427 P.3d 708
Wyo.2018Background
- Essex and Basic own parcels in Flaming Gorge Shopping Center governed by 1975 restrictive covenants (ECRs) that allow amendment only by written consent of all record owners and provide consent "shall not be unreasonably withheld."
- Developer recorded a 1993 Amendment that later was stipulated void for lack of a required signature; Basic nonetheless sought Essex's consent in 2012 to amend the ECRs to permit development for an O’Reilly auto-parts store.
- Essex stonewalled and then refused consent; Basic lost two sales (O’Reilly, Overland) and sued; Essex sought declaratory relief and alleged anticipatory repudiation; Basic counterclaimed for breach of contract and tortious interference.
- Parties stipulated the 1993 Amendment was void ab initio; district court dismissed some claims, tried Basic’s breach counterclaim to a jury, which awarded Basic $200,000; district court granted fees/costs to Basic and denied Essex’s post-trial Rule 59/60 motions.
- On appeal Essex raised timeliness of appeal, standing, whether the breach claim should have been submitted to the jury, jury instructions about the void 1993 Amendment, cumulative error, JMOL on anticipatory repudiation, attorney fees reasonableness, and denial of Rule 60(b) relief.
Issues
| Issue | Essex's Argument | Basic's Argument | Held |
|---|---|---|---|
| Timeliness of appeal (Did post-judgment motion toll appeal clock?) | Essex’s Rule 59 and 60 motion was timely and tolled appeal; alternatively, its motion was proper | Basic argued the Rule 59/60 motion was a "motion for reconsideration" (nullity) and did not toll | Court held post-judgment motion challenged merits and was treated as Rule 59(e); appeal timely (denied dismissal) |
| Standing to bring counterclaim | Essex: Basic lacked standing to seek damages related to Parcel II because Laughlins (co-owners of Parcel II-A) were not joined | Basic: ECRs benefit all owners; Basic as sole owner of Parcel III and an owner of Parcel II-D had standing | Court held Basic had standing; ¶8(b) reasonably permits any record owner to enforce covenants |
| Submission of breach counterclaim to jury | Essex: Void 1993 Amendment made Basic’s request invalid as a matter of law; modification requests were not proper or ripe | Basic: Repeated requests to modify ECRs, independent of validity of 1993 Amendment, were sufficient; ECRs require consent and not conditioned on a valid prior amendment | Court held ECRs did not condition consent on a valid proposed amendment; submission to jury proper |
| Jury instructions re: void 1993 Amendment (plain error?) | Essex: Instructions improperly presumed a valid request and ignored law-of-the-case that 1993 Amendment was void | Basic: Invalidity of 1993 Amendment did not resolve whether Essex unreasonably withheld consent | No plain error: instructions proper given ECRs’ terms and stipulation addressed the amendment’s status |
| Anticipatory repudiation (JMOL granted for Basic) | Essex: Statements by prospective buyers/agents indicated Basic would proceed, supporting anticipatory repudiation | Basic: No agency or direct statement by Basic; sales contingent on amendment; Basic did not act to breach | Court affirmed JMOL for Basic — evidence legally insufficient for anticipatory repudiation |
| Attorney fees and costs award | Essex: Award inequitable (Basic recovered nothing for Parcel III) and fees not adequately supported/apportioned | Basic: ECRs authorize fees to prevailing party; jury award made Basic prevailing; fee submissions supported | Court held Basic was prevailing party and district court did not abuse discretion in awarding and calculating fees |
| Rule 60(b) relief denial | Essex: Judgment void or extraordinary circumstances (relying on void 1993 Amendment and other trial rulings) | Basic: Issues raised were merits-based and not grounds for Rule 60 relief | Court affirmed denial: no jurisdictional defect; Rule 60(b)(6) not warranted — motion was an improper vehicle to relitigate errors |
Key Cases Cited
- Sherman v. Rose, 943 P.2d 719 (Wyo. 1997) (discusses when post-judgment motions toll appeal time but later refined)
- Plymale v. Donnelly, 125 P.3d 1022 (Wyo. 2006) (held motions titled "reconsideration" are treated as nullity under prior approach)
- Ragsdale v. Hartford Underwriters Ins. Co., 169 P.3d 78 (Wyo. 2007) (confined Plymale; looked to substance of post-judgment motions)
- Yost v. Stout, 607 F.3d 1239 (10th Cir. 2010) (federal standard: a motion challenging the judgment’s substantive correctness is treated as Rule 59(e) for tolling)
- Anderson v. Bommer, 926 P.2d 959 (Wyo. 1996) (standing to enforce restrictive covenants construed in light of recitals and beneficiaries)
- Osterneck v. Ernst & Whinney, 489 U.S. 169 (U.S. 1989) (postjudgment motions that reconsider merits treated as Rule 59(e))