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Thornock v. Pacificorp

Supreme Court of Wyoming

September 13, 2016

JASON THORNOCK, Appellant (Plaintiff),
v.
PACIFICORP, an Oregon Company, Appellee (Defendant).

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

          Representing Appellant/Plaintiff: David M. Clark of Greear Clark King, P.C., Worland, Wyoming.

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

          Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

          KAUTZ, Justice.

         [¶1] The Appellant, Jason Thornock, sued the Appellee, PacifiCorp, for breach of contract, breach of the duty of good faith and fair dealing, specific performance, and costs and attorney fees, after PacifiCorp did not provide electric service to an irrigation pivot located on Mr. Thornock's property using a particular easement. While PacifiCorp did not utilize the easement Mr. Thornock originally suggested, it did provide electric service to Mr. Thornock's pivot using a different route under the terms of a second contract the parties entered into approximately three months after the original contract. The district court granted summary judgment in favor of PacifiCorp for five reasons. It found that (1) the second contract superseded the first contract; (2) Mr. Thornock breached the terms of the first contract, relieving PacifiCorp of its obligation to perform under the contact; (3) it was impracticable for PacifiCorp to perform its obligations under the first contract; (4) the first contract precluded Mr. Thornock from seeking consequential damages; and (5) because PacifiCorp performed its obligations under the terms of the second contract it could not have breached its duty of good faith and fair dealing. Mr. Thornock appeals the entirety of the district court's order. We affirm.

         ISSUE

         [¶2] Mr. Thornock raises four issues in this appeal; however, we find that one of the issues is dispositive and we limit our review to that issue:

         Did Mr. Thornock's second contract with PacifiCorp supersede the first contract?

         FACTS

         [¶3] In the fall of 2009, Mr. Thornock requested that PacifiCorp provide electric service to an irrigation pivot on his property. On March 23, 2010, Mr. Thornock signed a General Service Contract (first contract) authorizing PacifiCorp to provide electric service to the pivot. The contract stated that the agreement is "between PacifiCorp, doing business as Rocky Mountain Power ("Company"), and Jason Thornock ("Customer"), for electric service for Customer's IRRIGATION operation at or near COKEVILLE, Wyoming." The contract required that Mr. Thornock "[p]rovide legal rights-of-way to Company, at no cost to the Company, using Company's standard forms. This includes rights-of-way on Customer's property and/or adjoining property and any permits, fees, etc. required to cross public lands[.]" Mr. Thornock provided a check to PacifiCorp for $10, 248 for "Customer Paid Costs." A representative from PacifiCorp signed the contract on April 13, 2010.

         [¶4] Attached to the contract were two documents printed on April 6, 2010. One document contained notes to the service crew that the new power line conductors would be placed on an existing easement. The second document contained a detailed estimate of the costs and also noted that the project would utilize an existing utility easement. While the documents do not give a legal description of the easement, the parties do not dispute that the documents refer to a pole line easement recorded in 1967 across Erick and Jeanne Esterholdt's property (Esterholdt Easement). Although one or two power poles remained standing on the Esterholdt Easement, the power lines had been blown down and service had not been provided over the lines for over twenty years.

         [¶5] When the Esterholdts learned PacifiCorp intended to use the easement over their property to provide power to Mr. Thornock's pivot, they threatened a trespass claim and retained an attorney. PacifiCorp told the Esterholdts that it planned to proceed with the construction of the power line and, in turn, the Esterholdts filed a lawsuit against PacifiCorp. The Esterholdts requested that the district court declare the 1967 Pole Line Easement void and sought a temporary and permanent injunction to keep PacifiCorp off their property. Mr. Thornock intervened in the lawsuit and told PacifiCorp that he would sue for breach of contract if it did not construct the power line across the easement.[1]PacifiCorp faced a lawsuit from the Esterholdts if it attempted to use the easement, and a lawsuit from Mr. Thornock if it did not. PacifiCorp decided it would not enter the Esterholdt property until the validity of the easement was resolved by the parties or the court. The Esterholdts' lawsuit proceeded, and PacifiCorp defended the validity of the easement. The district court found the easement valid after a trial in November of 2011. The Esterholdts appealed the decision, and on May 22, 2013, this Court affirmed the district court. See generally Esterholdt v. PacifiCorp, 2013 WY 64, 301 P.3d 1086 (Wyo. 2013).

         [¶6] PacifiCorp returned the "Customer Paid Costs" of $10, 248 under the first contract to Mr. Thornock on May 6, 2010. On June 29, 2010, Mr. Thornock signed a second General Service Contract (second contract) requesting that PacifiCorp provide power to the same irrigation pivot on his property. The Second Contract stated: "This Contract, dated June 29, 2010, is between PacifiCorp, doing business as Rocky Mountain Power ("Company"), and Jason Thornock ("Customer") for electric service for Customer's IRRIGATION CONNECT operation at or near 7832 HWY 30 COKEVILLE, Wyoming." As with the first contract, the second contract required that Mr. Thornock "[p]rovide legal rights-of-way to Company, at no cost to the Company, using Company's standard forms. This includes rights-of-way on Customer's property and/or adjoining property[.]" The contract also contained a clause stating, "This Contract contains the entire agreement of the parties with respect to the subject matter, and replaces and supersedes in their entirety all prior agreements between the parties related to the same subject matter." A document printed on July 1, 2010, and attached to the contract, showed that PacifiCorp and Mr. Thornock planned to utilize a right-of-way granted by Sharon Dayton (Dayton Easement). A representative of PacifiCorp signed the contract on July 6, 2010. PacifiCorp constructed the power line over the Dayton Easement and continues to provide power to Mr. Thornock's pivot via the Dayton Easement to date.

         [¶7] Approximately seven months after this Court affirmed that the Esterholdt Easement was valid, Mr. Thornock filed a complaint against PacifiCorp based on the first contract. He alleged breach of contract and breach of the duty of good faith and fair dealing, and sought damages, specific performance, and attorney fees. Mr. Thornock claimed PacifiCorp was still obligated to provide power via the Esterholdt Easement under the terms of the first contract and failed to do so. In response to the Complaint, PacifiCorp filed a counterclaim for breach of contract and attorney fees, alleging that Mr. Thornock breached the first contract by failing to provide a legal right-of-way at no cost to ...


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