P & N INVESTMENTS, LLC, d/b/a DICKEY'S BARBECUE PIT, Appellant (Plaintiff),
FRONTIER MALL ASSOCIATES, LP, Appellee (Defendant).
from the District Court of Laramie County The Honorable
Steven K. Sharpe, Judge.
Representing Appellant: Tara B. Nethercott, Woodhouse Roden
Nethercott, LLC, Cheyenne, Wyoming.
Representing Appellee: Rick A. Thompson and Lucas E. Buckley,
Hathaway & Kunz, LLP, Cheyenne, Wyoming. Argument by Mr.
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Appellant P & N Investments, LLC (P & N) obtained a
franchise for a Dickey's Barbeque Pit restaurant to be
operated in Frontier Mall in Cheyenne, Wyoming. P & N
entered into a lease with Frontier Mall Associates, LP (the
Mall), which required the Mall to pay P & N a finish
allowance when certain provisions had been satisfied. P &
N then entered into a contract with a general contractor,
which P & N eventually paid in full for the work done.
The general contractor, however, did not pay all the
subcontractors. P & N and the Mall now dispute whether
the lease provision requiring that liens be released and work
be paid for was satisfied. The district court ruled that the
lease language is unambiguous, and, because it is undisputed
that subcontractors have not been paid and have not provided
evidence regarding satisfaction or waiver of any liens,
granted summary judgment in favor of the Mall. We affirm.
We rephrase the issue: Do the unambiguous terms of the lease
require evidence that subcontractors and the general
contractor have been paid in full before the Mall is
obligated to pay the finish allowance?
P & N entered into a ten-year Shopping Center Lease
(Lease) with the Mall for approximately 2500 square feet in
Frontier Mall in which to operate a Dickey's Barbeque Pit
franchise. The Lease allowed P & N to renovate the space
to suit its use as a restaurant. P & N retained East
Rochester, New York contractor, CCI Builders and Developers,
Inc. (CCI), to act as the general contractor on the project.
CCI, in turn, hired a number of local subcontractors to
provide materials and perform work on the project.
The Lease provided that upon satisfaction of ten express
conditions, the Mall would pay P & N a tenant finish
allowance of $150, 180. The condition that lies at the heart
of this dispute requires P & N to provide the Mall
satisfactory evidence from P & N's general contractor
and subcontractors that any liens have been satisfied or
waived and an affidavit that "all work has been paid
for" before the finish allowance becomes due.
Work was completed on the project in September 2014 and the
restaurant opened on schedule. For the purposes of this
appeal, it is undisputed that the total cost of construction
was $308, 929.55 and that P & N paid CCI $308, 929.55. P
& N submitted an affidavit to the Mall stating:
6. The total cost of construction was three hundred eight
thousand nine hundred twenty nine and 55/100 dollars ($308,
929.55). The cost was paid in full by me [Nathaniel Schott,
owner of P & N] to CCI.
7. The construction was completed in September 2014.
7. [sic] No liens have been filed on the property or may be
filed as a result of construction on the leased premises.
also undisputed that CCI did not pay numerous subcontractors
a total of approximately $90, 000 for work they performed on
or materials they provided to the project.
Under Wyoming law, contractors have one hundred fifty days
from the date of the completion of their work to assert a
lien. Thus, CCI and the subcontractors had until
February 27, 2015, at the latest, to assert a lien against
the property. It is undisputed that no liens have been filed
against the property.
Because the Mall has not paid the finish allowance, P & N
sued the Mall, asserting claims of breach of contract and
unjust enrichment, and seeking declaratory judgment that the
Mall must pay the tenant finish allowance because P & N
has met the conditions for that payment set forth in the
Lease. The Mall counterclaimed, seeking a determination that
the Lease terms have not been satisfied and that the
requirement to pay the finish allowance has not been
triggered. The parties filed cross-motions for summary
judgment. The district court concluded that the disputed
contract language is unambiguous and requires the submission
of evidence of lien release satisfactory to the Mall from the
general contractor and the subcontractors and an affidavit
that all outstanding amounts owed for the construction,
including amounts owed to subcontractors, have been paid.
Because there is no dispute that neither of these
requirements has been met, the district court granted summary
judgment in favor of the Mall. P & N appeals.
We review a grant of summary judgment deciding a question of
law de novo. Anadarko Land Corp. v. Family Tree
Corp., 2017 WY 24, ¶ 15, 389 P.3d 1218, 1223 (Wyo.
2017); Williams v. Sundstrom, 2016 WY 122, ¶
17, 385 P.3d 789, 793 (Wyo. 2016). We use the same materials
and follow the same standards as the district court.
Leeks Canyon Ranch, LLC v. Callahan River Ranch,
LLC, 2014 WY 62, ¶ 12, 327 P.3d 732, 737 (Wyo.
2014). Summary judgment can be ...