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P & N Investments, LLC v. Frontier Mall Associates, LP

Supreme Court of Wyoming

May 31, 2017

P & N INVESTMENTS, LLC, d/b/a DICKEY'S BARBECUE PIT, Appellant (Plaintiff),

         Appeal 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. Buckley.

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

          FOX, Justice.

         [¶1] 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.


         [¶2] 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?


         [¶3] 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.

         [¶4] 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.

         [¶5] 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.

         It is 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.[1]

         [¶6] Under Wyoming law, contractors have one hundred fifty days from the date of the completion of their work to assert a lien.[2] 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.

         [¶7] 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.


         [¶8] 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 ...

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