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Scherer v. Laramie Regional Airport Board

July 30, 2010

ROBERT L. SCHERER, II, APPELLANT (DEFENDANT),
v.
LARAMIE REGIONAL AIRPORT BOARD, APPELLEE (PLAINTIFF).



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

The opinion of the court was delivered by: Golden, Justice.

Before KITE, C.J., and GOLDEN, HILL, VOIGT,*fn1 BURKE, JJ.

[¶1] Robert L. Scherer, II, (Scherer) appeals 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." We affirm.

STATEMENT OF THE ISSUES

[¶2] In Scherer's principal brief, he presents these issues:

1. Did the District Court err by shifting the cost of removing the Quonset hut to Mr. Scherer despite passage of the deadline set forth in paragraph 10?

2. Did the District Court err as a matter of law in finding that Mr. Scherer was responsible to return the leased premises to its pre-lease condition?

3. Did the District Court err in identifying the pre-lease condition of the leased premises?

In reply, the Board states the issue is whether the district court erred in finding that Scherer breached the terms of the lease and in awarding damages to the Board.

[¶3] Scherer filed a reply brief which failed to comply with the requirements of W.R.A.P. 7.03, namely, "the reply brief shall precisely and concisely set forth on the first page those new issues and arguments raised by the brief of the appellee which are addressed in the reply brief. A reply brief is limited to such new issues and arguments...." We refuse to consider Scherer's reply brief. W.R.A.P. 1.03.

FACTS

[¶4] In the mid-1980s, Scherer purchased a Quonset hut*fn2 from the Board. On January 1, 1986, the parties executed a 20-year lease of the land underlying the hut which is located on Brees Field Airport near Laramie, Wyoming. The provisions of the lease which are pertinent to this appeal are the following:

LEASE EXPIRATION

9. Within one (1) year before the expiration of the term of this agreement, the parties may negotiate in good faith a new agreement.

10. In the event a new lease is not entered into, the structure located upon the lands leased herein by Lessee shall:

(a) Be removed by Lessee at his own expense within sixty (60) days of the expiration of the term of this agreement, with the understanding that weather may require an extension of time. In the event of any removal of improvements, the premises must be left clean, orderly and as close to the original condition as reasonably possible. Provided, however, that Lessee shall not remove any permanent improvement such as a floor upon which the building sits, plumbing, electrical lines or other utility without Lessor's approval.

(b) If any building improvements are not disposed of as provided above, to the extent permitted by applicable law, they shall revert to and absolute title shall vest in Lessor. After the title vests in Lessor, Lessor in its sole discretion, may remove the structure within sixty (60) days, understanding that weather may require an extension of time, at the expense of Lessee.

19. Lessee shall keep the leased premises and adjacent area clean, orderly, and free of accumulated trash at his own expense.

[¶5] During the first two years of the lease term, Scherer operated an air freight business on the property; during the remaining years of the lease term, he used the hut as storage space. The parties did not renew the lease, and it expired on December 31, 2005. Although paragraph 10(a) of the lease stated that if the parties did not enter into a new lease Scherer shall remove the hut at his own expense within sixty days of the expiration date, Scherer did not remove the hut and continued to use it as a storage facility. Although paragraph 10(b) of the lease stated that if Scherer did not remove the hut at his own expense within sixty days of the expiration date then the hut shall revert to and title shall vest in the Board and then the Board may remove the hut at Scherer's expense within sixty days, the Board did not remove the hut.

[¶6] In September 2006, the Board served Scherer with a Notice to Quit the premises, but Scherer did not quit the premises. The parties' attempts to resolve the situation bore no fruit. In a letter dated December 28, 2006, the Board informed Scherer that it possessed title to the hut, that it was entitled to remove it at his expense, that it intended to remove it, and that he should contact the Board if he wanted to remove it himself. In January and February 2007, the parties continued to try to resolve the situation, but to no avail. Between early 2007 and July 2007, Scherer began cleaning his property out of the hut, but had made only limited progress.

[¶7] In early July 2007, the Board contacted an engineering and surveying company to assist in removing the hut from the airport property. That company enlisted the help of an industrial hygienist to ensure that the removal was done in a safe manner. Upon inspection of the hut, the industrial hygienist found that the hut had fallen into considerable disrepair during the lease term. During Scherer's occupancy, the hut's windows and skylights had been broken and not repaired. This condition allowed the hut to be occupied by a number of animals, including pigeons. The Board, the engineering firm, and the industrial hygienist developed a plan for removing the hut in light of the hut's poor condition and the danger posed by pigeon feces. The Board advertised for bids and accepted the lowest one; demolition began in October 2007 and was completed by early November 2007.

[ΒΆ8] On August 1, 2008, the Board filed its complaint against Scherer for breach of the covenants in the lease and damages of $90,504.89 for the cost of restoring the leased property. The allegations of the complaint pertinent to this appeal include paragraphs 10, 11, and 12. Paragraph 10 alleged that Scherer had failed to restore the property within sixty days after surrender of the leased premises in accordance with paragraph 10 of the lease. Paragraph 11 alleged that when Scherer surrendered the lease the property was in a poor and dangerous condition because of Scherer's acts of omissions during the period of his ...


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