper, JasJiayBr 449-50; repeatedly against be resolved also Co. v. Cumiskey 207, (1983), should contract. 805, 216, 204 See, e.g., 810; 859 P.2d Mont. 350, Mueske 444, 363, 229. majority opinion ambiguous contracts. requires construing does not However, the 19 address the when that subordination standard rule is agreement rule applied, in favor of Hill the County and against agreement subordination but agreement, makes no was mention in of fact a implausible Travelers' was not a mortgage mortgage nor I from merely suggestion a agreement, includes that subordination even any though language it of conveyance. For would reverse judgment has these in reasons, the favor a mortgage judgment of of Hill interest dissent the District County in on the Hill County's / Justice James C. Nelson the majority Court issue opinion. and enter of whether 20 Travelers property. Jus ide ing joi summary opinion. I IN THE SUPREMECOURT OF THE STATE OF MONTANA No. 95-152 TRAVELERS INSURANCE COMPANY, a Connecticut corporation, Plaintiff and Respondent, ; ) v. HOLIDAY VILLAGE SHOPPING CENTER LIMITED PARTNERSHIP, a Montana limited partnership; SIX SIXTY SEVEN, ZINC.; HILL COUNTY, MONTANA; ROBERT L. BROWN; ROBERT W. RECTOR; RICHARD F. BOHN; JACK OLIVER; CLARKE STREEPER and OBS PARTNERSHIP, Defendants On January Oliver, 1997, Bohn, Streeper rehearing Insurance in the appellants ; 1 considered its tc! ; ) with above-entitled JAWS 0 1997 County, this matter; objections the petition ZLzifL CLERKO~-- SWREMECOWK STATE OF MONTANA Hill and OBS filed Company filed Having i ) and Appellants. 3, ORDER Brown, Court a petition respondent, on January Rector, for Travelers 13, 1997. and objections, IT IS ORDERED: 1. The following this Court's line from stricken language December 16, 1996, Opinion is (slip hereby from op. at page 3, second the top): Travelers. These agreements were executed e b&&f so that Travelers would advance the funds In all deleted other respects, 2. The petition 3. The Clerk the Opinion for is shall rehearing directed to 1 remain the . . . same is DENIED. mail a true copy hereof to counsel of record for respective Publishing Publishing DATED this the b &ay of January, parties, to State Reporter Company. 1997. Justices The Honorable Douglas G. Harkin, District Court Judge, sitting would also deny the Petition Justice William E. Hunt, Sr:, Rehearing. 2 for for
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