Law Library Letter: contract

Showing posts with label contract. Show all posts

Thursday, October 17, 2013

Summary 2013 WY 129

Summary of Decision October 16, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: GARY L. HOPKINS and MARY HOPKINS v. BANK OF THE WEST, RANDAL L. BURNETT and G & R ENTERPRISES, LLC

Docket Number: S-13-0005

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

Appeal from the District Court of Albany County, the Honorable Jeffrey A. Donnell, Judge

Representing Appellants: A. Joe Hageman, Laramie Wyoming.

Representing Appellee Bank of the West: Terry W. Connolly, Patton & Davison, Cheyenne, Wyoming.

Representing Appellees Randal L. Burnett and G & R Enterprises, LLC: No appearance.

Date of Decision: October 16, 2013

Facts: Gary L. Hopkins and Mary Hopkins appeal the district court’s order granting summary judgment in favor of Bank of the West.[1] The Hopkins claim that material facts concerning a contract are in dispute, making summary judgment inappropriate. Specifically, they argue the contract’s language is ambiguous and the district court should have considered extrinsic evidence of the parties’ intent when interpreting the contract.

Issues: Did the district court err when it granted summary judgment in favor of Bank of the West after finding that the contract between the parties was unambiguous after limiting its analysis to the four corners of the contract?

Holdings/Decison: We find that the terms of the contract regarding the release of Hopkins as a guarantor on the Bank of the West loan and a release of the second mortgages on his properties were unambiguous. Further, the terms of the contract are not subject to special or technical usage that would require extrinsic evidence to determine the parties’ intent. The district court’s order granting summary judgment in favor of Bank of the West is 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]

Thursday, January 17, 2013

Summary 2013 WY 8

Summary of Decision January 17, 2013

Justice Burke delivered the opinion for the Court. Reversed and remanded. Justice Voigt respectfully dissented.

Case Name: EDWARD VENARD v. JACKSON HOLE PARAGLIDING, LLC, a Wyoming LLC, TOM BARTLETT, SCOTT HARRIS, MATT COMBS, JON HUNT, ANDREW FRYE, and JEFF COULTER

Docket Number: S-11-0232

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

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

Representing Appellant: P. Richard Meyer and Robert N. Williams, Meyer & Williams, Attorneys at Law, P.C., Jackson, Wyoming. Argument by Mr. Meyer.

Representing Appellees: Cameron S. Walker, Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming; Timothy E. Herr, Herr & Zapala, LLP, San Jose, California; and David G. Lewis, Jackson, Wyoming. Argument by Mr. Walker.

Date of Decision: January 17, 2013

Facts: Appellant, Edward Venard, filed suit against Appellees in Wyoming district court to recover damages for personal injuries sustained during a paragliding lesson. Appellees filed a motion to dismiss seeking to enforce a forum selection clause contained in a “Release, Waiver and Assumption of Risk Agreement” that Mr. Venard had signed as a condition of his membership with the United States Hang Gliding and Paragliding Association (USHPA). Several of the Appellees had signed similar agreements with USHPA, but none of the Appellees was a party to the agreement between Mr. Venard and USHPA. Based upon the forum selection clause, Appellees contended that California was the appropriate forum for litigation of the dispute. The district court agreed and granted motion to dismiss. Mr. Venard challenged that decision in this appeal.

Issue: Did the district court abuse its discretion by granting Appellees’ Motion to Dismiss based on a forum selection clause in the Release, Waiver and Assumption of Risk Agreement signed by Mr. Venard?

Holdings: The forum selection clause contained in the agreement between Mr. Venard and USHPA is not enforceable as between the parties to the present litigation. Appellees were not parties to that contract and did not consent in advance to the jurisdiction of the California courts. Accordingly, the Court concluded that the district court abused its discretion in dismissing the complaint. The Court reversed and remanded for further proceedings consistent with this opinion.

Justice Voigt respectfully dissented. To read the full opinion and dissenting opinion, please click on the URL link above.

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]

Friday, June 29, 2012

Summary 2012 WY 80

Summary of Decision June 12, 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: Jackman Constr. v. Town of Baggs, Wyo.

Citation: 2012 WY 80

Docket Number: S-11-0252

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

Appeal from the District Court of Carbon County, The Honorable Wade E. Waldrip, Judge

Representing Appellant (Plaintiff): Clark Stith, Rock Springs, WY.

Representing Appellee (Defendant): Thomas A. Thompson and Matthew E. Riehl of MacPherson, Kelly & Thompson, LLC, Rawlins, WY. Argument by Mr. Riehl.

Date of Decision: June 12, 2012

Facts: Appellant was awarded a contract to improve Appellee’s town water treatment plant. After the project suffered significant delays, payments were submitted and accepted, and a dispute ensued as to whether or not the last payment constituted “final payment.” Appellant filed a governmental claim as well as a complaint for breach of contract, both seeking damages from Appellee for unjustified assessment of liquidated damages and other damages due to additional expenses incurred by Appellant as a result of delay caused by Appellee. Appellee filed its “Motion for Summary Judgment,” which the district court granted. The court stated that pursuant to the clear and unambiguous contractual terms, Appellant failed to make a written request of its claim and also waived any further claim against Appellee by accepting final payment. Furthermore, Appellant’s failure to notify Appellee of any claim, during any time, could not absolve it of its failure to abide by the clear contractual terms. This appeal followed.

Issues: A) Whether the district court erred in finding no genuine issues of material fact and that the last payment by Appellee to Appellant was “Final Payment” under the contract between the parties; B) Whether the district court erred in finding no genuine issues of material fact and that Appellee did not expressly acknowledge in writing that the issue of liquidated damages was still unsettled when it made its last payment to Appellant; and C)Whether the district court erred in finding no genuine issues of material fact and that Appellant was required to submit, but had not submitted, a written “claim” in connection with Appellee’s imposition of liquidated damages.

Holdings: The Court concluded sufficient evidence from the record and timeline supported the district court’s conclusion that the last payment from Appellee to Appellant was indeed “final payment.” The Court found that under the clear and unambiguous terms of the contract, Appellant agreed to waive all claims by accepting “final payment,” which it did.

Affirmed.

J. Hill delivered the opinion for the court.

Thursday, April 19, 2012

Summary 2012 WY 60

Summary of Decision April 18, 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: Shaw Construction, LLC, v. Rocky Mountain Hardware, Inc.

Citation: 2012 WY 60

Docket Number: S-11-0171

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465426

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

Representing Appellant (Defendant): Peter F. Moyer, Jackson, Wyoming.

Representing Appellee (Plaintiff): Mark D. Sullivan, Mark D. Sullivan, P.C., Wilson, Wyoming.

Date of Decision: April 18, 2012

Facts: Appellant appeals from the district court’s order requiring it to pay for hardware furnished by Appellee on a construction project. The district court also awarded contractual interest and attorney fees under the terms of a 2003 credit agreement between the parties. Appellant claims the district court erred by concluding it had entered into a contract with Appellee.

Issues: Whether Appellee is entitled to contract damages, 21% interest and attorney’s fees, based on a 2003 account credit application signed solely by an unknown “guarantor” over 4 years prior to a 2008 construction job, where the district court expressly found that there was no contract between the parties for the 2008 job.

Holdings: Under the credit agreement, Appellant agreed to pay the costs of collection, including legal fees, and interest on any unpaid balances. Although Appellant suggested that the agreement was not valid because no one could identify the Appellant representative who signed it and it was only signed in the “Personal Guarantee” space, the evidence demonstrated that the application was, in fact, authorized by Appellant as the credit references were provided on Appellant letterhead. Appellee also sent Appellant a confirmatory letter, indicating the credit account had been opened and there is no indication Appellant objected. The best evidence that Appellant authorized the application and entered into the credit agreement was that following the opening of the account, the parties operated under this agreement for several years prior to the construction project at issue. The district court properly ruled the credit agreement applied in this case and, pursuant to its terms, Appellant was responsible for the principal balance due on the hardware contract, together with contractual interest and attorneys fees. Affirmed.

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

Thursday, June 23, 2011

Summary 2011 WY 97

Summary of Decision June 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: Hunter v. Reece

Citation: 2011 WY 97

Docket Number: S-10-0195

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463286

Appeal from the District Court of Sheridan County, the Honorable John G. Fenn, Judge.

Representing Appellant (Defendant): Jeffrey J. Gonda and Amanda K. Roberts, Lonabaugh & Riggs, LLP, Sheridan, Wyoming. Argument by Ms. Roberts.

Representing Appellee (Plaintiff): Vincent Schutte, Kinnaird Law Office, PC, Sheridan, Wyoming.

Date of Decision: June 23, 2011

Facts: Appellants owned and operated a construction business in Sheridan County, Wyoming. In the fall of 2006, Appellee was doing renovation work at the home of Appellants. He noticed Appellant watching a television program about “flipping” houses. According to trial testimony from both parties, flipping a house generally involves purchasing a house that needs improvements, making those improvements, and selling the house, usually in a relatively short period of time, and preferably for a profit. Appellee and Appellant both commented that they would be interested in flipping a house.

After further discussions among the Appellees and Appellants, the two couples agreed to flip a house located in Sheridan. Later, they all met to put their agreement in writing, with Appellants typing up the document. The contract was signed by the parties, and dated October 28, 2006. Work on the project began in November of 2006. At the end of January 2007, an arsonist set fire to the house, causing substantial damage. The parties then entered into a new “Fire Contract” in which they agreed to use the insurance proceeds to restore the house to the condition it was in before the fire. The parties further agreed that once the house was restored, they would revert back to their original agreement. In August of 2007, the parties agreed that the house had been restored, and that the original agreement was again in effect. In October of 2007, the Appellants became dissatisfied with the slow progress on the project, and with what they perceived as the poor quality of some of Appellee’s work. They confronted Appellee about their dissatisfactions, an argument ensued, and the Appellants eventually told Appellees to stop working on the project.

On April 8, 2008, the Appellees filed suit against the Appellants. The two-page complaint sought a declaratory judgment that the contract quoted above “is a valid and enforceable agreement,” and alleged that the Appellees were entitled to “receive 50% or ½ of net profit after payment of cost of renovation and purchase price.” The Appellants answered, admitting the existence and validity of the contract, but generally denying the other allegations. The Appellants also pleaded counterclaims, including breach of contract by the Appellees.

The parties engaged in discovery and other trial preparations until, on August 27, 2009, the Appellees moved the district court to order mediation of the dispute. Mediation was ordered, but was apparently unsuccessful, because on September 29, 2009, the district court set a trial date in the matter. Prior to trial, the parties stipulated to the existence and validity of their contract, although each asserted a different interpretation of that contract. The Appellees contended that they were entitled to payment for their labor on the project, in addition to one half of the profits. The Appellants contended that the Appellees were entitled only to one half of the profits, because the agreement did not provide that Appelles would be paid for labor.

A two-day bench trial commenced on March 3, 2010. At the close of trial, the district court announced judgment that the parties’ contract was not valid because there had been no meeting of the minds regarding an essential term of the agreement, that being whether Appellees were to be paid for their work on the project in addition to receiving one half of the profits. The district court then invoked the theory of unjust enrichment to award all of the profits to Appellees, an amount the district court calculated as $21,989.07. A written judgment embodying the district court’s decision was entered on March 26, 2010.

On April 8, 2010, the Appellants filed a motion for new trial or, in the alternative, to amend the judgment, asserting generally that the parties had stipulated to the validity of their contract, that it was improper to apply a theory of unjust enrichment when a valid contract existed, and that unjust enrichment had never been pleaded by the Appellees. A hearing was held, and the district court entered an order denying the motion on July 2, 2010. The Appellants appealed both the judgment and the district court’s denial of their motion for new trial or amended judgment.

Issues: The Appellants present three issues: Whether the district court erred by disregarding the parties’ stipulation that a valid and enforceable contract existed and by raising a claim of unjust enrichment sua sponte. Whether the district court erred in finding that Appellees proved the elements of unjust enrichment. Whether the district court erred in denying Appellants’ Rule 59 motion for new trial and alternative motion to amend the judgment.

Holdings: “Whether a contract has been entered into depends on the intent of the parties and is a question of fact.” Throughout the litigation, the parties disagreed about the interpretation of their contract, but consistently agreed that they had entered into a contract. The district court never reached a decision on the claim that the Appellees had breached the agreement, instead finding that no contract existed and awarding damages to the Appellees on an unjust enrichment theory. It is up to the district court, in the first instance, to consider the conflicting evidence and decide whether the Appellees breached the contract, and if so, what damages were caused by the breach. The Court returned this case to the district court to determine damages. Reversed and remanded for such additional proceedings as may be needed in accordance with this decision.

Justice Burke delivered the opinion for the court.

Monday, March 21, 2011

Summary 2011 WY 50

Summary of Decision March 21, 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: Orthopedics of Jackson Hole, P.C. v. Ford

Citation: 2011 WY 50

Docket Number: S-09-0136

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461833

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

Representing Appellant (Defendant): Gary R. Scott of Hirst Applegate, LLP, Cheyenne, Wyoming

Representing Appellee (Plaintiff): Paul J. Hickey and O’Kelley H. Pearson of Hickey & Evans, LLP, Cheyenne, Wyoming; and Joel M. Vincent of Vincent & Vincent, Riverton, Wyoming. Argument by Mr. Vincent.

Date of Decision: March 21, 2011

Facts: Appellant is a professional organization founded by five orthopedic surgeons in 1998. Appellee is an orthopedic surgeon who joined the organization in 2000, at which time he received one share of stock. In 2005, Appellee left the professional organization. The parties could not agree on the value of the one share of stock, prompting Appellee to commence the instant legal action. Appellee brought a petition for a declaratory judgment as to the value of the stock as well as other causes of action. Appellant counterclaimed that in leaving at the time he did, Appellee breached his fiduciary duty to the organization. Appellant also brought a promissory estoppel counterclaim against, asserting it incurred extra costs based on an alleged promise by Appellee, made in 2004, to continue working for Appellant for five to ten years. After a bench trial, the district court accepted the valuation of the stock as presented by Appellee. The district court also denied all Appellant’s counterclaims.

Issues: 1) Whether the trial court erred when it found that Appellee signed a 1998 shareholder’s agreement, and thus that it was that agreement that was the relevant agreement for purposes of valuing Appellee’s one share of Appellant’s stock; 2) Whether the trial court erred when it then reformed the 1998 shareholder’s agreement and failed to apply the valuation formula contained in that agreement; 3) Whether the trial court erred when it failed to apply the valuation formula agreed to by Appellee in a shareholders’ meeting in August 2003; 4) Whether the trial court erred when it denied Appellant’s Motion in Limine, and allowed Appellee on the eve of trial to change the theory of his case as to the relevant valuation formula; 5) Whether the trial court erred when it found that Appellant failed to prove by a preponderance of the evidence its counterclaims for promissory estoppel and breach of fiduciary duty.

Holdings: The Court reversed the district court’s decision as to the valuation of the stock and remanded for further proceedings on the issue. The district court had reasoned that neither the 2003 Formula nor the 2005 Agreement applied because they were not unanimously adopted, as required by the terms of the original 1998 Agreement. Although legally technically correct, the conclusion was improper because it went beyond the issues presented by the parties, who, in their pleadings and all pretrial proceedings, agreed the language of the 2003 Formula would govern the valuation in the context of this litigation. The Court further found the legal and factual evidence in the record was sufficient to determine the proper value of the stock, which was the amount accepted by the appellee at trial.

As to the Appellant’s counterclaims, the Court affirmed the district court’s denial of the counterclaims. On the issue of promissory estoppel, the Court found that Appellant failed to meet its burden of proving, under the strict standard of proof required, that it acted in reliance on the appellee’s statement. Specifically the Court found no evidence that Appellant, through the actions of its shareholders, entered into a fifteen year lease because of the Appellee’s stated intention to continue practicing five to ten years.

As to the issue of a breach of fiduciary duty, framed as a claim in the context of Wyo. Stat. Ann. § 17-16-830(a), the Court found the statute did not apply to the current situation, had nothing to do with Appellee’s statutory corporate responsibilities because Appellee resigned as an employee, and that Appellee exercised good faith under the circumstances.

In summary, the court reversed the district court’s decision as to the valuation of the stock and remanded for further proceedings on the issue. However, the district court was correct in denying Appellant’s claims for promissory estoppel and breach of fiduciary duty, and that part of the judgment was affirmed.

J. Golden delivered the opinion for the court.

Friday, February 18, 2011

Summary 2011 WY 29

Summary 2011 WY 27

Summary of Decision February 18, 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: Knight v. TCB Construction and Design, LLC

Citation: 2011 WY 27

Docket Number: S-10-0173

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461772

Appeal from the District Court of Albany County, Honorable Jeffrey A. Donnell, Judge

Representing Appellant (Plaintiff): Jason M. Tangeman of Nicholas & Tangeman, , Laramie, Wyoming.

Representing Appellee (Defendants): Megan L. Hayes and Allen Gardzelewski of Corthell and King, Laramie, Wyoming.

Date of Decision: February 18, 2011

Appellant appeals a district court’s damages award and findings relating to liability arising out of a construction contract.

Issues: Whether the district court erred as a matter of law when it determined that a second contract superseded the first and relieved the individual Appellee of personal liability. Whether the district court erred as a matter of law in the method it used to calculate damages.

Holdings: Generally, contracts―even fully executed ones―can be cancelled or rescinded by the mutual consent of the parties. Rescission generally must be exercised in toto and is applied to the contract in its entirety with the result that what has been done is wholly undone and no contract provisions remain in force to bind either of the parties. The intent to rescind a contract does not need to be express or in writing, but can be inferred from the conduct of the parties and the surrounding circumstances. In the present action, the parties’ conduct, including organizing TCB Construction, LLC, materially changing the terms of the contract, and changing the parties, demonstrates that the parties intended to rescind the Agreement, thus leaving the subsequent Addendum to control. Consequently, because the Agreement was rescinded, and the individual Appellee was not a party to the Addendum, he is not personally liable for any damages resulting from the breach of the Addendum and the district court did not err in finding the same.

It is a common and necessary practice for contracts to refer to and obtain meaning from other documents. A contract may refer elsewhere for full understanding of its terms, just as it may adopt another document by reference. The Addendum did incorporate by reference the provisions pertaining to the construction of the house that were listed in the original Agreement. However, it was not the parties’ intent to incorporate the entire Agreement by reference, because they materially changed some of the terms, including the contract price. Incorporating by reference some of the provisions of the Agreement does not change the fact that the parties had rescinded the Agreement when they entered into the Addendum. Incorporating by reference some of the provisions from that Agreement was done as a matter of convenience, but that act alone did not make the Agreement, as a whole, operative again.

Appellant also argues that the district court was bound by a pre-trial summary judgment ruling in which the district court refused to grant the individual Appellee a summary judgment on the issue of his liability. He relies on the law of the case doctrine to support his argument that the district court was bound by its summary judgment ruling. The law of the case doctrine provides that a court’s decision on an issue of law made at one stage of a case becomes a binding precedent to be followed in successive stages of the same litigation. However, the district court never made a final determination at the summary judgment stage as to personal liability. What the district court was considering at the summary judgment stage was whether factual issues existed that could give rise to personal liability, without considering the effect of the Addendum. The district court ultimately made a determination of liability at the end of the trial after it had considered evidence relating to the subsequent Addendum. Accordingly, the law of the case doctrine does not apply in this situation and the district court was not bound by the initial summary judgment ruling. The district court did not err in finding that the Addendum controlled and that only TCB Construction, LLC was liable for damages for breach of contract.

Legal remedy for a breach of contract is the award of damages designed to place the plaintiff in the same position in which he would have been had the contract been fully performed, less proper deductions. The plaintiff has the burden of producing sufficient evidence to prove his damages. Damages must be proven with a reasonable degree of certainty, and a court may not resort to speculation or conjecture in determining the proper amount to award. Appellant concedes in his brief that the district court’s damages calculation “may be a proper methodology for calculating damages in a breach of contract/unfinished construction case.” Nevertheless, he takes exception with the district court’s damages calculation and implies that this is a novel damages case which the district court failed to identify appropriately and that the measure of damages should be whatever money was left in TCB Construction, LLC’s bank account rather than a calculation of the actual damages proved to have been suffered by Knight. There is no authority for application of this novel damages calculation. The methodology employed by the district court to calculate damages comported with the above-stated law and accurately reflected Appellant’s provable damages.

The district court correctly held that the Addendum superseded the Agreement, because the record supports the conclusion that the parties intended to rescind the Agreement. Consequently, the individual appellee and his successor estate were relieved of personal liability arising out of the breach of the Addendum. The district court used the appropriate method to calculate damages, and it did not abuse its discretion in the amount of damages awarded as the damages award accurately reflected Appellant’s proven damages.

Affirmed.

J. Voigt delivered the opinion for the court.

Wednesday, August 25, 2010

Summary 2010 WY 121

Summary of Decision issued August 25, 2010

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

Case Name: Davison v. Wyo. Game and Fish Comm’n

Citation: 2010 WY 121

Docket Number: S-10-0007

Appeal from the District Court of Natrona County, the Honorable David B. Park, Judge.

Representing Appellants Davison; Richner & Marton Ranch, Inc.: Harriet M. Hageman and Kara Brighton, Hageman & Brighton, PC, Cheyenne, Wyoming.

Representing Appellees Wyo. Game & Fish and Wyo. Game & Fish Dept.: Bruce A. Salzburg, Attorney General; Jay A. Jerde, Deputy Attorney General; James Kaste, Senior Assistant Attorney General.

Facts/Discussion: Davison, Richner and Marton Ranch, Inc. (Landowners) sought reversal of the district court’s decision granting summary judgment in favor of the Wyoming Game and Fish Commission and the Wyoming Game and Fish Department (collectively called the Commission) in their dispute over the interpretation of an easement the Commission has over a portion of the Landowners’ properties.

Is the Lusby Easement ambiguous: The Landowners and Commission agree that the Easement unambiguously provides that the landward boundary of the walking easement is a line located one hundred feet from the high water line of the river. It is only the streamside boundary that was in dispute. The Landowners contend that the Easement clearly and unambiguously states that the streamside boundary of the Easement is the high water line of the river. The Commission asserts that the Easement established the middle of the river as the streamside boundary of the walking easement. All parties agreed that the single “easement line” described in the Plat and Survey was intended to be the landward boundary of the walking easement. Nowhere in the Lusby Easement is there any explicit designation of the streamside boundary. The Court concluded the Lusby Easement was ambiguous. First, the language could be read to establish an easement for the purpose of fishing and migratory waterfowl hunting, with its streamside boundary at the middle of the river. From another point of view, the language could be read to establish a walking easement 100 feet in width with the streamside boundary at the high water line. Giving effect to both readings is impossible. The Court agreed with the district court that the “inconsistency between the seemingly restricted walk way for fisherman and hunters on one hand, and, on the other hand, the expressed intent within the easement to allow fishing and migratory bird hunting…creates an ambiguity within the easement.”
Interpreting the Lusby Easement using extrinsic evidence: Because the Lusby Easement deed was ambiguous, the merger doctrine did not preclude the Court from considering the extrinsic sales contract as an aid in interpreting the deed language. The Court found the sales contract and the Commission’s certifications firmly established that the Lusby Easement was meant to extend to the middle of the river. The Landowners presented no evidence on that point but relied on their position that the language of the Easement was plain and unambiguous.
Prescriptive easement: Because the Court affirmed the district court’s grant of summary judgment in favor of the Commission, there was no reason for the Commission to pursue a claim of prescriptive easement, and no need for the Court to consider the Landowners’ contention that the Commission could not claim a prescriptive easement under Wyoming law.
Location of the boat launching ramp: All parties agreed that the Lusby Easement’s description of the boat launching ramp was clear and unambiguous. Also, it was undisputed that the ramp was initially constructed in the specified location and later moved to a different spot at the request of Davison. In their brief, the Landowners assert the Davisons disagreed with the Commission’s rendition of what occurred in relation to the decision to move the boat ramp but did not provide their version. They did not provide a single citation to the record providing any factual support for their disagreement with the Commission’s rendition of what occurred. Therefore, the district court was correct in ruling that there were no genuine issues of material fact with regard to the relocation of the boat ramp.

Conclusion: The Court concluded the Lusby Easement was ambiguous. Since it was, the merger doctrine did not preclude the Court from considering the extrinsic sales contract. As to the remaining arguments, the Court cannot provide meaningful review when a party fails to provide pertinent authority, cogent argument or factual support.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/28d54cq .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

Thursday, August 05, 2010

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 .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2010 WY 105

Summary of Decision issued July 30, 2010

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

Case Name: Scherer, II v. Laramie Regional Airport Board

Citation: 2010 WY 105

Docket Number: S-09-0196

Appeal from the District Court of Albany County, the Honorable Jeffrey A. Donnell, Judge.

Representing Scherer: Theodore C. Preston of Prehoda, Leonard & Edwards, LLC, Laramie, Wyoming.

Representing Laramie Regional Airport Board: Matthew F.G. Castano of Brown & Hiser LLC, Laramie, Wyoming.

Facts/Discussion: Scherer appealed the judgment of the district court, entered after an unreported bench trial, that awarded Laramie Regional Airport Board (Board) $88,112.97 on its complaint that Scherer had breached paragraph 19 of the parties’ lease agreement which required Scherer to “keep the leased premises and adjacent area clean, orderly, and free of accumulated trash at his own expense.”
Scherer purchased a Quonset hut from the Board in the mid-1980’s. The parties executed a 20-year lease of the land underlying the hut located on Brees Field Airport near Laramie. Scherer used the hut as storage after operating an air freight business on the property. The lease expired in 2005 and according to the lease Scherer was to remove the hut at his own expense within 60 days of the expiration of the lease. He did not do so and neither did the Board until 2007. The Board filed a complaint against Scherer for the cost of restoring the leased property.
Scherer contended the district court’s interpretation created a conflict between paragraph 10 and 19. Scherer argued that he bore the expense of removal under only two scenarios: if he removed the hut within 60 days after the lease expired or if the Board removed the hut within 60 days after he failed to remove the hut. Because neither he nor the Board removed the hut within those specific timeframes, he must not bear the expense. Secondly, Scherer argued that the district court’s judgment was based on a factual error that restoration of the leased premises to its pre-lease condition required demolition of the hut. It was undisputed that the hut was present on the lease premises before the lease was executed. He argued that logically the hut’s demolition would not restore the leased premises to its pre-lease condition.
The district court stated that Scherer could do as he pleased with the hut during the lease. The lease contemplated potential transfer of the hut to the Board at the expiration of the lease, therefore the provision requiring him to keep the hut clean, orderly, and free of accumulated trash was reasonable and prudent. The lease provided protection to the Board against Scherer trashing the hut and then handing ownership of it to the Board by failing to remove it within the 60 day time period.

Conclusion: As the Court construed the lease, paragraphs 10 and 19 were unambiguous and clearly not in conflict. The Court’s construction of the lease between the Board and Scherer achieves, as did the district court’s construction, the objective of finding a reasonable construction which does not render meaningless any provision of the lease. The lease terms are unambiguous and paragraphs 10 and 19 are reconcilable as each provision serves a distinct purpose. The construction considered the lease as a whole keeping in mind the parties’ situation when the lease was executed, its subject matter, and the purposes of its execution.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/27fmxbh .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

Thursday, May 27, 2010

Summary 2010 WY 69

Summary of Decision issued May 27, 2010

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

Case Name: Reynolds v. West Park Hospital District

Citation: 2010 WY 69

Docket Number: S-09-0201

Appeal from the District Court of Park County, the Honorable Steven R. Cranfill, Judge.

Representing Reynolds: G. Mark Garrison of Garrison & Krisjansons, PC, Cody, Wyoming.

Representing Hospital: Chris Edwards of Simpson, Kepler & Edwards, LLC, The Cody, Wyoming division of Burg Simpson Eldredge Hersh & Jardine, PC.

Facts/Discussion: Reynolds appealed the Hospital District’s decision to terminate her employment. Reynolds began working for the Hospital in 1984. In 2003, she voluntarily resigned and entered into a Separation and Non-Disclosure Agreement. In consideration for Reynolds’ resignation and waiver of potential claims, the Hospital District paid her twelve weeks pay and continued providing health coverage. At about the same time, a different position was found and she returned to work for the Hospital District. In 2002, the Hospital District adopted a new employee handbook which generally provided that employees hired after January 1, 2002 would be “at-will” employees and could be terminated for any or no reason.

Termination based upon wrong personnel handbook: Reynolds argued that her employment was governed by the 1984 employee handbook because she received no consideration to modify her employment contract. By signing the Agreement in 2003 and accepting the terms, she waived any rights she may have had under the 1984 handbook. The Court noted that Reynolds did not present a copy of the alleged 1984 handbook and failed to demonstrate that had the handbook been in effect, the outcome would have differed.
Procedure for discipline not in handbook: At the time of her termination, Reynolds was an at-will employee and the Hospital District could terminate her for any reason or no reason.
Breach: Reynolds argued that because she was provided discipline short of termination on prior occasions, she had a reasonable expectation that the Hospital District would continue to treat her in the same manner. In Scherer Constr., LLC the Court held that the existence of a contractual implied covenant of good faith and fair dealing is obviously incompatible with the at-will presumption.

Conclusion: Reynolds’ resignation and release of claims in 2003 terminated any rights she may have had under whatever employee handbook may have been in effect before that date. Reynolds’ 2003 employment was at-will, under the applicable 2002 employee handbook, and her rights thereunder were not violated when she was terminated in 2007. Reynolds did not show that the conduct of the Hospital District was arbitrary, capricious, or contrary to law and she has not shown such conduct to have violated a covenant of good faith and fair dealing.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/2vt5t9f .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

Thursday, May 06, 2010

Summary 2010 WY 57

Summary of Decision issued May 4, 2010

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

Case Name: Ohio Casualty ins. Co. v. W.N. McMurry Construction Co.; McMurry v. Ohio Casualty Ins. Co.; McMurry v. BW Ins. Agency, Inc.

Citation: 2010 WY 57

Docket Number: S-08-0163; S-08-0164; S-08-0165

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

Representing Ohio Casualty Ins. Co.: Patrick J. Murphy and Scott P. Klosterman of Williams, Porter, Day & Neville, PC, Casper, Wyoming.

Representing W.N. McMurry Construction Co.: W.W. Reeves and Anna Reeves Olson of Park Street Law Office, Casper, Wyoming.

Representing BW Insurance: Billie L.M. Addleman and Richard A. Mincer of Hirst Applegate PC, Cheyenne, Wyoming.

Facts/Discussion: The three consolidated appeals arose out of McMurry Construction’s legal action to recover for two separate incidents involving two separate insurance policies. Both policies were issued to it by Ohio Casualty Ins. BW Insurance was the procuring agent for both policies.

S-08-0163: McMurry Construction sought through reformation to enforce a contract other than that into which it entered. The numbers ultimately reported to Ohio Casualty and supplied by McMurry Construction were unintentionally lower than they should have been. A review of the process showed there was no mistake reciprocal and common to both parties with each party being under the same misconception. It was a mistake in reaching the antecedent agreement which cannot be corrected by means of reformation.
S-08-0164: McMurry Construction challenged the interest calculations of the district court in its award of damages after reformation of the builder’s risk policy. Since the Court reversed the district court order requiring reformation, the appeal was moot and therefore dismissed.
S-08-0165: This appeal is based on the district court’s grant of summary judgment in favor of BW Insurance on contract and tort claims made against it by McMurry Construction as well as the district court’s denial of McMurry Construction’s attempt to reform its business auto insurance policy to gain coverage for a driver (Nelson) Ohio Casualty had expressly excluded from the policy. McMurry Construction recognized that failure to read an insurance policy will bar claims against an agent for breach of contract and negligence. It also admits it never read the business auto policy. It argued that the duty to read a policy is mitigated if the insured does not have a reasonable opportunity to read the policy. The Court found the argument specious since the policy was delivered in January and the accident in question occurred in September. McMurry Construction sought reformation of the business auto policy. Ashba of BW Insurance informed McMurry Construction that Nelson was covered under the policy. The Court’s question was whether Ashba and thus BW Insurance were acting as an agent for Ohio Casualty when he made that statement. Ohio Casualty made it clear in the auto policy that BW Insurance had no authority to alter the terms of the policy. BW Insurance did not have actual authority from Ohio Casualty to remove the exclusion-of-named-person endorsement.

Conclusion: (S-08-0163) The remedy of reformation was not available for the purpose of making a new and different contract for the parties. Instead, it was confined to establishment of the actual agreement reached between the parties as to the material terms of the contract. McMurry Construction and Ohio Casualty never reached a mutual agreement on material terms of the insurance policy – specifically the coverage limits. The decision of the district court was reversed.
(S-08-0164 dismissed)
(S-08-0165) McMurry Construction had plenty of time to read the business auto policy. The grant of summary judgment to BW Insurance on contract and tort claims was appropriate. Although Ashba told Fairservis that Nelson was covered, Ashba did not have the actual authority to effect such a change. Ohio Casualty never agreed to cover Nelson and never removed the exclusion-of-named-person endorsement from the policy. There was no basis for the reformation of the policy the district court’s decision on both of those issues was affirmed.

Appeal S-08-0163 was reversed. Appeal S-08-0164 was dismissed. Appeal S-08-0165 was affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/23fo39o .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2010 WY 56

Summary of Decision issued April 28, 2010

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

Case Name: M&M Auto Outlet v. Hill Investment Corp.

Citation: 2010 WY 56

Docket Number: S-09-0160

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Appellant M&M: Stephen R. Winship of Winship & Winship, PC, Casper, Wyoming.

Representing Appellee Hill: Richard D. Bush, David Evans and John A. Coppede of Hickey & Evans, LLP, Cheyenne, Wyoming.

Facts/Discussion: M&M and Hill, doing business as First Financial, Inc. (FFI) entered into a contract in which FFI agreed to purchase vehicle loans from M&M and perform collection activities on the loans at its expense. In the event an M&M customer became delinquent on a loan, the contract provided that M&M would pay FFI the “full recourse amount.” Alleging that M&M failed to pay the full recourse amount on delinquent loans in accordance with the contract, FFI filed a complaint for breach of contract.

Meaning of the contract: From the four corners of the agreement, it was clear the parties intended the agreement to be a full recourse agreement in which FFI would purchase from M&M the loans M&M made to its customers, M&M’s customers would then make payments on the loans directly to FFI and FFI, at its expense, was responsible for collection activities, except for repossession expenses. The disagreement concerns the lengths to which FFI was required to go in collecting payments, and that is something the agreement did not address. If M&M desired FFI’s collection efforts to include specific activities, it was free to incorporate the terms in the agreement.
Alleged Breach by FFI: M&M claimed it was excused from performing under the agreement because FFI breached the agreement when it failed to perform its collection activities in good faith. The agreement unambiguously provided that FFI was entitled to full recourse from M&M in cases where its collection activities proved unsuccessful. Because the parties’ business relationship spanned several years and both parties were experienced in the used car financing business, the Court was unwilling to infer that duties existed absent clear language in the contract or evidence indicating that was the parties’ intent at the time the agreement was executed.
Mitigation of damages: The contract clearly stated that in the event FFI was unsuccessful in collecting the amounts due, it was entitled to full recourse as expressly defined in the agreement. The agreement did not require FFI to repossess the vehicles as part of its collection activities. For the Court to conclude so would have imposed a duty on FFI that the contract did not require.
Sufficiency of the evidence to support summary judgment: W.R.C.P. 56(e) requires an affidavit be made on personal knowledge; set forth facts which are admissible in evidence; demonstrate the affiant’s competency to testify on the subject matter of the affidavit; and have attached to it the papers and documents to which it refers. Shaw, FFI’s general manager, attached a summary identifying the problem accounts, the date recourse was declared, buyback amount, accrued interest and the total due. The affidavit also included the full recourse program agreement and a list of the designated accounts he provided to M&M. W.R.E. 1006 provides that writings which cannot conveniently be examined in court may be presented in the form of a summary as long as the party makes the documents available for exam and copying by the opposing party. There was no contention that FFI did not make the actual documents available to M&M.
Prematurity of summary judgment: M&M asserted the summary judgment was premature because discovery had not been completed. On the same day as the summary judgment hearing, M&M signed a withdrawal of its motion to compel discovery stating that FFI had satisfactorily amended its discovery responses. Given that M&M stated it was satisfied with the discovery responses, the Court found no abuse of discretion in the district court’s denial of the motion for continuance.

Conclusion: M&M could have, but did not include specific collection activities in the contract with FFI. The Court declined to rewrite the agreement under the circumstances of the instant case. The agreement unambiguously provided that FFI was entitled to full recourse from M&M in cases where its collection activities proved unsuccessful. The agreement did not require FFI to repossess vehicles. The affidavit and documents provided for the motion for summary judgment were sufficient. M&M’s argument that discovery was not complete and so its motion for continuance should have been granted was not borne out by the record.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/2ao9n7l .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

Tuesday, March 23, 2010

Summary 2010 WY 34

Summary of Decision issued March 23, 2010

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

Case Name: Excel Construction, Inc. v. HKM Engineering, Inc.

Citation: 2010 WY 34

Docket Number: S-09-0120

Appeal from the District Court of Big Horn County, the Honorable Steven Cranfill, Judge.

Representing Appellant Excel: Patrick J. Murphy of Williams, Porter, Day & Neville, PC, Casper, Wyoming.

Representing Appellee HKM: Matthew F. McLean of Crowley Fleck PLLP, Bozeman, Montana.

Facts/Discussion: This was an appeal from a summary judgment granted to HKM by the district court. The case involves a dispute between Excel and HKM related to a contract for the replacement and improvement of water and sewer lines in Lovell, Wyoming. HKM agreed to be Lovell’s representative during construction. Lovell entered into a separate agreement with Excel to serve as general contractor on the project.

Modify Rissler decision: In Rissler, the trial court granted summary judgment in favor of HKM based upon the economic loss rule which bars recovery in tort when a plaintiff claims purely economic damages unaccompanied by physical injury to persons or property. Excel argued that the Court should modify its ruling in Rissler to permit suit by a contractor against a professional project engineer like HKM on theories of negligence and negligent misrepresentation. It argues that other stated have permitted suit against design and construction management professionals in spite of the economic loss rule. The Court believes that parties to a construction project have the opportunity to allocate the economic risks associated with the work and that they do not need the special protections of tort law to shield them from losses arising from risks including negligence of a design professional, which are inherent in performance of the contract.
Tortious interference with contract: HKM was charged with determining compliance with the contract, approving change orders and otherwise serving as decision-maker for Lovell by the express terms of the agreement. HKM therefore acted as an agent and as an agent with the power to make decisions on behalf of the town. Its actions, if they breached the contract, may entitle Excel to recover against the town for that breach but Excel may not recover from HKM on a theory of intentional interference with a contract for actions taken as the town’s agent.
Misrepresentation: As already noted, the Court’s decision in Rissler, would bar claims against HKM based upon negligent misrepresentation. Excel argued that its claim of misrepresentation is really a claim of intentional misrepresentation or fraud. The claim can only be construed as one for negligent misrepresentation. Excel did not allege that HKM intentionally made representations which it knew to be false, even though fraud must be pled with particularity. In addition, Excel specifically described its claim as one for negligent misrepresentation. The record does not suggest that Excel ever sought to amend its claim to add allegations of fraud. Under the circumstances, the Court can only conclude that Excel made a claim for negligent representation and not for fraud. Under Rissler, this type of claim falls within the bar of the economic loss rule.
Good faith and fair dealing: The Court has recognized that all contracts contain an implied covenant of good faith and fair dealing. Excel did not contract directly with HKM, and therefore no implied covenant. The Court does not construe the clause as creating an obligation on the part of the engineer to act in good faith in all decisions affecting the contractor as might arguably be the case under an implied covenant of good faith and fair dealing. The exculpatory clause would just limit the engineer’s liability to claims that involve an element of bad faith. Excel may not maintain a claim of intentional interference with contract against the agent of a party to its contract, and it did not present a claim of intentional misrepresentation or fraud to the trial court on the pleadings in the case.

Conclusion: The Court declined to modify the economic loss rule in Rissler to permit actions against a design professional based on negligence. Although a party may be able to maintain an action for the intentional tort of interference with contract under Rissler, Excel may not maintain such a claim against HKM for actions taken in its capacity as Lovell’s agent under the Excel-Lovell contract. While a party may be entitled to maintain a claim for intentional misrepresentation or fraud under certain circumstances notwithstanding the economic loss rule enunciated in Rissler, HKM did not present such a claim to the district court, and Excel’s claim for negligent misrepresentation is barred by Rissler. The language of the HKM – Lovell contract did not impose a duty similar to that of the implied covenant of good faith and fair dealing on HKM, but rather limited the exculpatory language contained in that paragraph to claims not involving bad faith. The clause would not have barred tort claims involving an element of bad faith but Excel either could not maintain its intentional tort claims as a matter of substantive law or did not raise them in the trial court.

Affirmed.

D.J. Davis delivered the decision.

Link: http://tinyurl.com/yjq4vuc .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Monday, July 13, 2009

Summary 2009 WY 83

Summary of Decision issued June 30, 2009

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

Case Name: Hall v. Perry

Citation: 2009 WY 83

Docket Number: S-08-0167

Appeal from the District Court of Park County, the Honorable Steven Cranfill, Judge.

Representing Hall: Matthew D. Winslow of Keegan & Winslow, PC, Cody, Wyoming.

Representing Perry: Patrick J. Murphy and Lori L. Gorseth of Williams, Porter, Day & Neville, PC, Casper, Wyoming.

Facts/Discussion: Hall was injured when he was thrown from a horse while participating in a deer hunt guided by Hidden Creek Outfitters (Perry). The district court ruled that the Release signed by Hall precluded his negligence action and granted summary judgment in favor of Perry. Hall argued that after he signed the Letter Agreement and provided the initial deposit, Perry was obligated to take him on the hunt. He claimed the Letter Agreement formed the entire contract and the Release was a separate agreement which required consideration apart from the fee he paid for the hunt. Hall signed the Release Agreement after arriving at the lodge prior to the hunt.
The Court stated that it follows the preexisting duty rule which means an agreement to do what one is already bound to do cannot serve as consideration to support a modification of the parties’ agreement. Perry argued that the preexisting duty rule did not apply because the Release was part of the parties’ original agreement and thus, no new or additional consideration was needed to make it enforceable. In order to accept Hall’s position that the Release was not part of the parties’ original agreement, the Court would have had to ignore the Letter Agreement’s clear reference to a separate Release and Indemnity Agreement. The Court noted the case fit into the Roussalis rationale and that no new consideration was required to make the Release enforceable.

Conclusion: The district court recognized the Release was not attached to the Letter Agreement but concluded that it was effective as an addendum because it was signed by Hall. The Court believed the Letter Agreement referred to the Release. Because the Release was an addendum to the original contract, no additional consideration was required.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/majkat .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 80

Summary of Decision issued June 18, 2009

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

Case Name: Velasquez v. Chamberlain

Citation: 2009 WY 80

Docket Number: S-08-0043; S-08-0044

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

Representing Velasquez: Patrick Dixon of Casper, Wyoming.

Representing Chamberlain: Heather A. Jacobson of Jacobson Law Office, LLC, Douglas, Wyoming.

Facts/Discussion: These two consolidated appeals arise from a dispute between neighboring landowners. The Chamberlains own certain water rights. Traditionally, the water had been carried to their property through an established ditch running through property currently owned by the Velasquezes. Prior to their purchase of the property, the ditch failed and the Chamberlains replaced it with a pipeline, running on a different course from the ditch. When the Velasquezes bought the property, they claimed the Chamberlains had not received proper permission to install or maintain the pipeline and proceeded to effectively destroy the pipeline as it ran through their property. The resulting legal action included multiple claims for damages on both sides and a petition for a restraining order against the Velasquezes allowing the Chamberlains to go on their property and fix the pipeline.
The district court determined the Chamberlains legally had the unencumbered right to convey their water through the pipeline. In appeal No. S-08-0043, the Velasquezes appeal the district court’s order allowing the Chamberlains to maintain and use the pipeline as it crosses their property, as well as the district court’s refusal to grant damages to them. In appeal No. S-08-0044, the Chamberlains appeal the amount they were granted in damages, alleging the evidence supported a larger amount.
Appeal No. S-08-0043
Statutory Compliance: The Velasquezes argued that the Chamberlains violated § 41-3-114 when they changed the flow of water from the established ditch to a pipeline. The Court declined to address the argument because based upon a review of the record it was unclear whether the issue was raised in the trial below.
Validity of the Contract: The Velasquezes questioned whether Dave Lozier (previous owner of the land the Velasquez’s now own) was authorized to enter into the Agreement on behalf of Guy Lozier (brother of Dave who purchased the property from Dave when he could not meet his obligations under the contract for deed.) The district court determined that Dave had apparent authority to enter into the contract on behalf of Guy. The evidence included that there was no change in the way Dave managed the property after the purchase by Guy. The Court agreed it was reasonable for the Chamberlains to accept that Dave had authority to enter into the Agreement based on the evidence that Dave managed the property without any input from Guy. In addition, the district court found that Guy ratified the Agreement by his silence in the face of knowledge of the pipeline. The evidence supported a reasonable inference that Guy was aware of the pipeline as evidenced by a remaining scar on the ground from the excavation work. It could also be reasonably inferred that, by not objecting in any manner over a period of almost six months, Guy ratified the Agreement. The Velasquezes argue the Agreement does not constitute an easement, license or covenant running with the land. The Court stated the focus should be on the subject of the Agreement – the buried water pipeline. The pipeline replaced part of the Powell Number One Ditch which transported water to the Chamberlains’ property. Water rights encompass the right to convey water. As the Court stated in Bard Ranch, Inc.: the ditch follows the right. Consequently, the ownership interest of the Chamberlains remained unaltered regardless of who owned the property through which the pipeline runs.
Damages: Because the Court determined that the pipeline was legally in place, no trespass occurred by the Chamberlains when they repaired the pipeline. Another allegation was the use of the Vleasquezes’ feedlot by the Chamberlains. The Court agreed with the district court that the amount of damages caused by his use was not adequately proven. There was an allegation of trespass which concerned water flooding part of a pasture. According to testimony, the pasture had only been used for grazing in the past and not for hay production. The damage assessment reflected the value of a total loss of hay on pasture which bore no relation to any loss of use of the property. The request for nominal damages to deter future similar conduct was not addressed by the Court.
Appeal No. S-08-0044: An uncontradicted invoice in the amount of $11,540 for repair to the pipeline from damage caused by the Velasquezes supported the award for the full amount of the invoice.

Conclusion: The Agreement was a valid contract between neighboring landowners to alter the course and method of water flowing from the LaPrele Creek to the Chamberlain property. The Chamberlains maintained the same ownership interest in the buried water pipeline as they had in the Powell Number One Ditch. Further, the damages claimed by the Velasquezes were not supported by adequate evidence. The district court’s order was affirmed. In appeal S-08-0044, the Chamberlains introduced adequate evidence to support their claim for damages in the amount of $11,540. The award for damages was reversed and remanded.

Affirmed in part, reversed and remanded in part.

J. Golden delivered the decision.

Link: http://tinyurl.com/mgx6dh .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Tuesday, April 21, 2009

Summary 2009 WY 55

Summary of Decision issued April 21, 2009

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

Case Name: Riverview Heights Homeowners’ Ass’n v. Rislov

Citation: 2009 WY 55

Docket Number: S-08-0126

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

Representing Appellant Riverview Heights: Kelly A. Rudd, Baldwin, Crocker & Rudd, PC, Lander, Wyoming.

Representing Appellee Rislov: Pamala M. Brondos and Peter C. Nicolaysen, Nicolaysen & Wilking, PC, Casper, Wyoming.

Facts/Discussion: Riverview Heights, a residential subdivision northwest of Riverton, filed suit against Rislov seeking to enforce an amendment to the subdivision’s restrictive covenants. Riverview Heights contended the district court erred in ruling that the 2004 Amended Covenants were invalid as a matter of law.
Restrictive covenants are interpreted according to principles of contract law. The Court focused on Paragraph 14 which stated the covenants were irrevocable and perpetual unless amended by instruments executed and acknowledged in the form prescribed for the execution of deed by 75% of the owners of the total acreage contained in the tract. Riverview Heights contended that the 2004 Amendment complied with the requirements because the officers signed the document and their signatures were notarized. The Court was unconvinced because the language asked for the signatures of 75% of the owners.
The Court referred to Goglio v. Star Valley Ranch Ass’n making note that homeowners associations serve three primary functions: levying and collecting assessments; managing and maintaining common property for the benefit of residents; and enforcing covenants that govern developments. The Court concluded that regardless of any inherent powers of the Association’s officers, they cannot amend the covenants without the requisite approval of 75% of the lot owners.
Attached to the 2004 Amendment were signature pages purporting to reflect approval of the amendment. Several of the pages were not notarized. Those not notarized were not properly executed and therefore were ineffective as approvals of the Amendment. Subtracting out the ineffective approvals, only 64% of the total owners approved the Amendment.

Conclusion: The Court determined the 2004 Amendment to the restrictive covenants was invalid. It affirmed the district court’s decision granting summary judgment against the Association.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/ddt4p9 .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Monday, March 23, 2009

Summary 2009 WY 38

Summary of Decision issued March 13, 2009

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

Case Name: Omohundro v. Sullivan; Sullivan v. Omohundro

Citation: 2009 WY 38

Docket Number: S-08-0027; S-08-0028

Appeal from the District Court of Johnson County, the Honorable David B. Park, Judge.

Representing Appellants Omohundro Trust in case S-08-0027: Kendal Hoopes, Yonkee & Toner, LLP, Sheridan, Wyoming; Anthony T. Wendtland, Wendtland & Wendtland, LLP, Sheridan, Wyoming.

Representing Appellees Sullivan Group in case S-08-0027: Kim P. Cannon and Sasha Johnston, Davis & Cannon, LLP, Sheridan, Wyoming.

Facts/Discussion: Appellants (Omohundro Trusts) own interests in Tract 6 of the Twin Lakes subdivision near Buffalo, Wyoming, and Appellees (Sullivan Group) own Tracts 1-4. The parties dispute whether under the subdivision restrictive covenants, Omohundro Trusts was required to obtain consent from all of the landowners before they could take action which would allow the City of Buffalo to obtain the water rights appurtenant to the subdivision lands. The district court ruled on summary judgment that the restrictive water rights unambiguously required the approval of the owners of all the tracts.
In the document entitled “Covenants for Twin Lakes, Buffalo, Wyoming,” Tracts 1-5 are referred to as Exhibit “A” lands while Tract 6 is referred to as Exhibit “B” lands. The language at the heart of the dispute reads: Notwithstanding any other provision in this declaration, any action, step or procedure (including without limitation, the further subdivision of any lot within the development) or the omission of any act, step or procedure which would allow or entitle the City of Buffalo to take possession, ownership, and control of the irrigation water rights applicable to the development on Exhibit “B” lands as set forth in said attached agreement shall require the written consent and approval of 100% of all lot owners within the development as well as the record owner(s) of Exhibit “B” lands. The Court considers all parts of the covenants in interpreting a provision. The Court stated that by its language the caveat included the recitation paragraphs that Omohundro Trusts claimed should be interpreted as applying to the Exhibit “A” lands. Omohundro Trusts offered the affidavit of William Omohundro as support for its reading of the covenants in its summary judgment action. The Court noted that evidence of the declarants’ subjective intention was not relevant or admissible to interpret the contract, whether its language was ambiguous or not. In addition, the relevant facts and circumstances surrounding the execution of the document could be gleaned from the covenants themselves and the documents attached including the Water Connector’s Agreement with the City.

Conclusion: The Court agreed with the district court that the disputed language unambiguously required the approval of the owners of all the tracts.

Affirmed.

J. Kite delivered the decision.

J. Burke dissented, J. Golden joined: J. Burke disagreed with the majority’s conclusion that the pertinent language in the restrictive covenants was unambiguous. Objectively, the language was ambiguous and subject to differing interpretations regarding the necessity of consent from all Exhibit “A” lot owners before subdivision of Exhibit “B” lands could occur. The interpretation of an ambiguous restrictive covenant raised genuine issues of material fact that precluded summary judgment.

Link: http://tinyurl.com/cjvrst .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Tuesday, March 03, 2009

Summary 2009 WY 26

Summary of Decision issued February 25, 2009

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

Case Name: Vargas Limited Partnership v. Four “H” Ranches Architectural Control Comm.

Citation: 2009 WY 26

Docket Number: S-07-0022

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Appellant Vargas/Martin: Michael H. Reese, Cheyenne, Wyoming; Ronald L. Brown, Fort Collins, Colorado.

Representing Appellee Four “H”: John B. Rogers of Rogers and Rogers, PC, Cheyenne, Wyoming.

Facts/Discussion: Four “H” Ranches Architectural Control Committee (ACC) brought suit on behalf of adjoining landowners in a residential subdivision located in Laramie County to enforce the subdivision’s declaration of protective covenants and enjoin the construction or improvements of several buildings by Vargas Limited Partnership and Kit Martin (known collectively as Martin) on their property in the subdivision.

Real Party in Interest: Restrictive covenants are contractual in nature and are interpreted in accordance with principles of contract law. The real party in interest requirement protects a defendant from the vexation of a multiplicity of actions, with the possible burden of multiple recoveries, all emanating from the same cause. Although the parcel owners never developed a homeowners association, the Court noted that many courts have held that where lots in a subdivision are sold subject to common restrictive covenants an express reservation of a right of enforcing such covenants does not conclusively negate an intent that such covenants were also for the benefit and enforceable by other owners. Several owners of parcels in the Four “H” subdivision testified in support of the ACC’s enforcement action. If a homeowners association or one or more parcel owners were in the future to claim an enforcement right against Martin for covenant violations litigated in the instant action, they would be estopped to do so. The judgment in this action protects Martin.
Whether Construction was Incomplete: After examining the evidence in the record, the Court held that the district court’s findings of fact that the construction of Building A prime, Building A double prime, and Building B was incomplete were supported by the record.
Abuse of Discretion: The Court reviewed the district court’s order for Martin to remove the buildings in question in light of the record. The district court’s conclusions were drawn from objective criteria and demonstrated the proper exercise of sound judgment.

Conclusion: The judgment in the district court action protects Martin from future litigation of covenant violations. The record supported the conclusion that construction was incomplete. The district court’s conclusions were drawn from objective criteria such that the Court found no abuse of discretion.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/dknbn2 .

[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. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]