Bouwkamp v. McNeill

902 P.2d 725, 1995 Wyo. LEXIS 180, 1995 WL 555101
CourtWyoming Supreme Court
DecidedSeptember 21, 1995
Docket94-243
StatusPublished
Cited by3 cases

This text of 902 P.2d 725 (Bouwkamp v. McNeill) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bouwkamp v. McNeill, 902 P.2d 725, 1995 Wyo. LEXIS 180, 1995 WL 555101 (Wyo. 1995).

Opinion

LEHMAN, Justice.

We review Marvin and Marcia Bouwk-amp’s contention that the district court erred in granting summary judgment on their claims arising from their eviction from a leased restaurant business. The appellees, Bob G. McNeill, Dorothy 0. McNeill, R. Mi-cheál Reile, and Donna Reile, exercised their rights under a lease agreement to reenter and take possession of the business because they concluded that the Bouwkamps had breached the lease agreement in several significant ways.

We affirm.

*726 ISSUES

Bouwkamps state their issue in a very general way:

Are there genuine issues of material fact which preclude summary judgment in favor of the Appellees on any of the claims asserted by the Appellants?

Appellees have rephrased those issues with more precision:

1. Whether the trial court properly granted summary judgment in favor of the Lessors on the issue of breach of contract when the “lease agreement” which was drafted by Lessees’ attorney contained an express unambiguous provision allowing the Lessors to reenter the leased premises without notice upon any breach by Lessees?
2. Whether the trial court properly granted summary judgment to the Lessors on the issue of wrongful eviction because an express provision of the parties’ lease agreement allowed the Lessors to reenter the leased premises without notice upon a default by Lessees and Lessees defaulted?
3. Whether' the trial court properly granted summary judgment to the Lessors on the issue of conversion because Lessees did not meet the necessary elements for conversion and removed their property and inventory from the leased premises after receiving a notice to quit?
4. Whether the trial court properly granted summary judgment to the Lessors on the issue of intentional interference with prospective business relations because the Lessors are free to compete in the restaurant business?
5. Whether the trial court properly granted summary judgment to the Lessors on the issue of punitive damages because there are no genuine material facts that give rise to a punitive damage claim?

FACTS

By lease agreement dated May 6,1989, the Bouwkamps leased from appellees a bar/restaurant/liquor store business known as “The Timbers.” The agreement, which was drafted by the Bouwkamps, included this provision:

15. In the Event of:
A. Any default by Lessee in the payment of rent or in the performance of any obligations to be kept or performed by Lessee under the terms of this Lease, Lessor may, after three (3) days, and without notice re-enter the property[.]

On May 18, 1990, appellees served the Bouwkamps with a “Notice to Quit Premises.” The notice was signed and dated on May 14, 1990, and gave no reason, or reasons, why the notice to quit was issued. The parties met on May 21, 1990, and the matter of the notice was discussed. The Bouwk-amps claim they did not know the reason(s) for their eviction; but, at the May 21 meeting, they brought a cashier’s check to reimburse appellees for the liquor license fee which appellees had paid as well as proof that they had obtained all insurance coverages required by the lease. The appellees refused to allow the Bouwkamps to cure and insisted on occupying the premises. The Bouwkamps, who had prepared for the occasion, then moved most of the inventory and personal property belonging to them from “The Timbers,” and the appellees changed the locks and reassumed possession.

On October 18, 1991, the Bouwkamps filed suit alleging: (1) that appellees converted the restaurant business, as well as some of their personal property; (2) wrongful eviction; (3) breach of the lease agreement; and, (4) intentional interference with prospective business relations. Appellees filed a motion for summary judgment, asserting that the Bouwkamps did not pay the rent due on May 6, 1990, until May 14 and the Bouwkamps’ liquor liability policy was to expire on May 14, 1990. Additionally^ appellees alleged that, at the time of reentry, the Bouwkamps: (1) had no general public liability insurance and no property damage insurance; (2) had failed to timely pay the fee for the county liquor license; and, (3) failed to make repairs. All of those responsibilities were assigned to the Bouwkamps by the lease agreement.

DISCUSSION

Summary judgment is appropriate when no genuine issues of material fact exist *727 and the prevailing party is entitled to judgment as a matter of law. A genuine issue of material fact exists if it would have the effect of establishing or refuting an essential element of the cause of action or a defense. Of course, we examine the record from the vantage point of the party who opposes the motion, and we give to that party the benefit of all favorable inferences which may fairly be drawn from the record. We will sustain a summary judgment on any legal ground appearing in the record. Bidache, Inc. v. Martin, 899 P.2d 872, 873-74 (Wyo.1995).

The Bouwkamps assert they had cured, or attempted to cure, all violations of lease covenants on May 21, 1990, and, therefore, the appellees had no right to reenter and take possession of the premises. 1 Appel-lees’ acceptance of the late rent payment in May 1990 may have operated to cure that default, System Terminal Corp. v. Cornelison, 364 P.2d 91, 95 (Wyo.1961); Larsen v. Sjogren, 67 Wyo. 447, 226 P.2d 177, 183 (1951), and the district court ruled that the timeliness of payment of the license fee presented an issue of fact “as to the definition of the actual due date.” However, the failure of the Bouwkamps to have maintained the insurance coverages required by the unambiguous terms of the lease were obviously material breaches of the lease. These are not trivial, inadvertent, or technical problems but are violations which went to the heart of the agreement between the parties. These failures resulted in appellees having a right to terminate the lease in accordance with its express terms. See Howe v. Professional Manivest, Inc., 829 P.2d 160, 164 (Utah App.1992); Riverside Dev. Co. v. Ritchie, 103 Idaho 515, 650 P.2d 657, 665-66 (1982). The terms of this lease with regard to breach and right of reentry are harsh. However, not only did the Bouwkamps agree to those terms, they drafted the lease. Within the confines of this record, we can see no reason to relieve the Bouwkamps of their failure to abide by the agreement’s plainly stated terms. See Quin Blair Enterprises, Inc. v. Julien Const. Co.,

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Bluebook (online)
902 P.2d 725, 1995 Wyo. LEXIS 180, 1995 WL 555101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bouwkamp-v-mcneill-wyo-1995.