from the District Court of Sweetwater County The Honorable
Richard L. Lavery, Judge
Representing Appellant: Judith A.W. Studer, Schwartz, Bon,
Walker & Studer, LLC, Casper, Wyoming.
Representing Appellee: Clark D. Stith, Stith Law Office, Rock
Before, DAVIS, C.J., and BURKE[*], FOX, KAUTZ and BOOMGAARDEN, JJ.
Essex Holding, LLC (Essex) and Basic Properties, Inc. (Basic)
each own lots in a shopping center subject to restrictive
covenants. Basic requested Essex's consent to amend the
covenants to allow Basic to develop one of its lots. Essex
refused, litigation ensued, and a jury awarded Basic $200,
000 in damages. The district court also awarded attorney fees
and costs to Basic. Essex filed post-trial motions which the
district court denied, and Essex filed its appeal within 30
days of that denial. Essex challenges the verdict and damages
award, along with several of the district court's rulings
and orders. We affirm.
We restate and reorder the issues Essex has raised:
1. Did Essex timely file its Notice of Appeal?
2. Did Basic have standing to assert its counterclaim?
3. Did the district court err when it submitted Basic's
counterclaim for breach of contract to the jury?
4. Did jury instructions which rejected Essex's theory
regarding the void 1993 Amendment constitute plain error?
5. Did cumulative error result in an excess verdict or a
verdict contrary to law?
6. Did the district court properly grant Basic's motion
for judgment as a matter of law on Essex's anticipatory
7. Did the district court err in its award of attorney fees
and costs to Basic?
8. Did the district court properly deny Essex's W.R.C.P.
Essex and Basic each own parcels of land in the Flaming Gorge
Shopping Center in Green River, Wyoming, subject to
restrictive covenants (the ECRs) recorded by the developer in
1975. The ECRs grant each parcel owner an access easement for
the common areas, largely consisting of ingress and egress to
the parking lot. They may be modified with the "written
consent of all record owners of Parcels I, II, and III,"
which consent "shall not be unreasonably withheld."
The developer attempted to modify the ECRs in 1993, before
Essex and Basic acquired their parcels, in conjunction with
subdividing Parcel II into Parcel II-A and Parcel II-B. The
developer recorded a Modification and Amendment of Easements
with Covenants and Restrictions Affecting Land on December
14, 1993 (1993 Amendment) for this purpose.
Essex acquired Parcel I in 1999, and Basic acquired Parcel
II-B in 1998, Parcel II-A in 1999, and Parcel III in 2003. In
2008, Basic enlarged and renamed Parcel II-B as Parcel II-D.
In 2012, Basic sold Parcel II-A to David and Lynda Laughlin
On November 17, 2011, Basic contracted to sell Parcel II-D to
O'Reilly Automotive Store, Inc. (O'Reilly) for the
construction of an auto parts store. Basic and O'Reilly
believed that the 1993 Amendment permitted construction of a
building along the eastern boundary of Parcel II-D. In the
spring of 2012, Basic and O'Reilly realized that there
were access problems along the eastern boundary and wished to
move the parcel's building area to the southern boundary.
The change would require further amendment of the ECRs.
Around April 2012, Basic's president, Don Johnson,
contacted Essex's managing member, Mark Langfan, to
discuss amending the ECRs. On May 8, 2012, Basic's
attorney expressly requested Essex's consent to amend the
ECRs and provided a proposed written amendment to the 1993
After receiving no response, Basic's attorney made
several phone calls and sent several follow-up emails to
Essex on June 14, 19, and 27, 2012, and July 12, 2012,
providing O'Reilly's site plan, additional copies of
the ECRs, prior amendments, and the proposed written
amendment. Essex did not respond to any email and did not
provide any substantive comments about the proposed
development during any of the telephone calls.
On July 2, 2012, O'Reilly's realtor emailed
photographs of the proposed development to Essex and
requested Essex's consent to the plan. Essex provided the
photographs to its tenant and property manager, Ace Hardware,
requesting its feedback. Ace Hardware informed Essex that the
proposed O'Reilly building would benefit its business by
increasing traffic to the shopping center.
On August 13, 2012, Mr. Johnson emailed Essex requesting a
time to discuss the amendment. Essex replied two days later,
stating: "You only sent us some of the documents. Where
are all of the easement documents for the property?"
Basic's attorney re-sent copies of the ECRs and all
amendments to Essex. Mr. Johnson explained that the proposed
development would have little impact on Essex's parcel
and, instead, would increase traffic and the value of the
parties' respective properties. Mr. Johnson offered to
pay Mr. Langfan's expenses to come to Wyoming to view the
[¶11] On or about August 24, 2012, however, Essex
discovered that the 1993 Amendment was missing a required
signature and could be invalid. Thus, instead of responding
to Mr. Johnson's email, Essex informed Basic's
attorney of the missing signature. Basic's attorney
acknowledged that the 1993 Amendment did not contain a
required signature, but continued to request Essex's
consent to amend the covenants:
As I mentioned in my prior email, I had thought that the
putative 1993 Amendment (that I first sent to you on June 19,
2012) was valid, but it appears that perhaps it is not,
because no representative from Parcel I signed it.
Please let us know under what conditions, if any, Essex
Holding is willing to sign the proposed amendment.
On September 6, 2012, having received no substantive response
to Basic's request, Mr. Johnson emailed Essex asking for
help in understanding Essex's reluctance to approve the
amendment. Mr. Langfan replied, "I was given false
information to begin with that I was obligated to the
building area. Secondly, from the plan alone, the ingress is
impeded by what would parking stalls on and out [sic] that I
believe is dangerous." Essex retained an attorney,
considered itself in "litigation mode," and
remained unwilling to negotiate or sign any proposed
On September 14, 2012, O'Reilly's realtor informed
Essex by email that a new proposed development option would
be forthcoming. Essex responded the same day, stating:
The issue is there is no right to build to begin with. I was
first incorrectly told there was a right, and was sent a
false graphic depicting the false statement. Then, I had to
do my own research which proved there wasn't any such
right. Then, I discovered there was a false document recorded
against my title. That document must be removed immediately.
"false document" Essex referred to was the 1993
Following this exchange, the attorneys for Basic and Essex
continued to correspond. Basic's attorney renewed
Basic's request for consent, reminding Essex's
attorney that the ECRs prohibited the unreasonable
withholding of consent. Basic's attorney urged
Essex's attorney to "clean up the record and make
clear that building is allowed on this particular corner that
is furthest from Essex Holding's property."
Essex's attorney did not respond to the consent issue.
Instead, he claimed that Basic breached the
and asked Basic to remove the 1993 Amendment from the record.
Basic's attorney countered that Essex was in breach of
the ECRs and not acting in good faith, and documented
Basic's attempts to secure Essex's consent to an ECR
I called Mr. Langfan multiple times in May and June but could
not get a response from him one way or the other. I sent
follow up emails to Langfan on May 14, June 14, June 19, June
27, July 12 and August 1, 2012. As you are aware, Essex
Holding initially took no position on the proposed new
amendment and then ultimately refused to consent to any
amendment that would allow construction on Parcel II-D.
During a separate email exchange between Don Johnson and Mark
Langfan on September 6, 2012, Langfan expressed concerns
about ingress and egress.
Essex Holding has never given any coherent reason for
refusing to sign the proposed amendment. Its claim that
ingress and egress would be adversely affected is not well
founded as O'Reilly Auto Parts would be adding an
additional ingress and egress point, thus improving not
degrading access to the shopping center.
This letter provides notice that Essex Holding is in
violation of Section 8(a) of the ECRs for its unreasonable
withholding of consent to the proposed amendment to the ECRs
that would allow construction of an O'Reilly Auto Parts
store on Parcel II-D.
counsel responded in writing by simply stating:
I have received your letter dated November 1, 2012, in which
you make several assertions that Essex Holding, LLC rejects
and which we will not take the time to respond to at this
point. I will, however, reiterate that Essex Holding, LLC has
valid and legitimate business reasons for withholding consent
to modify the Easements with Covenants and Restrictions
Affecting Land .
On October 31, 2012, Mr. Johnson informed Mr. Langfan that
O'Reilly had extended the contract through the end of
December and was willing to adjust the site plan to address
any safety concerns with the ingress and egress points. Mr.
Johnson offered to pay Mr. Langfan for his time to resolve
the issue. Mr. Langfan responded by directing Mr. Johnson to
On December 14, 2012, Basic made a final attempt to secure
Essex's consent. Basic warned Essex's attorney that
Basic would likely lose the O'Reilly sale if Essex
refused to sign a proposed amendment. Essex did not respond.
O'Reilly terminated its contract with Basic on December
In the spring of 2013, Overland Development Corporation
(Overland) contacted Essex about its desire to purchase
Parcel II-D to develop and lease to O'Reilly. Essex
refused to consent to any proposed development, and Overland
terminated its purchase contract with Basic.
On October 15, 2013, Essex filed suit in district court
against Basic and the Laughlins. Essex sought to quiet title
in Essex's easement in the common parking area, a
declaratory judgment invalidating the 1993 Amendment, and
damages for Basic's alleged anticipatory repudiation of
the ECRs. Basic counterclaimed, asserting breach of contract
and tortious interference with the O'Reilly and Overland
sales contracts. Basic also sought declaratory and injunctive
relief for Essex's unreasonable withholding of consent to
modify the ECRs.
The parties stipulated to entry of an order that declared the
1993 Amendment void ab initio. The district court
then dismissed the Laughlins from the litigation, and
dismissed Essex's claims for declaratory judgment and
quiet title, leaving only its anticipatory repudiation claim
against Basic. Essex moved for summary judgment on
Basic's counterclaims. Basic filed a cross-motion for
summary judgment on Essex's anticipatory repudiation
claim. After full briefing and a hearing, the district court
granted Essex's motion for summary judgment on
Basic's tortious interference claim, but otherwise denied
the parties' motions.
Before trial, Essex filed a motion in limine to exclude
Basic's evidence of damages and Basic's land
valuation expert testimony. Essex claimed that monetary
damages were not permitted because (1) the ECRs are equitable
servitudes, not real covenants; (2) the terms of the ECRs did
not permit monetary damages; and (3) the damages sought were
unforeseeable consequential damages. Essex also asserted that
Basic, as the sole owner of Parcel III, could not claim
damages pertaining to Parcel II because the Laughlins did not
join in the counterclaim as Essex alleged the ECRs required.
In its Order After Pretrial Conference, the district court
denied Essex's motion and determined that the ECRs
permitted monetary damages if necessary for "full and
adequate relief"; the damages were foreseeable; and
Basic, as the sole owner of Parcel III, had standing to bring
At the close of the five-day jury trial, Essex moved for
judgment as a matter of law, arguing that Basic lacked
standing. The court denied the motion. Basic moved for
judgment as a matter of law on Essex's claim for
anticipatory repudiation, which the district court granted.
Essex then requested that the court instruct the jury to
disregard any evidence of damages because the Laughlins were
not joined in the counterclaim as co-owners of Parcel II. The
district court did not act on Essex's request.
During the final jury instruction conference, the district
court overruled Essex's objection to Jury Instruction No.
12, addressing damages, and declined to give Essex's
proffered instruction regarding the void 1993 Amendment. The
court reasoned that the parties' stipulated facts
adequately addressed the status of the 1993 Amendment and
Essex could reference the stipulation during its closing
The jury returned its verdict on October 28, 2016, finding
that Essex unreasonably withheld its consent to the proposed
amendment to modify the covenants. Although Basic requested
damages of $315, 000, the amount of the O'Reilly
contract, the jury awarded $200, 000.
The district court requested briefing and closing argument on
Basic's claim for injunctive relief. Basic requested
attorney fees and costs, and Essex renewed its motion for
judgment as a matter of law seeking dismissal of Basic's
counterclaim because it did not own all of Parcel II. During
a February 2017 hearing on the pending motions, Basic
voluntarily withdrew its claim for injunctive relief. The
district court entered a Judgment in favor of Basic for $200,
000 on March 3, 2017. The court entered a Corrected Judgment
on March 7, 2017, to correct a clerical error. On March 10,
2017, the district court entered its Order on Post Trial
Motions, denying Essex's renewed motion for judgment as a
matter of law, dismissing Basic's claim for injunctive
relief, and awarding attorney fees and costs to Basic.
On March 17, 2017, Essex filed its Motion by Plaintiff Essex
Holding, LLC Pursuant to Rule 59 and Rule 60 of the Wyoming
Rules of Civil Procedure (Rule 59 and 60 motion) requesting
that the district court alter or amend the judgment or,
alternatively, grant relief from the judgment. Basic opposed
the motion, contending it essentially repeated arguments the
district court had previously rejected. Basic asserted that
the only "new argument" in the motion-that there
was insufficient evidence to support the jury's damages
award-lacked merit. The district court denied Essex's
Rule 59 and 60 motion by its Order Denying Second Post Trial
Motion, filed on May 4, 2017.
Essex filed its Notice of Appeal on May 26, 2017. The
district court entered a Corrected Order on Post Trial
Motions and Judgment on May 31, 2017, fixing a clerical error
and modifying the title. Essex amended ...