positive-progressions-llc-a-wyoming-limited-liability-company-northern ( 2015 )

IN THE SUPREME COURT, STATE OF WYOMING
2015 WY 138
OCTOBER TERM, A.D. 2015
October 23, 2015
POSITIVE PROGRESSIONS, LLC, A
Wyoming Limited Liability Company,
NORTHERN DEVELOPMENTAL
DISABILITY SERVICE PROVIDERS,
INC., A Wyoming Corporation, and
NATHAN COOK,
Appellants
(Defendants),
v.
AMY LANDERMAN, f/k/a Amy Baxter,
Appellee
(Plaintiff).
S-14-0250, S-14-0313
POSITIVE PROGRESSIONS, LLC, A
Wyoming Limited Liability Company,
NORTHERN DEVELOPMENTAL
DISABILITY SERVICE PROVIDERS,
INC., A Wyoming Corporation, and
NATHAN COOK,
Appellants
(Defendants),
v.
AMY LANDERMAN, f/k/a Amy Baxter,
Appellee
(Plaintiff).
Appeal from the District Court of Park County
The Honorable Robert E. Skar, Judge
Representing Appellants:
Deborah Ford Mincer*, Cheyenne, WY.
Representing Appellee:
Stephen L. Simonton, of Stephen L. Simonton, P.C., Cody, WY.
Before BURKE, C.J., and HILL, **KITE, DAVIS, and FOX, JJ.
*Order allowing withdrawal of counsel and substitution of counsel entered on October 17, 2014.
** Justice Kite retired from judicial office effective August 3, 2015, and pursuant to Article 5, § 5 of the
Wyoming Constitution and Wyo. Stat. Ann. § 5-1-106(f) (LexisNexis 2015) she was reassigned to act on
this matter on August 4, 2015.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.
[¶1] Appellant Nathan Cook appeals a judgment awarding Appellee Amy Landerman
$149,189.48 after the district court found Mr. Cook fraudulently obtained shares of Ms.
Landerman’s company, Northern Developmental Disability Service Providers, Inc., a
Wyoming Corporation.
[¶2] We will affirm the district court in all respects.
ISSUES
[¶3] Appellants present four issues for our review:
1. Whether the trial judge erred as a matter of law in finding
that Nathan Cook committed fraud and the fraud
warranted an award of punitive damages?
2. Whether the trial judge erred as a matter of law in
disregarding the written contract of the parties?
3. Whether the trial judge erred as a matter of law in
ordering reformation of a written share purchase
agreement?
4. Whether the cumulative errors in the case constitute
deprivation of the rights of the [Appellants] to a fair trial?
STANDARD OF REVIEW
[¶4] In general, we apply the following standard when reviewing a district court’s
decision after a bench trial:
The factual findings of a judge are not entitled to the limited
review afforded a jury verdict. While the findings are
presumptively correct, the appellate court may examine all of
the properly admissible evidence in the record. Due regard is
given to the opportunity of the trial judge to assess the
credibility of the witnesses, and our review does not entail re-
weighing disputed evidence. Findings of fact will not be set
aside unless they are clearly erroneous. A finding is clearly
erroneous when, although there is evidence to support it, the
reviewing court on the entire evidence is left with the definite
and firm conviction that a mistake has been committed.
Moore v. Wolititch, 2015 WY 11, ¶ 9, 341 P.3d 421, 423 (Wyo. 2015) (quoting Miner v.
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Jesse & Grace, LLC, 2014 WY 17, ¶ 17, 317 P.3d 1124, 1131 (Wyo. 2014)).
[¶5] With regard to the trial court’s findings of fact,
“we assume that the evidence of the prevailing party below is
true and give that party every reasonable inference that can
fairly and reasonably be drawn from it.”
Moore, ¶ 10, 341 P.3d at 423 (quoting Miner, ¶ 17, 317 P.3d at 1131).
[¶6] The district court’s conclusions of law, however, are subject to our de novo
standard of review. Morris v. CMS Oil & Gas Co., 2010 WY 37, ¶ 12, 227 P.3d 325, 330
(Wyo. 2010), (quoting Lieberman v. Mossbrook, 2009 WY 65, ¶ 40, 208 P.3d 1296, 1308
(Wyo. 2009) (citations omitted)).
FACTS
[¶7] In November of 2010, Amy Landerman approached Nathan Cook about buying
her business, Northern Developmental Disability Service Providers, Inc. (Northern). Mr.
Cook expressed interest in buying the business. On January 24, 2011, Ms. Landerman e-
mailed Mr. Cook and offered to sell Northern for $247,500. Mr. Cook indicated his
interest in buying the business and the two agreed to meet at Northern’s office on
February 23, 2011.
[¶8] At the February 23, 2011, meeting between Ms. Landerman and Mr. Cook, Mr.
Cook’s friend and “member of his financial team,” Rich Hydo, was also present. At the
beginning of the meeting, Mr. Cook said that he was comfortable with Ms. Landerman’s
sale price of $247,500, but had specific payment terms in mind. Mr. Cook proposed
$175,000 down at closing, with the $72,500 balance of the purchase price to be paid in
quarterly installments over three to five years. Ms. Landerman and Mr. Cook agreed to
those terms and the remainder of the meeting was devoted to the parties’ discussion about
religion.
[¶9] On March 23, 2011, Mr. Cook delivered a “soft agreement” to Ms. Landerman.
The Agreement stated that Mr. Cook would pay $175,000 at closing with thirty-six
months of installments of 3% profits, payable quarterly. Ms. Landerman responded to
Mr. Cook in an e-mail that same evening. Ms. Landerman reiterated that the purchase
price was $247,000.1 She also reiterated that she would agree to a $175,000 down
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Mr. Cook argues that the March 23rd e-mail shows a “conflict” with Ms. Landerman’s earlier
testimony, because she stated the purchase price was $247,000, rather than $247,500. Ms. Landerman
testified that she inadvertently truncated the number: “I mean, it was seven o’clock at night, I worked all
day, I had triplets running around, I was typing an e-mail.” The district court found neither conflict, nor
impeachment.
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payment and the installments proposed by Mr. Cook, but if those installments did not
total $72,000, a balloon payment would have to make up the difference at the end of three
years.
[¶10] Mr. Cook responded by e-mail on March 28 and said he wanted a conference call
“to get this finalized and then I can pass it along to my lawyer to work on the final
contract.” He did not dispute terms discussed in previous e-mails. At trial, Mr. Cook
testified that he, Mr. Hydo, and Ms. Landerman had a conference call on March 29, 2011,
where they all agreed to something different than the initial terms. The district court
found Mr. Cook’s testimony as to this particular conference call was not credible and
“unbelievable.”
[¶11] As Mr. Cook and Ms. Landerman had apparently agreed to the sale terms, other
steps were being taken to finalize the business sale. On April 1, 2011, Ms. Landerman
and Mr. Cook notified Northern’s clients and their case managers that an agreement for
the sale of the business had been made and would close by the end of the month. The
notice was prepared together by Ms. Landerman and Mr. Cook. Ms. Landerman also
notified the Commission on Accreditation of Rehabilitation Facilities (CARF), which
approves the ownership change of associated facilities. Also, the State of Wyoming’s
Department of Health required transition meetings and final authorization of the
ownership change. On April 29, Mr. Cook and Ms. Landerman both participated in a
phone call with the supervisory State regulators at the Wyoming State Department of
Health’s Developmental Disabilities Division (DDD). In fact, the head of DDD
requested that Ms. Landerman be excused from the Medicaid transfer discussion for
confidentiality reasons, “if everybody is comfortable, this transfer is happening – you are
set, it’s going to be soon, any day.” Mr. Cook assured everyone present that the transfer
would take place, and Ms. Landerman was then dismissed from the meeting. A second
letter was sent to all of Northern’s clients on May 9, 2011 stating that Mr. Cook was
purchasing Northern, and instructing clients to contact the DDD within 30 days of the
closing, which the letter stated “We anticipate that the purchase will be on or before June
1, 2011.” By the end of May, the transfer of the CARF accreditation and the Medicaid
authority was complete, both of which had included Mr. Cook’s full participation. Also
by the end of May, Mr. Cook had the keys to Northern’s building.
[¶12] While things seemed to be progressing, DDD expressed concern that there was
ambiguity surrounding the actual date of change of ownership because certain regulations
specified that transition interviews with clients had to be completed within 30 days of the
transfer in ownership. Mr. Cook assured DDD that there was an agreement in place. Mr.
Cook even indicated that there were technical paperwork hurdles at the bank that would
be resolved, but in the meantime, he offered to give Ms. Landerman a $25,000 earnest
money deposit. In fact, Mr. Cook paid that amount to Ms. Landerman within five
business days.
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[¶13] Mr. Cook testified at trial about the steps he took to secure financing from Wells
Fargo Bank during May of 2011. He applied for financing at Wells Fargo, but did so
listing Northern as the borrower, unbeknownst to Ms. Landerman, for the amount of
$140,000. He testified at trial that he did so because he knew Wells Fargo would not
lend him the full $175,000 closing payment. He therefore asked Ron Hill to be a
guarantor/co-signor on his loan. However, Mr. Hill testified at trial that Mr. Cook told
him the total purchase price was $175,000 total, not $247,000, and that Mr. Cook told
him that Ms. Landerman had agreed to carry $45,000 of the total $175,000. Mr. Hill
testified that he would not have agreed to guarantee the loan had he known the actual
price was over $200,000. When preparing his loan application, Mr. Cook indicated to his
accountant that the price was only $175,000, and he applied for a loan with Northern
listed as the borrower, in the amount of $140,000.
[¶14] On the morning of June 8, 2011, Mr. Cook called Ms. Landerman to tell her that
the loan was being closed that day. He indicated that he wanted her to sign their
Agreement. Because Mr. Cook had applied for his loan under Northern’s name, in order
to close, the Bank required the transfer of stock, corporate resolutions and certifications,
and signature card on Northern’s accounts before the money would be loaned. The bank
loan was for $131,000 to Northern, with a $10,000 line of credit to Mr. Cook’s company,
Positive Progressions.
[¶15] Mr. Cook went to Ms. Landerman’s office and told her there was a problem with
the loan and that “the bank did not lend me everything. I’m $44,000 short.” Therefore,
he would be unable to pay the $175,000 at closing. Ms. Landerman testified at trial that
Mr. Cook pleaded with her to make a deal for the remaining $44,000. She agreed, with
the understanding that Mr. Cook would come back later with an updated Agreement and
that they would work out the payment details then. Mr. Cook then left Northern’s office
building. A witness outside the office building testified that she saw Mr. Cook come out
of the building and go to his car and rummage around. The witness stated that Mr. Cook
never left the parking lot but instead, he walked back into the building. No changes had
been made to the Agreement.
[¶16] After Mr. Cook came back into the building, he and Ms. Landerman met again in
her office. She testified that he was rushed and kept urging her to hurry. She attempted
to read the first page of the contract but testified that Mr. Cook leaned in and put his
hands between her and the document. According to Ms. Landerman, Mr. Cook said, “It’s
all there, everything we agreed to, just, you know, legal mumbo jumbo, you don’t have to
sit and read the whole thing because I have to go.” Ms. Landerman then signed the
Agreement without reading it. She did testify that the document had no attachments, nor
was it dated. In direct opposition to Ms. Landerman’s testimony, Mr. Cook testified that
he never went to Northern on June 8. Rather, he testified that the Agreement was signed
a full month earlier. The date, he said, was somewhere around May 6, 2011. The district
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court made a number of findings that Mr. Cook was not being truthful when he testified
to this.
[¶17] At the end of the day on June 8, 2011, Mr. Cook paid Ms. Landerman $94,000.
Instead of paying her $175,000 as agreed, he deducted $25,000 earnest money, $6,000 for
a loan owed to Northern by an employee, $5,000 for “intent to purchase warranties” that
required Ms. Landerman to reimburse any money recently paid to her from the
corporation, and $10,000 as a temporary loan to cover cash flow shortfalls. Regarding
the $10,000 amount, Mr. Cook gave Ms. Landerman a post-dated check for $10,000 to be
cashed on June 20, 2011. However, Mr. Cook stopped payment on that check on June 9,
2011. Along with the $25,000 earnest money payment, Ms. Landerman had only been
paid a total of $119,000.
[¶18] On September 22, 2011, Ms. Landerman filed a Complaint against Mr. Cook, his
company Positive Progressions, and Northern. The matter eventually went to trial and
the district court entered judgment against Mr. Cook. The district court found clear and
convincing evidence that Mr. Cook committed fraud in the inducement and fraud in the
execution. The district court also found that an agreement existed between the parties,
but that terms the parties agreed on were not reflected in the Agreement, in large part
because of the fraud committed by Cook. The court computed damages as the difference
between the $247,000 promised by Mr. Cook and the $119,000 paid by him. With
prejudgment interest, the total damages equaled $149,189.48. The district court also
awarded punitive damages in the form of attorney fees and costs in the amount of
$114,063.19.
[¶19] Mr. Cook appealed both judgments separately, and this Court consolidated those
appeals.
DISCUSSION
Fraudulent Inducement
[¶20] We first address Mr. Cook’s argument that the district court’s finding of fraud in
the inducement should be reversed. Mr. Cook argues for reversal because Ms.
Landerman has “no tort damages, and because Landerman’s testimony did not prove, by
clear and convincing evidence, that Cook’s conduct rose to the level of fraud.” We will
address these in order.
A. Tort Damages (Economic Loss Rule)
[¶21] Mr. Cook argues that because the entirety of Ms. Landerman’s claimed damages
arose out of the contract, and because there are no tort damages, the fraud count should
be dismissed as a matter of law. This raises questions under the economic loss rule.
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Unfortunately for Mr. Cook, this issue is brought before this Court after no attempt to
raise it below. Therefore, we will not consider it. “With the exception of certain
jurisdictional or fundamental issues, we will not consider issues raised for the first time
on appeal.” Meima v. Broemmel, 2005 WY 87, ¶ 56, 117 P.3d 429, 447 (Wyo. 2005).
B. Sufficiency of the Evidence
[¶22] We next address whether there was sufficient evidence presented at trial such that
the district court was able to find fraud in the inducement. The district court made
numerous detailed findings regarding fraud in the inducement. They bear repeating here:
64. Prior to June 8, 2011, to induce Plaintiff to sign the Share
Purchase Agreement, Defendant Cook represented and led
Plaintiff to believe he would pay $247,000 total with
$175,000 at closing and payments totaling $72,500 over three
years.
a. Defendant testified at trial that his intention was to pay
only $125,000 for the company.
b. On January 25, 2011, Plaintiff made a written offer to
Defendant Cook to give him first option to buy the
Company for $247,500.
c. When the parties met on February 23, 2011, at Northern’s
offices, Defendant Cook simply asked for terms where he
would pay $175,000 at closing and the balance over 3 to 5
years as a percentage of gross revenue. He further falsely
represented that he had the resources to pay the $175,000
at closing.
d. One month later, on March 23, 2011, Defendant Cook met
with Plaintiff at Northern and delivered Exhibit 46 which
proposed an offer for payment of $175,000 at closing plus
3 percent net over three years.
e. Plaintiff immediately responded to Exhibit 46, with Exhibit
45 also see Exhibit 60, an email exchange that stated she
must have $247,000 and that payments after closing had to
total $72,000 over three years. This Court determines that
these are the terms of the agreement reached between the
parties and relied on by Plaintiff ($247,000.00 not
$247,500.00).
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f. Defendant emailed Exhibit 61 indicating his desire to meet
and finalize the agreement so his lawyer could work on the
final agreement. Defendant Cook did not mention, let
alone reject or otherwise contradict Plaintiff’s statement as
to the purchase price or the payment terms set forth in her
Exhibit 45 email.
g. Instead, Defendant made representations that “we have a
deal.” These included representations on April 29, 2011, in
front of Plaintiff to regulators from the State of Wyoming’s
Department of Health, Division of Developmental
Disability that “we have a deal” and reassuring the
department[’]s officials as well as Plaintiff that he was only
waiting for the bank to finish processing the financing and
for his lawyer to finish the formal contract documents.
These statements made to Plaintiff and in her presence
affirmed Defendant Cook’s agreement to Plaintiff’s share
purchase terms of $175,000 down at closing and $72,000
paid over 3 to 5 years.
h. At no point thereafter did Defendant Cook disclose to
Plaintiff that he was preparing the Agreement with
different terms. Instead, he presented the Agreement to her
on June 8 with the representation that it has “everything
you wanted.”
65. Defendant Cook’s representations to Plaintiff about
paying the $247,500 purchase price and the $175,000 at
closing were false; he never intended to pay either sum.
In April and May leading up to the June 8, 2011 execution
and closing of the Agreement, Defendant Cook told Mr. Hill,
Mr. Whittle and the Bank that the purchase price was only
$175,000.
a. Defendant Cook’s notes of a conversation between him
and the Bank (Exhibit 66) reflect him telling the Bank the
total purchase price would be $175,00.00 and being told
by the Bank that it would require him to contribute 25% of
the purchase price and have a guarantor.
b. Defendant Cook solicited Ron Hill to be his guarantor
and, before Mr. Hill filled out the necessary Bank papers
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on April 25, Cook told him that the total price would be
$175,000 with Plaintiff agreeing to carry $45,000 of the
$175,000 over three years.
c. On or about May 4, 2011, Defendant Cook spoke with his
accounting firm of Whittle, Ostler, Hamilton and
Associates. According to notes by Dave Whittle, a
principal in the firm, Defendant Cook told him that the
purchase price would be $175,000. (Exhibit 97)
d. Accordingly, Defendant Cook never had any intention of
paying Plaintiff’s purchase price of $247,500 despite his
representations to Plaintiff he would in the February 23
meeting and reaffirmed in the March 23 discussion and the
follow-up e-mails, followed by the representations to
Plaintiff and State officials about having a deal with
Plaintiff.
e. Defendant Cook’s false representations to the
aforementioned third parties about the purchase price
further support his propensity to make repeated false and
fraudulent representations to secure his objective loans,
guarantees and business purchase.
66. The loan application submitted for $140,000 by
Defendant Cook to Wells Fargo Bank on May 6, 2011,
combined with his statements to Ron Hill and Dave Whittle,
shows that Defendant Cook never intended to pay the
$175,000 closing payment that is specified in the agreement.
67. Defendant Cook intentionally misrepresented what Wells
Fargo was doing on the morning of June 8 in order to get
plaintiff to transfer the stock of Northern to him without his
having to pay the contractual $175,000 payment at closing,
Defendant told Plaintiff that the Bank unexpectedly shorted
his loan by $44,000.
68. Defendant Cook created the appearance of a mere short
term unexpected glitch by personally reassuring plaintiff,
saying “you know I am good for it.” These statements were
made to Plaintiff to get her to sign over the shares of stock
without receiving the $175,000 due at closing.
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69. Defendant Cook’s representation of a sudden and
unexpected emergency was patently false as was the
representation that the Bank loan was short $44,000. (Exhibit
28, Resp. to Interrogatory 9.)
a. Defendant Cook testified that his initial conversations
with the Bank about the loan were about obtaining
conventional financing of $140,000 or SBA financing of
$149,000 at a higher rate. He thus knew from the outset
that he was not getting financing of $175,000.
b. Defendant Cook’s loan application, submitted on May 6,
2011, was for only $140,000. He knew for more than two
months before closing on June 8, 2011, that the Bank loan
would be less than the contractually promised $175,000
closing payment.
c. Until the May 27, 2011 notice from Wyoming Department
of Developmental Disabilities’ Linda Hallock, Defendant
Cook did nothing to cover the difference between the
$140,000 loan application and the $175,000 required at
closing. However, when it appeared that the transaction
might derail, he quickly found another $25,000 to give
Plaintiff an earnest money deposit.
d. Defendant Cook’s testimony was that on June 8, 2011, the
Bank informed him for the first time that it was only
loaning $131,000 to Northern. (exhibit 8) He said he was
shocked to learn of the Bank’s decision to short him
$44,000. Mr. Hill testified that Defendant Cook acted
shocked to learn that the loan was only going to be
$131,000. Defendant Cook’s further testimony, however,
was that the Bank extended an additional $10,000 line of
credit of his company, Positive Progressions, LLC,
totaling $141,000. The combined loans were $1,000 more
than had been requested in Defendant Cook’s loan
application. Therefore, the Bank did not short him or
Northern $44,000 on June 8. In fact, the loans were in
excess of the application and not short at all.
e. For defendant Cook to represent to Plaintiff that the Bank
had shorted his loan by $44,000 in order for him to get her
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to transfer the stock to Northern without having to pay the
$175,000 was knowingly fraudulent.
f. Adding the $25,000 earnest money advanced by Positive
Progressions on June 3 and the $141,000 loaned by the
Bank on June 8 totals $166,000 which is only $9,000
“short” of the $175,000 on June 8th, not the $44,000 that
Defendant Cook represented to Plaintiff.
g. Rather than a shocking new revelation that he would be
$44,000 short occurring for the first time on June 8, 2011,
Defendant Cook had known from prior to his May 6, 2011
loan application that without additional funding, he was
going to be short sufficient funds to pay the $175,000. He
knew from Exhibit 66 that his conventional loan would
only produce $131,000 in loan proceeds regardless of the
amount of his application. Thus, he knew prior to his May
6, 2011 loan application that the loan approval would be
$44,000 short of the $175,000 down payment due at the
time of closing.
h. Defendant Cook’s statement to plaintiff that “you know I
am good for it” to induce her to give him leniency or
accommodation to pay the $44,000 he claimed he was
short was a false representation at the time it was made
was fraudulent.
70. Defendant Cook’s subsequent conduct shows that he had
no intention of paying the $44,000 he led Plaintiff to believe
that he was short. Exhibit 76 shows that Defendant’s first
transactions in Northern’s bank accounts after closing were to
remove $22,532 as reimbursement to himself and his father-
in-law for money paid to Plaintiff by Positive Progressions,
and spend on acquiring Northern’s shares. Defendant Cook
wrote checks from Northern’s account to his wife Hillary in
the sum of $7,532.40 (rather than to positive Progressions,
LLC, the source of the down payment monies) and to his
father-in-law Merrill Hutchenson in the sum of $25,000.00
(rather than to Positive progressions LLC, the source of the
down payment monies) on June 17, 2011. That Exhibit
shows that he had adequate funds in Northern’s account to
pay the $9,000 he was short on the purchase price plus the
$10,000 Plaintiff loaned Northern, yet he chose to pay
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himself and his father-in-law rather than Plaintiff. This is
also an example of the alter ego commingling of funds within
the two entities Positive Progressions LLC, Northern and
Defendant Cook and/or Hillary Cook. It is clear to this Court
that Nathan Cook, Positive Progressions LLC and Northern
are all the same under the control of and used by Defendant
Cook as he wishes without regard to the entity formalities or
status required of LLCs or Corporations
71. Defendant Cook admitted to adding the date of execution
at some undefined time after the date of execution. There was
at least one indication that at least one page of the Agreement
may have bee substituted after the time the Agreement was
signed by Plaintiff. For example, on page 3, the end of
Paragraph 4.1e ends in an incomplete sentence which is not
continued on page 4 of Exhibit 1 and Exhibit 1a. No
evidence was produced by Defendant Cook or the other
entities explaining that abrupt ending which page also
happens to include Defendant’s claimed contract warranties
that he used as a basis of withholding the monies from
Plaintiff. None of the pages of the Agreement were initialed
by either party.
72. Defendant Cook gave testimony and his counsel argued
that at the time when the Agreement was signed on June 8,
2011 he believed Plaintiff was in breach of the Agreement,
that he would not be bound by it. The inference is that
Defendant Cook had no intention of performing his and/or the
other Defendants’ obligations under the Agreement when he
signed it on June 8, 2011.
73. Defendant Cook testified he had not read the Agreement
that he had Plaintiff sign.
74. Defendant Cook testified that he had his lawyer draft the
Agreement so that Plaintiff would be locked in.
75. At the afternoon’s informal closing (after Plaintiff signed
the Agreement) at Northern’s offices on June 8, 2011,
Defendant Cook represented to Plaintiff that the Agreement
prohibited her from paying for personal expenses out of the
business accounts prior to the signing of the Agreement. He
told her that she had to reimburse the company for such
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expenses. With that false statement, he extracted her
admission of having taken distributions of $5,000 for pre-
agreement personal spending (distributions) out of the
company. He represented to her that the Agreement (which
he was withholding from her) therefore required her to pay
that money to Northern for him.
76. Defendant Cook also falsely represented to Plaintiff that
she had failed to disclose a loan to Nabu Livingston and that
the Agreement’s warranties required her to pay that amount
personally. Again without providing her with a copy of the
Agreement, he represented to her that he was deducting the
$6,000 loan from the amount of money owed to Plaintiff at
the closing.
77. The Livingston Loan had been disclosed to Defendant
Cook in April (Exhibit 4) and he elected to close without
requiring any disclosures be attached to the Agreement.
78. Defendant Cook asked plaintiff to meet with him at
Northern on July 20, 2011 to discuss the situation. Exhibit 76
shows that he deposited $10,000 to Northern’s account on
July 19 the day before the meeting. He removed it after he
stalled Plaintiff’s attempts to get paid (exhibit 76) and then
cancelled the June 20 check. (Exhibit 18)
[¶23] With the court’s findings in mind, we turn to whether they are supported by the
evidentiary record such that the district court could conclude that Mr. Cook committed
fraud in the inducement. A plaintiff alleging fraudulent inducement carries the burden of
showing by clear and convincing evidence that
1) the defendant made a false representation intending to
induce action by the plaintiff;
2) the plaintiff reasonably believed the representation to be
true; and
3) the plaintiff suffered damages in relying on the false
representation.
Claman v. Popp, 2012 WY 92, ¶ 43, 279 P.3d 1003, 1016 (Wyo. 2012) (quoting Bitker v.
First Nat’l Bank, 2004 WY 114, ¶ 12, 98 P.3d 853, 856 (Wyo. 2004)). “Clear and
convincing evidence is the ‘kind of proof which would persuade a trier of fact that the
truth of the contention is highly probable.’” Alexander v. Meduna, 2002 WY 83, ¶ 29, 47
12
P.3d 206, 216 (Wyo. 2002) (quoting MacGuire v. Harriscope Broadcasting Co., 612
P.2d 830, 839 (Wyo. 1980)).
[¶24] We note that Mr.. Cook’s arguments on appeal rely for the most part on a
rehashing of the testimony and exhibits given and presented at trial, without citing too
much authority at all. We will not reweigh testimony on appeal. FFJ v. ST, 2015 WY
69, ¶ 14, 348 P.3d 415, 420 (Wyo. 2015). “This Court ... does not reweigh evidence.
Instead, we view the facts in the light most favorable to the prevailing party.” Id. (citing
Hayzlett v. Hayzlett, 2007 WY 147, ¶ 8, 167 P.3d. 639, 642 (Wyo. 2007)).
[¶25] Our review of the record persuades us that it contains more than sufficient
evidence to support the district court’s determination that Mr. Cook committed fraud in
the inducement. Mr. Cook testified at trial that he only intended to pay $125,000 for the
business. Yet, e-mails exchanged between Ms. Landerman and Mr. Cook show an
agreed upon purchase price of $247,500. Subsequent behavior by Cook establishes that
his intent was never to pay. Mr. Cook’s misrepresentations were numerous, including his
false statements to Ms. Landerman, Wells Fargo Bank, his guarantor Mr. Hill, and
beyond.
[¶26] Also supporting Mr. Cook’s fraudulent inducement of Ms. Landerman is the
parties’ often opposing testimony given at trial. The district court addressed those
discrepancies with credibility determinations. The district court was in the best position
to make those determinations, and we defer to its determinations. Walter v. Walter, 2015
WY 53, ¶ 12, 346 P.3d 961, 966 (Wyo. 2015) (“We have often said that the credibility of
witnesses is for determination by the trial court.”). Given the testimony and evidence
presented at trial, we have no reason to question the district court’s credibility
determination and subsequent evidentiary ruling. Conflicts in testimony are to be
resolved by the trier of fact. Forshee v. Delaney, 2005 WY 103, ¶ 12, 118 P.3d 445, 449
(Wyo. 2005). Here, the district court resolved the conflict in favor of Ms. Landerman.
Such resolution was particularly justifiable in light of the district court’s finding that Mr.
Cook made numerous contradictory statements and that he was “extremely vague,”
“contradictory,” “non-responsive,” “evasive” and “misleading.” Mr. Cook’s refusal to
produce cell phone records also contributed to the court’s findings. The district court
noted that Mr. Cook “came up with a new version of facts indicating that the Agreement
was signed at some time prior to June 8, 2011,” which the court found to be “not
credible.” In fact, rather than simply excluding Mr. Cook’s testimony, the district court
specifically found it to be “not credible.”
[¶27] We conclude that there was more than sufficient evidence for the district court to
find fraud in the inducement.
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Punitive Damages/Attorney’s Fees
[¶28] Mr. Cook argues next that punitive damages should be reversed because his
conduct “does not rise to the level of conduct required to support a punitive damages
award.”
[¶29] Wyoming law abides by the American rule, providing that each party is
responsible for his or her own attorney fees. Thorkildsen v. Belden, 2012 WY 8, ¶ 10,
269 P.3d 421, 424 (Wyo. 2012). Attorney fees are recoverable under the American rule
only where a contractual or statutory provision authorizes such recovery, or as a form of
punitive damages when such damages can properly be awarded. Alexander, ¶ 49, 47 P.3d
220-21; see also Olds v. Hosford, 354 P.2d 947, 950 (Wyo. 1960) (recognizing an
exception to the general rule denying recovery of attorney fees and costs in a replevin
action where “fraud, malice, oppression or willful wrong” can be shown). To determine
the reasonableness of the attorney’s fees award, Wyoming employs the two-factor federal
lodestar test. These factors are: “(1) whether the fee charged represents the product of
reasonable hours times a reasonable rate; and (2) whether other factors of discretionary
application should be considered to adjust the fee either upward or downward.”
Alexander, ¶ 49, 47 P.3d 220-21. The trial court’s determination concerning attorney’s
fees is reviewed under an abuse of discretion standard. Id.
[¶30] The district court awarded Ms. Landerman punitive damages in the amount of
$114,063.19 “representing an award of attorney fees of $111,029.25 and litigation
expenses and costs totaling $3,033.94.” In arriving at its decision, the district court
elaborated on the seven factors originally enunciated by this Court in Farmers Ins. Exch.
v. Shirley, 958 P.2d 1040 (Wyo. 1998). Alexander, ¶ 42, 47 P.3d 220. There, this Court
applied factors approved by the United States Supreme Court in BMW of N. Am. v. Gore,
517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996).
[¶31] What follows are the Shirley factors and the district court’s application of them to
the evidence in this case:
a. Reasonable relationship to harm inflicted: Plaintiff
pointed to the findings in the judgment as demonstrating
that Defendants inflicted severe and direct financial harm
on the Plaintiff in the amount of $149,189.48 in damages.
[ … ]. The Affidavit of Landerman further described
serious, oppressive, harsh, emotional and financial impacts
that resulted for Plaintiff and her three young children from
Defendant Cook’s misconduct.
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b. Reprehensibility and cover-up: Plaintiff contended that the
findings in the Judgment already document [the] extent of
this factor with findings of multiple willful
misrepresentations of material facts as well as outright
falsehoods. Among other things, Plaintiff pointed to the
Court’s findings that Defendant Cook traded on his and
Plaintiff’s religious faiths [ … ] and to the Judgment’s four
pages of findings on false and misleading statements by
Defendant Cook in testimony [ … ]. The Affidavit of
Simonton also was submitted as support for Plaintiff’s
contentions about Defendant’s litigation tactics, apparent
concealment of evidence, misrepresentations of fact in
discovery and testimony, and the frequency of such
conduct.
c. Regarding the factor of whether the wrongful conduct was
profitable to the defendant: Plaintiff contended that
findings of fact in the Judgment and evidence admitted at
trial showed that Defendant was attempting to pay a mere
fraction of what he had promised to pay and that his wealth
had increased greatly since defrauding Plaintiff into
transferring her stock in Northern DDSP to him on June 8,
2011. Pointing to the record and the affidavits before the
Court, Plaintiff contended that Defendant Cook’s
misconduct extended for two and one half years. She
contended Defendant Cook reaped the business benefits of
having Plaintiff’s business while not paying what was
owed. Plaintiff contended that the record and submissions
showed that Defendant engaged in an extensive attempted
cover-up, including willfully concealing evidence,
deliberately misleading discovering responses,
misrepresentations to the Court, and giving testimony at
trial that was patently false. [ … ] Plaintiff pointed to the
Defendant’s tax returns and acquisition of other properties
and businesses while withholdings funds owed to Plaintiff
as well as the matters in the judgment. Plaintiff also
supplemented with additional documents consisting of a
financial statement and attachments [ … ] subpoenaed from
Big Horn Federal Savings Bank with regard to a June 12,
2014 loan granted to Defendant. Plaintiff argued that
Exhibit 20 showed that Defendant had managed to leverage
a very large increase in his net worth to $2.4 million, up
considerably from the net worth claimed by him in an April
15
2011 financial statement that he submitted to Wells Fargo
Bank […]. Plaintiff further contended that Exhibit 20
demonstrated that Defendant Cook was representing to Big
Horn Federal Savings Bank that without any appreciable
increase in Northern DDSP’s revenues, the stock he
acquired from Plaintiff should be valued at $420,000. That
is nearly twice what the Judgment found Defendant Cook
had agreed to pay Plaintiff. It was three and a half times
the amount he was found to have actually delivered to her.
Plaintiff contended that the amount of punitive damages
sought as attorney fees was only a fraction of the gains
Defendant Cook obtained through his fraud and that the
award of all attorney fees would not come close to
removing all of the Defendants’ profit in the transaction.
d. With regard to the factor of Defendant’s financial position:
Plaintiff pointed to the admitted trial exhibits of
Defendants’ income tax returns and filings and their
financial statements through 2012. Plaintiff also submitted
Defendant Cook’s 2013 Federal income tax return and his
June 2014 financial statement showing him currently
having a net worth of $2.4 million [ … ].
e. With regard to the factor that “all the costs of litigation
should be included, so as to encourage Plaintiffs to bring
wrongdoers to trial”. Plaintiff contended that her
submissions on her attorney fees and costs satisfied this
requirement.
f. With regard to whether Defendant has been subjected to
criminal sanctions that would mitigate punitive damages:
[…] no criminal sanctions mitigate the matters covered by
this Judgment.
g. With regard to other civil actions against Defendant for the
same conduct: Plaintiff demonstrated that there were none.
[¶32] With our standard of review in mind, we conclude that the district court’s award of
punitive damages in the form of attorney fees and costs was proper and absolutely within
its discretion. The district court’s findings are quite detailed, and the record contains
ample evidence supporting the district court’s discussion of the seven factors set forth by
this Court to allow an award of attorney’s fees as punitive damages. The district court did
not abuse its discretion in awarding punitive damages.
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The Contract
[¶33] Mr. Cook argues next that there was a contract and that it was unambiguous and
controlling. We agree but come to our conclusion in a dissimilar way than Mr. Cook.
[¶34] The district court said the following about the contract:
2. As more specifically outlined in the findings of fact, this
Court concludes that a contract was entered into for the sale
of Plaintiff’s shares in Northern considering the e-mails in
Exhibits 45, 46, and 60, the representations that Defendant
Cook made state regulators that they, Plaintiff and he had an
agreement and the representation that “everything she
wanted” was in the Agreement. The evidence in this case, as
described in the findings of fact, clearly shows there was an
offer, acceptance, and consideration and that the Parties
intended to enter into a contract.
[¶35] We agree that the district court found a contract existed. However, instead of the
written Share Purchase Agreement, the district court’s findings of facts further explain
what it found to be the parties’ Agreement:
53. The basic terms of the Agreement [ … ] provide for
payment terms of $175,000.00 to be paid at closing by
Defendants, with three (3) annual payments on the
anniversary dates of the signing of the Agreement in the
amount of 3% of net income of Northern or $15,000.00
whichever is greater. This would net Plaintiff $220,000.00,
not the $247,000.00 that she last communicated to
Defendants she required for the purchase of her business.
Although Plaintiff did not read the Agreement required for
the purchase of her business. Although Plaintiff did not read
the Agreement as put in front of her on June 8, 2011 the
circumstances are such that the Court believes she had reason
to and did rely on the representations of this ethical and
responsible businessman. The Court concludes that there was
a meeting of the minds as to the payment terms. They are the
terms last communicated by Plaintiff to Defendant Cook on
March 23, 2011 as shown in Exhibit 45 and 60. That is what
Plaintiff believed when Defendant Cook said on June 8, 2011,
that the Agreement has “everything you wanted.” She relied
on that. In reliance on that she turned the office over to
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Defendant Cook, gave him her keys, passwords, and the
proprietary documents, manuals, and other papers necessary
to maintain certification.
54. There was no meeting of the minds as to Defendant Cook
and Plaintiff over any warranty provisions, exhibits or other
terms.
Stated another way, the district court found an oral agreement between the parties.
[¶36] Despite the district court’s clear ruling, Mr. Cook asserts that it “rewrote the
purchase price term of the written contract” and effected a reformation of the contract.
Mr. Cook misinterprets the district court’s ruling. The district court indicates in its
findings that there was a contract, and the district court found a meeting of the minds
through various communications between the parties. However, the contract that existed
is not represented by the agreement, because of the fraudulent behavior by Cook. It is
clear from the district court’s judgment that it did not consider the agreement as the
contract – rather, the parties did contract, but through prior communications.
[¶37] We turn to whether the district court’s finding that a contract, in the form of an
oral agreement, existed is supported by the record. The district court stated in its
Conclusions of Law:
2. As more specifically outlined in the findings of fact, this
Court concludes that a contract was entered into for the sale
of Plaintiff’s shares in Northern considering the e-mails in
Exhibits 45, 46, and 60, the representations that Defendant
Cook made [to] state regulators that they, Plaintiff and he had
an agreement and the representation that “everything she
wanted” was in the Agreement. The evidence in this case, as
described in the findings of fact, clearly shows there was an
offer, acceptance, and consideration, and that the Parities
intended to enter into a contract.
[¶38] Our case law identifies the requisites of a contract.
“An offer, acceptance, and consideration are the basic
elements of a contract.” Bouwens v. Centrilift, 974 P.2d 941,
946 (Wyo.1999) (quoting Miller v. Miller, 664 P.2d 39, 40
(Wyo.1983)). There must be mutual assent to the same terms.
Bouwens, 974 P.2d at 946. The contracting process is usually
straightforward. One party makes a manifestation of assent,
called an offer, to another; the latter then makes a
18
manifestation of assent, called an acceptance, to the former. Id.
“Whether an oral contract exists, the terms and conditions of
the oral contract and the intent of the parties are generally
questions of fact.” Wilder v. Cody Country Chamber of
Commerce, 868 P.2d 211, 218 (Wyo.1994). Only when the
offer, the terms of the offer, and the unconditional acceptance
of the offer are shown without any conflict in the evidence
does the interpretation of the contract become a question of
law for the court. Id.; Engle v. First Nat’l Bank of Chugwater,
590 P.2d 826, 830 (Wyo.1979).
Roussalis v. Wyoming Med. Ctr., Inc., 4 P.3d 209, 249-50 (Wyo. 2000). “An agreement
to make a written contract where the terms are mutually understood and agreed on in all
respects is as binding as the written contract would be if it had been executed.” Robert
W. Anderson Housewrecking & Excavating v. Board of Trustees, 681 P.2d 1326, 1331
(1984).
[¶39] We agree with the district court that an oral contract existed in this case. At the
parties’ initial meeting on February 23, 2011, Mr. Cook stated to Ms. Landerman that he
had the resources to pay $247,500, with $175,000 at closing. Ms. Landerman clarified
the payment terms in an e-mail to Mr. Cook on March 25, 2011. Mr. Cook replied to the
e-mail without disputing or objecting to the price. Following this e-mail, Mr. Cook
participated in announcing the transfer in ownership, including assuring state regulatory
officials of his intent to purchase Northern. He assured the regulatory officials that the
parties made a deal, and even paid Ms. Landerman $25,000 in earnest money prior to
closing, further demonstrating the existence of an oral contract. The evidence proved
that the parties established an agreed upon price. In reliance on Mr. Cook’s ensuing
actions and statements, there was a meeting of the minds as to the terms of the
Agreement. Through Mr. Cook’s e-mails and responses back to Ms. Landerman, the
“deal” proceeded and Mr. Cook obtained financing. Both parties indicated to proper state
agencies that Mr. Cook was buying the business. This evidence was sufficient to establish
all of the requisite elements of a contract—offer, acceptance, and consideration.
[¶40] We have expressed on many occasions that public policy does not favor the
forfeiture of contract rights. (See Wyoming Realty Co. v. Cook, 872 P.2d 551, 554 (Wyo.
1994); Gray v. Stratton Real Estate, 2001 WY 125, ¶¶ 9-10, 36 P.3d 1127 (Wyo.2001)).
Because we are especially conscious of parties’ freedom to contract, we do not disregard
the written contract lightly. Here, we do so only because Mr. Cook fraudulently induced
Ms. Landerman to sign the document. We are of the same opinion as the Supreme Court
of Idaho:
While normally the terms of a written contract
will control, Idaho law firmly allows that “[f]raud in
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the inducement is always admissible to show that
representations by one party were a material part of the
bargain.” “[A]greements and communications prior to
or contemporaneous with the adoption of a writing are
admissible in evidence to establish fraud.” Fraud
vitiates the specific terms of the agreement and can
provide a basis for demonstrating that the parties
agreed to something apart from or in addition to the
written documents.
Aspiazu v. Mortimer, 139 Idaho 548, 82 P.3d 830, 833 (Idaho 2003) (internal citations
omitted). Mr. Cook committed fraudulent inducement by pressuring Ms. Landerman to
sign the contract while preventing her from reading it. We choose to disregard the
written document in this instance because fraud was clearly present.
[¶41] As a peripheral argument, Mr. Cook suggests that reformation of the contract took
place. However, Mr. Cook’s argument misunderstands the application of reformation
and its root meaning. Reformation is an equitable remedy available in cases where a
mistake in the drafting of the written contract makes the writing convey the intent or
meaning of neither party to the contract. For reformation to be available there must be
clear and convincing evidence of the following elements: (1) a meeting of the minds—a
mutual understanding between the parties—prior to the time a writing is entered into, (2)
a written contract, or agreement, or deed (3) which does not conform to the
understanding, by reason of mutual mistake. Ohio Cas. Ins. Co. v. W.N. McMurry
Constr. Co., 2010 WY 57, ¶ 15, 230 P.3d 312, 320 (Wyo. 2010). There was no mutual
mistake in this instance. The foregoing discussion bears that out in full.
Cumulative Error
[¶42] In his last issue, Mr. Cook claims cumulative error. He argues that “a review of
the case shows that there are various errors which, when viewed cumulatively with the
other previous points in this brief, prejudiced the Defendants and deprived them of a fair
trial.” In describing the errors, Mr. Cook states, “…the trial was a never ending series of
leading questions from Ms. Landerman’s lawyer. The witnesses were not properly
questioned and the evidence was not properly adduced. The judgment specifically quotes
a variety of statements from the testimony, most of which would have been the lawyer’s
statements[.]” Mr. Cook also lists the following as error: striking of affirmative defenses,
incorrect application of the law as to the motion to withdraw the response to admissions,
participation of the judge in the proceedings, incorrect application of the presumption
regarding missing witnesses, evidence regarding the loan application and Mr. Cook’s
financing efforts should not have been admitted, and incorrect law was applied regarding
interest and cost award.
20
[¶43] About cumulative error we have said,
“The purpose of evaluating for cumulative error is ‘to
address whether the cumulative effect of two or more
individually harmless errors has the potential to prejudice the
defendant to the same extent as a single reversible error.’”
Guy v. State, 2008 WY 56, ¶ 45, 184 P.3d 687, 701
(Wyo.2008) (citations omitted). Only those matters that are
considered error are evaluated under our cumulative error
analysis. Id. “We will reverse . . . only when ‘the accumulated
effect [of the errors] constitutes prejudice and the conduct of
the trial is other than fair and impartial.’” Id. (citations
omitted).
SAS v. Dep’t of Family Servs. (In re AGS), 2014 WY 143, ¶ 32 , 337 P.3d 470, 480
(Wyo. 2014).
[¶44] We wholly reject Mr. Cook’s argument. Again, we typically do not address issues
raised for the first time on appeal, unless they are fundamental or jurisdictional in nature.
See, e.g., Anderson v. Bd. of County Comm’rs, 2009 WY 122, ¶ 15, 217 P.3d 401, 405
(Wyo. 2009). Furthermore, Mr. Cook provides no cogent argument or citation of
pertinent authority to support his claims on appeal. J & T Properties, LLC v. Gallagher
(In re Establishment of a Private Roadway to Real Prop.), 2011 WY 112, ¶ 23, 256 P.3d
522, 527 (Wyo. 2011).
W.R.A.P. 10.05 Motion by Appellees
[¶45] On June 1, 2015, Ms. Landerman filed a “Motion and Memorandum for
Certification of There Being No Reasonable Grounds for Appeal and for Award of Fees
and Costs under W.R.A.P. 10.05.” She argues that there was no reasonable cause for this
appeal and asks this Court to award fees and costs pursuant to W.R.A.P. 10.05 and deem
this appeal frivolous. She argues that Mr. Cook violated the Wyoming Rules of
Appellate procedure in a myriad of ways, including lack of cogent argument and lack of
citation to pertinent authority and that many of Cook’s issues are raised for the first time
on appeal.
[¶46] We have said
that this Court typically does not impose sanctions when an
appeal challenges a district court’s discretionary ruling.
Montoya v. Navarette-Montoya, 2005 WY 161, ¶ 9, 125
P.3d 265, 269 (Wyo.2005); Russell v. Russell, 948 P.2d
1351, 1356 (Wyo.1997). It is true that, under rare
21
circumstances, this Court will award sanctions, but only when
the appeal is so lacking in merit it results in an obvious waste
of judicial resources, or when rule violations are particularly
egregious. See, e.g., Osborn v. Kilts, 2006 WY 142, ¶ 16, 145
P.3d 1264, 1268 (Wyo.2006); Montoya, ¶ 9, 125 P.3d at
269; Welch v. Welch, 2003 WY 168, ¶ 13, 81 P.3d 937, 940
(Wyo.2003).
Pond v. Pond, 2009 WY 134, ¶ 15, 218 P.3d 650, 653-654 (Wyo. 2009).
[¶47] While there are clear issues with Mr. Cook’s brief, his arguments therein, and his
compliance with the rules, we nevertheless deny Ms. Landerman’s motion. We are not
persuaded that the appeal was altogether frivolous or so egregious as to merit sanctions.
CONCLUSION
[¶48] We affirm the district court.
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