Summary 2006 WY 36

Summary of Decision issued March 22, 2006

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Case Name: Knapp v. Landex Corp.

Citation: 2006 WY 36

Docket Number: 05-154

Appeal from the District Court of Campbell County, the Honorable Dan R. Price, III, Judge

Representing Appellant (Defendant): Kenneth DeCock, Plains Law Offices, LLP, Gillette, Wyoming.

Representing Appellee (Plaintiff): Tonia Hanson, Omohundro Law Office, Buffalo, Wyoming.

Date of Decision: March 22, 2006

Issue: Whether the district court erred in granting summary judgment in favor of Appellee.

Holding: Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” The Court examines the record de novo, in the light most favorable to the party opposing the motion, affording the benefit of all favorable inferences to be drawn from the record.
The notice sent by Appellee to Appellant was not attached as an exhibit to Appellant’s answer or counterclaim and no other foundation was provided for the notice, so the Court could not properly consider its contents. The Court considered the pleadings, answers to interrogatories, and admissions on file, together with the affidavit filed by Appellee, to determine whether summary judgment was proper.
Appellee as the moving party was required to establish the absence of a genuine issue of material fact regarding the notice of default and the time provided to Appellant to cure the default. Appellee failed to meet that burden. Although its claim for relief depended on the contents of the notice, and it repeatedly referred to the notice, Appellee failed to provide a copy of the notice in support of its motion. In granting summary judgment, the district court did not directly address whether a genuine issue of material fact existed regarding the time provided to Appellant to cure the default. The district court held that the alleged May 21, 2003 extension of time to cure was void because it was not supported by consideration. The district court erred in reaching such a conclusion. The issue presented regarding the time to cure was whether Appellee waived its contractual right to hold Appellant in default on May 19, 2003, by the language it utilized in the April 17, 2003, notice.

The decree of the district court was reversed and remanded.

J. Burke delivered the opinion for the court.

Link to the case: http://tinyurl.com/johpf .