Summary 2013 WY 69

Summary of Decision June 5, 2013

Justice Voigt delivered the opinion for the Court. Reversed.

Case Name: TRINITY ST. JOHN a/k/a TRINITY POPE v. JOSHUA G. WAGNER, DDS, PC, d/b/a DENTAL CARE OF JACKSON HOLE

Docket Number: S-12-0188

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Teton County The Honorable Timothy C. Day, Judge

Representing Appellant: Ryan R. Shaffer and Robert L. Stepans of Meyer, Shaffer & Stepans, PLLP, Jackson, Wyoming. Argument by Mr. Shaffer.

Representing Appellee: Lena K. Moeller and Jodanna L. Haskins of White & Steele, P.C., Denver, Colorado. Argument by Ms. Haskins.

Date of Decision: June 5, 2013

Facts: Trinity St. John (the appellant), sought dental care from Dr. Joshua Wagner (the appellee). Following a claim by the appellee alleging breach of contract, the appellant responded with a number of counterclaims, including a claim based on the Wyoming Consumer Protection Act (WCPA). The district court dismissed all of the appellant’s claims, ruling that they were time barred by the statute of limitations. The appellant now appeals the dismissal of her WCPA claim.

Issues: Is a WCPA claim alleging unfair and deceptive trade practices by a dentist subject to Wyoming’s two-year professional malpractice statute of limitations?

Holdings: The appellant’s WCPA claim alleges that the appellee committed unfair and deceptive trade practices by compelling the appellant to obtain a credit card from a particular credit card company to settle her account. Such a claim is not based on the rendering of professional or health care services and, therefore, the two-year statute of limitations for professional malpractice is inapplicable. We reverse the district court’s order of dismissal and remand the case to the district court for further proceedings consistent with this opinion.

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court
[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2013 WY 53

Summary of Decision May 8, 2013

Justice Hill delivered the opinion for the Court. Dismissed.

Case Name: R. MARK ARMSTRONG v. WYOMING DEPARTMENT OF ENVIRONMENTAL QUALITY, JOHN CORRA, JAMES UZZELL, ROBERT DOCTOR, and DALE ANDERSON, as Individuals in Their Personal Capacity and in Their Official Capacity

Docket Number: S-12-0210

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Laramie County, the Honorable Michael Davis, Judge.

Representing Appellant: R. Mark Armstrong, Pro se.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; and Thomas W. Rumpke, Senior Assistant Attorney General.

Date of Decision: May 8, 2013

Facts: R. Mark Armstrong challenged an order dismissing his breach of contract claims against the State of Wyoming’s Department of Environmental Quality (DEQ).

Issues: Armstrong indentifies twelve issues, but his argument seems to be limited to three basic questions for this Court, which we rephrase as follows:

1. Regarding the breach of contract, Armstrong claims the DEQ breached a settlement agreement by treating his resignation as unconditional and failing to satisfy the conditions. Further, because Armstrong’s resignation was included in the settlement offer, the governor of Wyoming should have approved the settlement. Also, the Wyoming Governmental Claims Act does not bar his contract claims.

2. Armstrong asserts that the State should be stopped from raising res judicata as a defense, and further, judicial estoppels should preclude the State from claiming the breach of contract issues were decided in federal court.

3. In his third and final argument, Armstrong discusses his defamation claims, claiming that defamation affected his ability to acquire and maintain employment.

Holdings: Based upon Armstrong’s failure to follow the Wyoming Rules of Appellate Procedure, the Court dismissed.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2013 WY 31

Summary of Decision March 14, 2013


Justice Voigt delivered the opinion for the Court. Affirmed in part. Reversed and remanded in part.

Case Name: RIDGERUNNER, LLC, a Wyoming Limited Liability Company; and SARAH A CARRELLI and CYNTHIA D. PORTER, Individually v. RICHARD MEISINGER and MEISINGER INVESTMENTS, INC.

Docket Number: S-12-0118

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Fremont County, Honorable Norman E. Young, Judge.

Representing Appellant: Sky D Phifer, Phifer Law Office, Lander, Wyoming.

Representing Appellee: Collin C. Hopkins and Cynthia Van Vleet of Hopkins & Van Vleet, LLC, Riverton, Wyoming. Argument by Mr. Hopkins.

Date of Decision: March 14, 2013

Facts: The appellants, Ridgerunner, LLC, Sarah A. Carrelli, and Cynthia D. Porter, appealed the district court’s decision to dismiss on summary judgment their claims for breach of contract and breach of the covenant of good faith against the appellees, Meisinger Investments, Inc. and Richard Meisinger. The appellants claim that the district court improperly converted the appellees’ motion to dismiss the complaint to a motion for summary judgment and, therefore, the case must be reversed.

Issues: Did the district court properly dismiss the appellant’s complaint for breach of contract and breach of the covenant of good faith brought against the appellees?

Holdings: The district court improperly converted the appellees’ motion to dismiss to a motion of summary judgment. Reviewing the motion as one to dismiss the complaint under W.R.C.P. 12(b)(6), the Court agreed with the district court that the appellants failed to present any facts or allegations that would put the appellees on notice that the appellants were seeking to pierce the corporate veil in an attempt to hold Richard Meisinger personally liable for the claims against Meisinger Investments, Inc. However, the Court found that the appellants did present a proper claim against Meisinger Investments, Inc., despite the fact the corporation has been dissolved. The Court affirmed in part, reversed in part, and remanded to the district court for further proceedings consistent with this opinion.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 103

Summary of Decision July 31, 2012

Justice Golden delivered the opinion for the Court. Affirmed.

Case Name: BOWERS OIL AND GAS, INC., a Colorado corporation, v. DCP DOUGLAS, LLC, a Colorado limited liability company; and KINDER MORGAN OPERATING, L.P. “A”, a Delaware limited partnership

Docket Number: S-11-0233

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Converse County, Honorable John C. Brooks, Judge.

Representing Appellant: Loyd E. Smith of Murane & Bostwick, LLC, Cheyenne, Wyoming

Representing Appellees: James R. Belcher & Boomgaarden, LLP, Cheyenne, Wyoming

Date of Decision: July 31, 2012

Facts: Bowers Oil and Gas, Inc. (BOG) entered into a Gas Purchase Contract with Kinder Morgan Operating, L.P. (Kinder Morgan), pursuant to which Kinder Morgan agreed to purchase coal bed methane gas from certain of BOG’s wells. Kinder Morgan transferred its interest in the Contract, and Kinder Morgan’s successor eventually terminated the Contract pursuant to a provision that allowed either party to terminate if in the terminating party’s sole opinion, the sale or purchase of the gas became unprofitable or uneconomical. BOG thereafter filed a complaint in district court asserting claims for breach of contract and breach of the covenant of good faith and fair dealing. Following a bench trial, the district court found no contract breach or covenant breach and ruled in favor of Kinder Morgan and its successor. The Court affirmed.

Issues: BOG presented the following issues on appeal:

1. Whether the trial court erred in ruling that Appellees did not breach the Gas Purchase Contract?

A) Whether the trial court erred in ruling that Appellees were excused from performance of the Gas Purchase Contract on the basis that the Contract became uneconomical pursuant to paragraph 4 of the Contract?

2. Whether the trial court erred in ruling that the Appellees did not breach the covenant of good faith and fair dealing.

Holdings: The Court found no breach of contract in MEG’s removal of the pipelines connecting BOG to the gas gathering system and that DCP properly terminated the Gas Purchase Contract for economic cause. The Court further found no clear error in the district court’s rejection of BOG’s claim for breach of the implied covenant and fair dealing. Affirmed.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 52

Summary of Decision April 10, 2012


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: BERTHEL LAND AND LIVESTOCK, a Wyoming Limited Partnership v. ROCKIES EXPRESS PIPELINE LLC fka ENTREGA GAS PIPELINE LLC, and KINDER MORGAN NATGAS OPERATOR LLC, both organized under the law of Delaware, ROCKIES EXPRESS PIPELINE LLC fka ENTREGA GAS PIPELINE LLC, and KINDER MORGAN NATGAS OPERATOR LLC, both organized under the laws of Delaware, v. BERTHEL LAND AND LIVESTOCK, a Wyoming Limited Partnership

Docket Number: S-10-0227, S-10-0228

URL:
http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465335

Appeal from the District Court of Laramie County, Honorable Edward Grant, Judge, Retired, and the Honorable Thomas T.C. Campbell, Judge

Representing Appellant (Plaintiff/Defendant): Bill G. Hibbler of Bill G. Hibbler, P.C., Cheyenne, Wyoming

Representing Appellee (Plaintiff/Defendant): David G. Ditto of Associated Legal Group, Cheyenne, Wyoming

Date of Decision: April 10, 2012

Facts: Berthel Land and Livestock (Berthel) entered into a Pipeline Easement Agreement (Agreement) with Rockies Express Pipeline (Rockies Express). After completion of the pipeline, Berthel filed an action against Rockies Express asserting claims for breach of contract and fraudulent inducement. The breach of contract claims alleged a failure to remove rock from the property and a failure to provide required as-built drawings of the completed pipeline, and the fraudulent inducement claim alleged that Rockies Express never intended to remove the rock as required by the Agreement.

The district court granted Berthel summary judgment as to liability on the breach of contract claims, but required a trial on damages on those claims, and denied summary judgment on the fraudulent inducement claim. After a bench trial, the district court found that Berthel had not proven its fraudulent inducement claim or its damages for the rock removal breach. The district court awarded damages for the as-built drawings breach, but at a lesser amount than Berthel requested. Berthel appealed, and Rockies Express cross-appealed.

Issues: Berthel presented the following issues on appeal: Did the district court err as a matter of law by interpreting that the pipeline easement agreement ¶8(m), requires removal of “surface” rocks only? Are the district court’s factual determinations concerning damages for ¶8(m), rock removal, and/or ¶8(q), as-built survey, clearly erroneous? Is the district court’s conclusion that fraudulent inducement was not committed clearly erroneous?

In its cross-appeal, Rockies Express presents these issues: Did the trial court commit error by granting summary judgment for Berthel on the issue of liability for failure to provide Berthel with an as-built survey? Did the trial court commit error by granting summary judgment for Berthel on the issue of liability for failure to remove rocks from the easement? Did the trial court commit error by allowing evidence of “bids” from Berthel’s contractors and engineers that failed to reflect the correct measure of damages?

Holdings: The Court affirmed the district court’s decision on the fraudulent inducement claim and rock removal damages. The Court affirmed in part and reversed in part the award of damages for the as-built drawings breach.

Justice Golden delivered the opinion for the court.

Summary 2012 WY 7

Summary of Decision January 18, 2012

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it is issued.  You should use this citation whenever you cite the opinion, with a P.3d parallel citation.  You will also note when you look at the opinion that all of the paragraphs are numbered.  When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance] 

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

Case Name:  Schlinger v. McGhee

Citation:  2012 WY 7

Docket Number:  S-10-0185

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465027

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

Representing Appellants (Defendants):  Scott P. Klosterman and Patrick J. Murphy of Williams, Porter, Day & Neville, P.C., Casper, Wyoming.  Argument by Mr. Klosterman.

Representing Appellees (Plaintiffs):  J. Denny Moffett of Moffett & Associates, PC, Jackson, Wyoming; and Heather Noble, Jackson, Wyoming.  Argument by Ms. Noble.

Date of Decision: January 18, 2012

Facts:  Appellant, acting as President of his construction company, entered into an oral agreement to lease his business and all associated equipment and land to the appellees.  Appellees formed an LLC as the entity to lease and operate the business. After approximately eight months, Appellant determined the appellees were not properly managing the business and terminated the oral lease agreement.  The parties dispute the financial implications of the termination.  After a bench trial, the district court determined Appellants owed Appellees and their LLC $206,875.70. 

Issues:  I) Whether the district court erred when it found, based on incomplete and unreliable bookkeeping spreadsheets, that Appellants owed Appellees $206,875.70;  A)  Whether the district court erred in its judicial accounting when it failed to credit Appellants with $312,319.12 of business expenses Appellants paid for Appellees in March, April and May 2004 B) Whether the district court further erred when it accepted the bookkeeper’s unreliable and incomplete “tie out ending balance” number of $206,875.70 as its judicial accounting award;  II) Whether the district court erred when it awarded pre-judgment interest to Appellees where the underlying debt was unliquidated and Appellees provided no notice of that required sum to Appellants; III) Whether the district court abused its discretion when it denied Appellants’ unjust enrichment claims; A) Whether the district court incorrectly rejected Appellants’ $10,800 claim for reimbursement for Appellant’s individual time and help in running the business from March – August, 2004; B) Whether the district court incorrectly rejected Appellees’ $48,000 claim for reimbursement for bonding two projects for Appellants; C) Whether the district court erred when it rejected Appellees’ $26,475 claim for reimbursement of one-half of the salary and bonus paid to an employee; and lastly, IV) Whether the district court’s judgment for $206,875.70 for Appellees should be reversed, and judgment entered for Appellants in the amount of $190,718.42.

Holdings:  The Court affirmed in part and reversed in part. 

As to issues I and II, the Court concluded the district court made a mistake in awarding damages based on speculative and inaccurate accounting that lacked reasonable certainty.  The testimony of both employed accountants indicated likely gaps in the accounting that led to the ending balance.  The judgment in favor of the appellees on this claim was reversed, rendering issue II moot.

As to the unjust enrichment claims (issues III), the Court found that Appellants had the burden of presenting sufficient credible evidence to support a judicial determination in their favor, and they did not do so. No evidence was presented as to the salaried employee’s involvement with any particular project, and there was also no evidence as to the profit margin on any particular project.  The judgment on this claim was affirmed.

As to issue IV, The Court found Appellants conclusion was based on the arguments they made under Issues I and III regarding their contract and unjust enrichment claims. Given the Court rejected those arguments, the Court did not choose to further address this issue.

  

In conclusion, the Court reversed the district court’s judgment on the appellees’ breach of contract claim and rejected Appellants’ argument that they should be awarded breach of contract damages.  The district court judgment on the unjust enrichment claims was affirmed.

   

J. Golden delivered the opinion for the court.

Summary 2011 WY 82

Summary of Decision May 23, 2011


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Strong Construction, Inc. v. City of Torrington,

Citation: 2011 WY 82

Docket Number: S-10-0171

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462280

Appeal from the District Court of Goshen County, Honorable Keith G. Kautz, Judge

Representing Appellant (Defendant): Douglas W. Weaver, Wheatland, Wyoming.

Representing Appellee (Plaintiff): James A. Eddington, Jones & Eddington Law Offices, Torrington, Wyoming.

Date of Decision: May 23, 2011

Facts: Appellee filed suit against Appellant alleging breach of contract based on Appellant’s failure to supply and install water pump motors that conformed to contract specifications. After a bench trial, the district court entered judgment in favor of the Appellee. Strong challenges the district court’s decision.

Issues: Whether the court erred when it held Appellant breached the agreement with the Appellee and awarded Appellee damages and attorney fees. Whether Appellee’s claim was barred by the one year warranty period, pursuant to the Standard General Conditions of the construction contract. Whether Appellant is obligated to pay any portion of the judgment attributed to Appellee’s City Engineers’ negligence.

Holdings: Before the district court’s conclusion that Appellant breached the Agreement with the City can be addressed, it must be determined if the City engineer received the specifications for review as required by the contract. Based on a review of the record, there is ample evidence to support the district court’s decision that the specifications were provided to the City Engineer prior to approval of the project submittals and that the engineer relied on the information it contained in approving the project submittals.

Where a building contract refers to the plans and specifications and makes them a part of itself, the contract is to be construed as to its terms and scope together with the plans and specifications. Where the plans and specifications are by express terms made a part of the contract, the terms of the plans and specifications will control with the same force as if they were physically incorporated in the very contract itself. The specification criteria in the parties’ Agreement required Appellant to furnish complete details of the pump and motor it intended to supply and to provide those submittals to the City Engineer for approval prior to acceptance of the pump and motor for installation. The information about the motors in question in the Guidelines provided constitute a “Shop Drawing” as that term is defined in the General Conditions provision of the contract and, as a result, they were incorporated into the Agreement upon City Engineer’s approval of that document. Therefore, the district court did not err in determining that Appellant breached the Agreement with the City by failing to provide motors that conformed to the specifications in the parties’ Agreement.

The Appellee’s breach of contract claim is not barred by the provision of the contract that sets forth a warranty that the contractor will repair defects for a specified period of time. The Appellee did not allege that the work was defective. Rather, the claim was that Appellant breached the contract by failing to provide motors that conformed to agreed-upon specifications.

Appellant contends the damages awarded by the district court should be apportioned according to the respective degrees of fault of the parties under a negligence theory of liability. After concluding that Appellant breached the Agreement with the Appellee, it was found that several of the parties in the process were negligent. The court, however, did not apportion the damages. Since the breach of contract claim involves Appellant’s failure to supply the motor identified in the guidelines that were approved by the city engineer, the provision in the contract that would hold the Appellee responsible for the negligence of the City Engineer for the “specification of a specific means, method, technique, sequence, or procedure of construction” does not relieve Appellant of its liability.

Appellant urges the adoption of the principles of comparative fault in the context of a claim for breach of contract. However, with no cogent argument or pertinent authority suggesting that the tort concept of fault has a counterpart in a breach of contract action, or that contractual damages should be similarly apportioned was presented. In order to recover for breach of contract, the nonbreaching party must prove that it has substantially performed the conditions of the breaching party’s performance (or that performance was excused). If it fails to do so, it obtains no recovery. If it does establish this predicate, it is entitled to recover all damages foreseeably caused by the other party’s breach. Contract damages normally are awarded on an all-or-nothing basis. While the breaching party is liable only for damages foreseeably caused by its breach, there is no apportionment of that amount even if less than perfect performance of the conditions by the nonbreaching party contributed in some measure to the loss. Parties to a contract have the power to specifically delineate the scope of their liability at the time the contract is formed. Thus, there is nothing unfair in defining a contracting party’s liability by the scope of its promise as reflected by the agreement of the parties. Indeed, this is required by the very nature of contract law, where potential liability is determined in advance by the parties.

Although Wyo. Stat. 1-1-109 dealing with comparative fault has been extended to strict tort liability and products liability actions, the statute does not provide any indication that comparative fault is applicable to a breach of contract action. The comparative fault statute applies to tort claims where a party seeks personal injury or property damages caused by the fault of another. The Appellee, however, did not pursue a claim for personal injury or property damage in this case. The comparative fault statute is not applicable to this breach of contract action.

Affirmed.

J. Burke delivered the opinion for the court.

Summary 2011 WY 74

Summary of Decision May 2, 2011


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Joe’s Concrete and Lumber, Inc. v. Concrete Works of Colorado, Inc.

Citation: 2011 WY 74

Docket Number: S-10-0036

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462090

Appeal from the District Court of Sublette County, Honorable Marvin L. Tyler, Judge

Representing Appellants (Plaintiffs): Andrea L. Richard of The Richard Law Firm, Jackson, Wyoming.

Representing Appellee (Defendants): William H. Twichell, Pinedale, Wyoming.

Date of Decision: May 2, 2011

Facts: After a jury found that Appellees breached its contract with them, Appellants presented evidence documenting its claim for attorney fees. The district court declined to consider the documentation on the ground that it was not presented at trial, concluded the evidence presented at trial did not support an attorney fees award and denied the attorney fees claim in its entirety. On appeal, Appellants contend the district court erred in failing to consider the evidence.

Issues: Whether the district court properly denied attorney fees.

Holdings: Generally, Wyoming subscribes to the American rule regarding recovery of attorney fees, making each party responsible for its own attorney fees unless an award of fees is permitted by contract or statute. In this case, the jury found the invoices Appellant presented to Appellee with each truckload of concrete constituted contracts and that Appellee breached the contracts when it failed to pay the invoice amounts in full. The contracts provided that in the event Appellant was forced to take action to collect on the accounts, Appellee would be charged for the costs and attorney fees incurred in the collection efforts. Appellant did, in fact, take action to collect on the accounts and a jury awarded it in damages. In accordance with the terms of the contracts, Appellee was obligated to pay costs and attorney fees.

The issue of attorney fees may be addressed as an element of damages, or it may be addressed through the filing of a post-judgment motion as described in W.R.C.P. Rule 54. Pursuant to the language in Rule 54(A), claims for attorney fees are to be made by motion unless the substantive law governing the action provides for their recovery as an element of damages to be proved at trial. Where the parties’ contract provides that legal costs were part of the damages available in the event of its breach, the attorney fees fall within the substantive claim exception to F.R.C.P. 54 and are to be proven at trial, not by post-trial motion. In contrast, where the contract provides for the recovery of fees by the prevailing party, such fees are not an element of damages to be proved at trial but are collateral to the merits of the case requiring a Rule 54(d)(2) motion.

The contracts at issue in the present case did not provide that attorney fees were an element of damages to be proved at trial nor did they expressly provide that the prevailing party was entitled to fees. The contracts provided only that in the event Appellant was forced to take action to collect on the accounts, Appellee would be charged for the attorney fees incurred in the collection efforts. However, it is logical to conclude the parties intended that Appellee, as the buyer, would only be obligated to pay attorney fees if Appellant successfully proved Appellee actually owed the amounts claimed to be due under the contracts. In essence, these contracts were prevailing party contracts. As contemplated by the contract language, Appellant was forced to take action to collect amounts due on the accounts. Appellant filed a breach of contract action in which it prevailed. It was, therefore, entitled to recover its fees. Under these circumstances, the attorney fees were not an element of damages to be proved at trial but were collateral to the merits of the case.

The case is reversed and remanded with instructions that Appellant is contractually entitled to attorney fees. The district court must consider all attorney fees evidence currently contained in the record and determine whether: 1) the fee charged represents the product of reasonable hours times a reasonable rate; and 2) other factors of discretionary application should be considered to adjust the fee either upward or downward.

C.J. Kite delivered the opinion for the court.