Summary 2010 WY 110

Summary of Decision issued August 5, 2010

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Terris v. Kimmel

Citation: 2010 WY 110

Docket Number: S-10-0028

Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge.

Representing Terris: Katherine D. Peters and Thomas S. Peters of Peters Associates, LLC, Teton Village, Wyoming.

Representing Kimmel: Peter F. Moyer of Jackson, Wyoming.

Facts/Discussion: The Terrises appealed the district court’s Judgment, arising from a dispute relating to a lease agreement with Edwal Enterprises, Inc. and Edward Kimmel as principal (Kimmel.) The Terrises rented a storage unit from Kimmel in 1998 and continued doing so until the summer of 2006. The Terrises were over seven months behind in rental payments when Kimmel and his employees smelled gas fumes coming from the unit. They removed three propane tanks and two gas containers from the unit. Storage of flammable items was prohibited by the lease agreement.

Breach of lease agreement: The lease agreement provided for monthly payment of the rent. The manager of the storage facility was not authorized to amend the written lease agreement. Kimmel testified that he never authorized a modification of the contract and that he sent late payment notices three months prior to entering the storage unit. The Terrises prepared several lists of items they claimed were missing from the storage unit. However, they failed to persuade the district court that the items of personal property they listed as missing had existed or that Kimmel had disposed of them. The Court found nothing in the record to suggest otherwise.
Conversion: The Terrises argued that Kimmel violated the implied covenant of good faith and fair dealing and committed a conversion of their property when he failed to follow the lease agreement which required Kimmel to store or sell their property instead of disposing it at the dump. The claims rely on proof that Kimmel removed and disposed of the property which the Terrises failed to prove.
Attorney’s fees and costs: The Terrises argued that the district court erred by awarding attorney’s fees and costs to Kimmel because at the time of the breach, Kimmel had not yet incurred any fees or costs relating to the breach. The attorney’s fees provision of the lease agreement does not limit the availability of fees and costs only to those arising out of claims initiated by the landlord.

Conclusion: The Terrises failed to prove by clear and convincing evidence that the written lease agreement was modified. Consequently, the district court did not err in finding the Terrises in breach of the lease agreement for failure to make timely rental payments. The Terrises also failed to prove that Kimmel removed or disposed any of the Terrises’ personal property. As a result, the district court did not err in finding that Kimmel had not breached the lease agreement, committed a conversion, acted willfully in violation of the lease agreement, or violated the covenant of good faith and fair dealing. Nor did the district court abuse its discretion in awarding attorney’s fees and costs to Kimmel pursuant to the lease agreement, as those fees and costs were a direct result of the Terrises’ default under the lease agreement.

Affirmed.

J. Voigt delivered the decision.

Link: http://tinyurl.com/2cc2fn8 .

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