James F. Crouch Melisa M. Crouch and Crouch Revocable Trust Dated August 17, 2016 v. Kerry Cooper Jeanie Cooper and Dace Cooper ( 2024 )

THE SUPREME COURT, STATE OF WYOMING
2024 WY 98APRIL TERM, A.D. 2024
September 13, 2024
JAMES F. CROUCH; MELISA M.
CROUCH; and CROUCH REVOCABLE
TRUST dated August 17, 2016,
Appellants
(Defendants),
S-23-0283
v.
KERRY COOPER; JEANIE COOPER; and
DACE COOPER,
Appellees
(Plaintiffs).
Appeal from the District Court of Fremont County
The Honorable Jason M. Conder, Judge
Representing Appellant:
Joel M. Vincent and Alexandria G. Zafonte of Vincent & Zafonte, LLC, Riverton,
Wyoming. Argument by Ms. Zafonte.
Representing Appellee:
Vance Countryman of Countryman Law, P.C., Lander, Wyoming. Argument by Mr.
Countryman.
Before FOX, C.J., and BOOMGAARDEN, GRAY, FENN, and JAROSH, JJ.
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.
FENN, Justice.
[¶1] Kerry and Jeanie Cooper (the Coopers) entered into a five-year lease agreement
(Lease) with James and Melisa Crouch (the Crouches). The Crouches agreed to lease their
farmland to the Coopers to pasture cattle and grow crops for feed. More than a year before
it was set to expire, the Crouches terminated the Lease. The Coopers filed suit against the
Crouches for breach of contract. The district court found the Crouches breached the Lease
by failing to provide the Coopers with adequate notice of default and an opportunity to
cure, as required under the terms of the Lease. The district court awarded the Coopers
$153,772.05 in damages. On appeal, the Crouches claim they provided the required notice
and an opportunity to cure, and they challenge the district court’s award of damages. We
affirm but remand with instructions for the district court to correct the damages award.
ISSUES
[¶2] The Crouches raise five issues on appeal. We re-phrase them as the following four
issues:
I. Did the district court err when it found the Crouches
breached the Lease by failing to provide the Coopers with
adequate notice and an opportunity to cure as required
under the terms of the Lease?
II. Did the district court err when it considered the Crouches’
first-to-breach affirmative defense and found the Coopers
did not materially breach the Lease?
III. Did the district court commit clear error when it awarded
the Coopers $153,772.05 in damages?
IV. Did the district court commit clear error when it reduced
the Coopers’ award by $24,650.35 for their failure to
mitigate damages?
FACTS
[¶3] In February 2017, James and Melisa Crouch, co-trustees and successors of the
Crouch Revocable Trust, entered into a five-year lease agreement with Kerry and Jeanie
Cooper,1 effective from February 15, 2017, to February 15, 2022. The Crouches agreed to
1
Dace Cooper is listed as a tenant on the Lease. Dace is Jeanie and Kerry Cooper’s son. Although he is
listed as a tenant, the copy of the Lease does not contain his signature, and he was not included on the
1
lease 184 irrigated acres of farmland to the Coopers for grazing cattle and growing hay,
corn, barley, oats, or other agricultural products to feed the cattle at a rate of $18,400.00
each year. Mr. Crouch drafted the Lease and included clauses to ensure the Coopers
properly cared for his property and equipment. In particular, the Lease provided:
4. Tenant agrees to employ standard best management
practices. The lease shall not be considered to be in default if
weather or other circumstances prevent timely practices or
harvesting. This includes fertilizing the irrigated acres as
determined appropriate by the tenant, maintaining and filling
the pivot tracks as needed, and replacing and repairing the
gated pipe to the condition as at the start of the lease. Tenant
may sub-lease the aftermath if so desired, but not pasture large
horse herds such as the Mantle horses.
5. Tenants are to pu[m]p out buried pipelines and winterize the
pumps and irrigation equipment at the end of the irrigation
season. Landowner agrees to pay all taxes and irrigation water
fees on the farms. Landowner agrees to provide all materials
for fence repairs if tenant supplies labor for the repairs. Owner
will have new bearings put in Portlock pivot pump and have
pump electric armature cooked at Cowboy Electric in Mills,
Wyoming, before the start of the irrigation season. Owner will
provide one spare pivot tire and wheel and one remanufactured
planetary drive for the TL pivots. Two five gallon buckets of
pivot oil will be provided for the pivots by the landowner at
start of the first season.
6. Prohibited uses: None.
7. The terms of the lease may be amended by mutual consent
of all parties as needed.
8. Default of any of the above provisions by either party may
be cured upon written notice by the other party within 90 days
of receipt of such notice. . . .
[¶4] The Coopers pastured approximately 300 head of cattle on the leased property from
mid-November to mid-February. In mid-February, the Coopers moved the cattle to other
amendment to the Lease. Accordingly, when we refer to the Coopers, we are just referring to Jeanie and
Kerry Cooper. We will refer to Dace Cooper by his first name and, when necessary, the first name of the
other parties to avoid any confusion.
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property where they stayed until May 8th. To feed their cattle, the Coopers paid for and
planted seed to grow barley and alfalfa hay on the leased property. The Coopers fed their
cattle approximately 600 bales of hay each year, which was grown on the leased property.
[¶5] The Coopers gave their son, Dace, any hay produced in excess of the 600 bales. The
Coopers gave Dace this excess hay to sell in exchange for his labor and the use of his
farming equipment on the leased property. Dace provided labor and used his equipment to
plow the fields, cut and bale the hay, and help feed his parents’ cattle. Initially, the Coopers
did not produce the necessary 600 bales of hay to feed their cattle, so Dace did not receive
any excess hay for the first couple of years. However, by the third and fourth year, the
Coopers produced more than 600 bales, and Dace received and sold the excess hay.
[¶6] During the early part of the Lease, the Coopers made improvements to the leased
land. These improvements included leveling the fields and re-digging, extending and
changing the direction of the corrugated fields to solve problems with drainage,
accumulation of water, and wastewater. The Coopers used a corrugate farming technique
to form or shape the field into alternating ridges and grooves to direct the water to run
straight across the field or to alter the direction of the flow of water to other areas.
Corrugate, Merriam Webster, https://www.merriam-webster.com/dictionary/corrugate
(last visited August 7, 2024). To help with the water issues, they removed one ditch and
dug out and cleaned the remaining ditches. Dace also moved an irrigation pipe to get water
to the parts of the field that were not getting any irrigation.
[¶7] In 2018, the parties amended the Lease by adding an additional 22.1 acres to the
land the Coopers farmed, increasing the Coopers’ payment to $20,610.00, and adding
additional conditions. James Crouch drafted the amendment and added the following
conditions:
Lease Conditions:
The two center pivots on the farms are both of TL manufacture
and operate utilizing a hydraulic drive system. The pivots need
to be maintained in good working order and may not be
modified to electric drive. The farms have cement and
concrete lined irrigation ditches that need to be maintained and
preserved. At this time we see no reason to change or modify
these ditches as they are at present. Any significant change to
fencing, irrigating, or the use or location of gated pipe needs
approval by the landowner. Fence removal or new fencing
location needs to be defined on a map or aerial photo with fence
to be removed as well as new fence to be constructed illustrated
before the work is approved and started. Any lands that the
tenants chose to irrigate that does not have adjudicated water
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rights does so at their own risk and is responsible for any
consequences that may occur.
[¶8] In November 2020, the Crouches’ attorney sent the Coopers and Dace a letter stating
the Crouches were terminating the Lease, effective February 15, 2021. The Crouches
indicated they were terminating the Lease because the Coopers breached “the most
essential term[] of the lease” by failing to “employ standard best management practices.”
They alleged in their letter:
You have failed to employ such practices as evidenced by your
failure to apply irrigation water regularly and adequately to
those lands within the lease premises which have adjudicated
water rights. Ultimately failing to apply irrigation water by
way of a center pivot system to one of the fields for the last
twenty days of the 2020 irrigation season. You have furthered
failed to meet the standard by the placing irrigation pipe on
areas contiguous with lands adjudicated as having irrigation
rights, but which have not been adjudicated as having such
rights. Placing pipe on such lands and delivering water to them
is in violation of the federal statutes which provide for Midvale
delivering water to members of the Irrigation District. In
addition, you have not applied fertilizer or herbicide in accord
with best management practices. Finally, your failure to
properly repair sprinkler machinery in a timely manner has led
to the inability to properly irrigate and farm the property and is
another violation of best farming practice.
The Crouches indicated that should the Coopers or Dace “have questions concerning this
matter [to] direct them to [their attorney].”
[¶9] Kerry Cooper called the Crouches’ attorney and explained they “needed to work
something out [for the Coopers] to keep [the Lease] the [last] year, because with cows
[they] are planning a year in advance for feed and pasture and everything, and at the
minimum, a lot of times [they] are trying to plan two years in advance.” Kerry explained
to the attorney it was short notice to terminate the Lease because it would be impossible to
find anything else for feed and pasture for their cattle. In response, the attorney told Kerry
to consult with their own attorney. The Coopers hired an attorney and responded by letter
stating they found nothing in the November 2020 letter that justified terminating the Lease.
They also enclosed the lease payment for the first half of 2021.
[¶10] The Crouches responded via a letter on February 12, 2021, stating they gave the
Coopers “ninety days advance notice of their termination of the lease which is effective 2-
15-2021.” They returned the Coopers’ payment, and their counsel stated: “As noted in my
4
earlier letter to the Coopers terminating the lease, they are permitted to leave their cattle on
the pasture until March 31, 2021.”
[¶11] After the Crouches terminated the Lease, the Coopers found a small pasture for their
cattle and purchased hay, straw, cornstalk, and supplements to feed their cattle. The
Coopers purchased the feed and supplements because they no longer had their crop from
the Crouches’ property to rely on for feed. The Crouches entered into a new lease
agreement with a different tenant in the spring of 2021. That same summer, the new tenant
and the Crouches farmed the alfalfa fields the Coopers had newly planted and sold the hay.
[¶12] On August 30, 2021, the Coopers and Dace filed suit against the Crouches for breach
of contract seeking damages for the cost of purchasing hay to feed their cattle and for the
lost income from selling the excess hay. The Crouches argued the Coopers defaulted on
the Lease, failed to cure their default after they were given notice on November 11, 2020,
and failed to mitigate their damages. The district court held a three-day bench trial
beginning on June 28, 2023, and found the Crouches breached the Lease “by terminating
the agreement without both giving written notice and providing 90 days to cure any
deficiency.” The district court found the Coopers lost the use of the land to pasture and
feed their cattle, and that they were unable to grow hay during the summer of 2021 to feed
their cattle and sell for a profit because of the Crouches’ breach. It awarded the Coopers
damages in the amount of $153,772.05. The Crouches timely appealed.
STANDARD OF REVIEW
[¶13] We apply the following standard when we review a district court’s factual findings
following 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
reweighing 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. In
considering a trial court’s factual findings, 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. We do not substitute ourselves for the trial
court as a finder of facts; instead, we defer to those findings
5
unless they are unsupported by the record or erroneous as a
matter of law.
Koch v. Gray, 2024 WY 41, ¶ 10, 546 P.3d 1095, 1099 (Wyo. 2024) (quoting Testolin v.
Thirty-One Bar Ranch Co., 2024 WY 6, ¶ 15, 541 P.3d 455, 460 (Wyo. 2024)). The
interpretation of a lease agreement presents a question of law which we review de novo.
PNS Stores, Inc. v. Cap. City Props., LLC, 2022 WY 101, ¶ 20, 515 P.3d 606, 611 (Wyo.
2022) (quoting Larson v. Burton Constr., Inc., 2018 WY 74, ¶ 16, 421 P.3d 538, 544 (Wyo.
2018)).
DISCUSSION
[¶14] The district court awarded damages to the Coopers and Dace in the amount of
$153,772.05 because the Crouches failed to provide the Coopers with adequate notice of
default and an opportunity to cure. On appeal, the Crouches claim they provided the
required notice and an opportunity to cure, and the district court erred by not considering
certain evidence when it ruled on their first-to-breach affirmative defense. They also
challenge the district court’s award of damages. We address each argument in turn.
I. The Crouches failed to give the Coopers the required written notice of default
and an opportunity to cure any alleged breach as required by the Lease.
[¶15] The district court held the Crouches breached the Lease “by terminating the
agreement without both giving written notice and providing [the Coopers with] 90 days to
cure any deficiency.” The Crouches argue the district court erred because the letter they
sent in November 2020 provided the Coopers “with over 90 days to cure their defaults.”
They argue the November 2020 letter coupled with the Lease provided the Coopers with
the requisite notice and an opportunity to cure.
[¶16] Our ultimate goal when interpreting the Lease is to determine the intent of the parties
to the document. W. Am. Ins. Co. v. Black Dog Consulting Inc., 2023 WY 109, ¶ 20, 538
P.3d 973, 979 (Wyo. 2023). “When the language of the lease is clear and unambiguous,
we look only to its four corners to determine the parties’ intent.” Id. We read the Lease as
a whole, with the objective of finding a reasonable construction, which does not render any
provision meaningless. Scherer, II v. Laramie Reg’l Airport Bd., 2010 WY 105, ¶ 11, 236
P.3d 996, 1002 (Wyo. 2010) (quoting Brown v. Johnston, 2004 WY 17, ¶¶ 23, 25, 85 P.3d
422, 429–30 (Wyo. 2004)). We give the language of the Lease the “meaning which the
language would convey to reasonable persons at the time and place of its use.” N. Silo Res.,
LLC v. Deselms, 2022 WY 116A, ¶ 15, 518 P.3d 1074, 1081 (Wyo. 2022) (citing BNSF
Ry. Co. v. Box Creek Min. Ltd. P’ship, 2018 WY 67, ¶ 20, 420 P.3d 161, 166 (Wyo. 2018)).
[¶17] The notice requirement in paragraph eight of the Lease provides: “[d]efault of any
of the above provisions by either party may be cured upon written notice by the other party
6
within 90 days of receipt of such notice.” The notice requirement is clear and unambiguous
and must be enforced as written. See Kinstler v. RTB S. Greeley, Ltd. LLC, 2007 WY 98,
¶ 8, 160 P.3d 1125, 1128 (Wyo. 2007). Pursuant to the terms of the Lease, the Crouches
were required to provide the Coopers with written notice of any alleged default and an
opportunity to cure any default within 90 days of receipt of the written notice. See id.[¶18] The November 2020 letter the Crouches’ attorney sent to the Coopers and Dace
stated: “This letter will serve to inform that the Lease will be terminated effective February
15, 2021, however, you may leave your cattle on the pasture until March 31, 2021.” It
informed the Coopers “[t]he termination of the lease is the result of [their] breach of the
most essential terms of the lease that is, that [they] ‘employ standard best management
practices.’” The November 2020 letter informed the Coopers what conduct the Crouches
thought violated “standard best management practices,” but it never provided the Coopers
with any meaningful opportunity to cure those alleged violations prior to terminating the
Lease. Instead, the November 2020 letter informed the Coopers they had to vacate the
leased property by a certain date.
[¶19] Based on this November 2020 letter, the district court found the Crouches never
gave the Coopers an opportunity to cure any alleged breach. The Crouches argue that
although the November 2020 letter does not explicitly give the Coopers 90 days to cure,
the underlying contract notified the Coopers of their ability to cure. Giving the Coopers
every reasonable inference, the district court’s finding is supported by the record. See Koch,
2024 WY 41, ¶ 10, 546 P.3d at 1099 (quoting Testolin, 2024 WY 6, ¶ 15, 541 P.3d at 460).
[¶20] The Coopers interpreted the November 2020 letter to mean they “were being kicked
off” the Crouches’ farm. In an attempt to remedy the alleged default, Kerry contacted the
Crouches’ attorney, as directed by the letter, and attempted to negotiate keeping the Lease
for the last year to ensure he had feed for his cattle. Instead of providing the Coopers with
an opportunity to cure the alleged default, the Crouches referred the Coopers to their
attorney. The Coopers’ attorney sent correspondence to the Crouches’ attorney along with
the first installment of the 2021 lease payment opining there was nothing in the November
2020 letter “that justifies termination of the lease.” In response, the Crouches’ attorney
returned the payment and sent a letter stating:
Mr. and Mrs. Crouch gave Mr. and Mrs. Cooper ninety days
advance notice of their termination of the lease which is
effective 2-15-2021. Therefore, Mr. and Mrs. Crouch will not
accept the check from Mr. and Mr[s]. Cooper, and I have
enclosed the same with this letter. As noted in my earlier letter
to Coopers terminating the lease, they are permitted to leave
their cattle on the pasture until March 31, 2021.
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[¶21] The purpose of the notice requirement in the Lease was to inform the Coopers of
any alleged default, why the Crouches were taking such action, and how the Coopers might
remedy the alleged default within 90 days. See Ahearn v. Hollon, 2002 WY 125, ¶ 18, 53
P.3d 87, 91 (Wyo. 2002); Kost v. First Nat’l Bank of Greybull, 684 P.2d 819, 823 (Wyo.
1984). A notice of default should be detailed enough to inform the defaulting party how
to cure any alleged default and remedy the problem. Ahearn, ¶¶ 18–22, 53 P.3d at 91–92.
If a party to the contract is unaware of how to correct an alleged default, they are forced to
engage in a “meaningless guessing game” at the discretion of the other party to the contract.
Gallagher v. Borden, Inc., 616 N.E.2d 577, 579 (Ohio Ct. App. 1992). The more detailed
the notice of default, the more likely the defaulting party is provided a reasonable and
meaningful opportunity to cure. See generally Lindner v. Meadow Gold Dairies, Inc., 515
F. Supp. 2d 1166, 1173 (D. Haw. 2007) (holding the notice of default provision in the lease
required the lessor to provide notice specifying the performance defects and giving the
lessee a meaningful opportunity to cure before terminating the lease); see also Deffenbaugh
Indus., Inc. v. Unified Gov’t of Wyandotte Cnty., Kansas City, Kansas, No. 22-3147, 2023
WL 4363439, at *19–20 (10th Cir. July 6, 2023) (finding notice to cure provisions contain
an implicit requirement to give the lessee enough detail to cure the alleged default).
[¶22] The November 2020 letter failed to provide the Coopers with any meaningful
opportunity to cure the alleged default. Instead, the November 2020 letter specifically
terminated the Lease without any possibility of curing the alleged default. Additionally,
the Crouches rejected the Coopers’ initial payment for the 2021 farming season. The
Crouches’ letters and actions left the Coopers engaging in a meaningless guessing game as
to how they could cure any alleged default, and instead led them to believe they were being
kicked off the property and needed to obtain alternative feed and pasture for their cattle.
Based on these circumstances, the district court did not err when it found the Crouches
failed to comply with the notice of default and right to cure requirements under the Lease.
II. The Crouches cannot rely on the first-to-breach affirmative defense to excuse
their failure to provide the required notice and an opportunity to cure.
[¶23] In their second issue, the Crouches raise a first-to-breach affirmative defense, which
generally allows one party’s material breach to excuse the other party’s performance under
the agreement. Koch, 2024 WY 41, ¶ 12, 546 P.3d at 1100 (quoting Maverick Benefit
Advisors, LLC v. Bostrom, 2016 WY 96, ¶¶ 14–15, 382 P.3d 753, 758 (Wyo. 2016)). The
Crouches claim “[t]he Coopers materially breached the lease by failing to employ standard
best management practices as defined by the contract, the parties’ dealings, and the industry
standard, and therefore, [they] did not have to provide [the Coopers] with the exact
language saying they had 90 days to cure in the notice of default.” The Crouches argue the
district court should have considered extrinsic evidence and determined the Coopers
materially breached the Lease by failing to use “standard best management practices.”
They claim if the district court had considered the evidence, it would have found the
8
Coopers materially breached the Lease, which excused them from providing the requisite
notice. The Crouches’ argument is misplaced.
[¶24] “When a party fails to provide notice of a material breach, if required by the terms
of the lease, reliance on that breach to excuse contractual performance is improper.”
Kinstler, 2007 WY 98, ¶ 8, 160 P.3d at 1128. In Kinstler, the tenant claimed he was
excused from paying rent under the terms of the lease because the landlord materially
breached the lease by failing to provide the required landscaping. Id. at ¶ 7, 160 P.3d at
1127. The district court found the tenant could not rely on any alleged breach by the
landowner to excuse his performance because he never provided written notice to the
landlord as required under the terms of the lease. Id. We upheld the district court’s decision
and found the landlord’s material breach was irrelevant because the tenant failed to provide
the landlord with the requisite notice of default. Id. at ¶¶ 8–9, 160 P.3d at 1128. We found
whether or not the landlord’s alleged breach of the lease was material, the tenant could not
rely on it “because he failed to comply with the [l]ease’s notice requirement.” Id. at ¶ 9,
160 P.3d at 1128.
[¶25] Like the tenant in Kinstler, the Crouches failed to comply with the Lease’s notice
requirements. The Crouches cannot rely on any alleged material breach by the Coopers to
excuse their failure to provide the Coopers with adequate notice and an opportunity to cure.
Id. at ¶¶ 8–9, 160 P.3d at 1128. Accordingly, issues relating to consideration of extrinsic
evidence regarding the Crouches’ alleged first-to-breach theories are irrelevant, and do not
merit further discussion.
III. The damages awarded by the district court were foreseeable and reasonably
proven by the Coopers. However, the district court clearly erred when it
accounted for the costs of the pasture leases twice.
[¶26] In an action for breach of contract, the legal remedy is an award of damages
designed to place the plaintiff in the same position as if the contract had been fully
performed, less proper deductions. Hanft v. City of Laramie, 2021 WY 52, ¶ 42, 485 P.3d
369, 383 (Wyo. 2021); Legacy Builders, LLC v. Andrews, 2014 WY 103, ¶ 17, 335 P.3d
1063, 1068 (Wyo. 2014). “Damages for a breach of contract may include recovery for
incidental or consequential loss caused by the breach, as long as such damages are a
foreseeable result of the breach.” Legacy Builders, ¶ 36, 335 P.3d at 1072. The Coopers
had “the burden of producing evidence to prove [their] damages[.]” Summit Constr. v.
Koontz, 2024 WY 68, ¶ 26, 550 P.3d 106, 114 (Wyo. 2024) (quoting Gill v. Lockhart, 2022
WY 87, ¶ 34, 512 P.3d 971, 981 (Wyo. 2022)).
[¶27] The Crouches claim the Coopers failed to provide sufficient evidence to support
their damages. Specifically, they argue the damages awarded to the Coopers should have
been for their lost profits, if any, and not the amounts they expended for feed or lost hay
sales. They also claim the costs the Coopers sought were not supported by documentation.
9
[¶28] “Whether the district court employed the proper methodology or legal standard to
calculate the damages award is an issue of law, which we review de novo.” Morningstar v.
Robison, 2023 WY 28, ¶ 26, 527 P.3d 241, 249 (Wyo. 2023) (quoting Halling v.
Yovanovich, 2017 WY 28, ¶ 28, 391 P.3d 611, 621 (Wyo. 2017)). The district court’s
damages calculation is a question of fact, which we will only reverse if the findings are
clearly erroneous. Halling, ¶ 28, 391 P.3d at 621; Ruby Drilling Co., Inc. v. Duncan Oil
Co., Inc., 2002 WY 85, ¶ 29, 47 P.3d 964, 973 (Wyo. 2002).
[¶29] The Coopers entered into the Lease with the Crouches for the purpose of growing
hay and grazing cattle on the Crouches’ property. The five-year term of the Coopers’ Lease
with the Crouches was set to expire on February 15, 2022. Each year the Coopers would
pasture their cattle on the Crouches’ property from approximately mid-November until
mid-February where their cattle would forage and eat the hay grown there. The Coopers
would then move the cattle to other property from approximately mid-February to May
8th, where they would feed their cattle the hay they produced on the Crouches’ property.
Dace would provide labor and the use of his equipment to farm the Crouches’ property,
and in exchange he would receive any excess hay over 600 bales.
[¶30] Because the Crouches terminated the Lease early and the Coopers could not grow
hay during the summer of 2021, the district court found the Coopers were required to obtain
feed for their cattle from February 15, 2022, to May 8, 2022. The district court also found
the Coopers were unable to use the Crouch property for pasture from November 1, 2021,
to February 15, 2022, which forced them to purchase other feed and supplements. The
district court determined the Coopers incurred trucking costs to haul the purchased feed
along with costs to lease other property for pasture. It held the Coopers incurred costs for
feed, supplements, trucking, and replacement pasture as a result of the loss of the Lease in
the amount of $178,676.05. However, because Dace sold some leftover hay after the lease
was terminated, the district court found the Coopers could have mitigated their damages
by using that hay, so it reduced their damages award by $24,650.35, the amount Dace
received from the sale of the hay. Finally, the district court reduced the damages awarded
by the expenses the Coopers avoided by no longer operating the Crouches’ property in
2021, which Kerry testified was $28,000.00. Combining the sale of hay anticipated for
2021 with the costs for feed, supplements, trucking and pasture, and then reducing that
amount by the anticipated 2021 expenses, the district court found the total amount of
damages the Coopers reasonably proved was $153,772.05. Below is a table depicting the
district court’s finding of the amount the Coopers would have avoided, as well as made
from the sale of hay, had the Lease been fully performed:
10
Damages Awarded
Costs for Feed $134,393.15
Trucking Costs $27,003.70
Pasture Lease $2,660.60
Supplements $14,618.60
Total Costs $178,676.05
Less Hay Sold After Termination $24,650.35
$154,025.70
Plus Excess Hay Anticipated for 2021 $27,746.35
$181,772.05
Less Anticipated Expenses for 2021 $28,000.00
TOTAL DAMAGES $153,772.05
[¶31] Although damages must be proven to a reasonable degree of certainty, “proof of
exact damages is not required.” WSP, Inc. v. Wyo. Steel Fabricators & Erectors, Inc., 2007
WY 80, ¶ 19, 158 P.3d 651, 655 (Wyo. 2007). Additionally, although lost profits are a
measure of damages, they are merely one possible measure. Id. at ¶ 21, 158 P.3d at 655.
Damages for the Crouches’ breach should compensate the Coopers for any loss in value,
plus any loss, including incidental or consequential loss, caused from the breach of the
Lease, less any cost they avoided by not having to perform under the Lease. G.C.I., Inc. v.
Haught, 7 P.3d 906, 911 (Wyo. 2000) (quoting JBC of Wyo. Corp. v. City of Cheyenne,
843 P.2d 1190, 1195 (Wyo.1992)).
[¶32] The damages awarded by the district court were reasonably foreseeable, and the
Coopers reasonably proved those damages. The Coopers supported the costs they
expended for feed, supplements, and pasture for the year they were unable to farm and
graze their cattle on the Crouches’ property with invoices, bills of lading, bank statements,
checks or duplicate checks. The Coopers also showed by a spreadsheet, marked as Exhibit
5, how they calculated the trucking costs and explained during Kerry’s testimony how the
trucking costs were calculated, including the costs for Dace’s labor to transport the hay.
[¶33] We have reviewed the evidence the Coopers submitted in support of their request
for damages, and while we find no clear error in the district court’s reliance on those
documents to calculate damages, or the methodology the district court used to arrive at its
damages calculation, we do find the district court erred by including in its award the costs
the Coopers expended on pasture leases twice. Our review of the Coopers’ spreadsheet
and all documents supporting the amounts they expended on feed, trucking, supplements
and pasture, reveals the district court’s award is $2,660.60 greater than the amount
supported by the record. This amount is the exact amount the Coopers expended on leasing
replacement pasture. The evidence before us indicates the district court not only accounted
for the costs of the replacement pasture separately, but it also included this amount in its
calculation of the costs for supplements. Below is a table of the calculations we arrive at
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by adding up the Coopers’ evidence supporting their costs for feed, supplements, trucking,
and pasture, then reducing that amount by the anticipated 2021 expenses, and accounting
for any anticipated hay sales for 2021.
Damages Awarded
Costs for Feed $ 134,393.15
Trucking Costs $ 27,003.70
Pasture Lease $ 2,660.60
Supplements $ 11,958.00
Total Costs $ 176,015.45
Less Hay Sold After Termination $ 24,650.35
$ 151,365.10
Plus Excess Hay Anticipated for 2021 $ 27,746.35
$ 179,111.45
Less Anticipated Expenses for 2021 $ 28,000.00
TOTAL DAMAGES BASED ON RECORD $ 151,111.45
District Court Damage Finding $ 153,772.05
Difference in Findings $ (2,660.60)
[¶34] Based on the evidence in the record, we are left with a firm conviction the district
court accounted for the costs of the pasture leases twice, and therefore we remand to the
district court with instructions to reduce its damages award by $2,660.60. See generally
Legacy Builders, 2014 WY 103, ¶¶ 38–39, 335 P.3d at 1072 (remanding a damages award
to the district court with instructions to reduce the award based on the evidence in the
record).
IV. The district court’s reduction of damages by $24,650.35 for the Coopers’ failure
to mitigate damages is supported by the record.
[¶35] In their final issue, the Crouches claim the district court’s damage award should be
further reduced by the amount of hay the Coopers sold sometime in the fall of 2020,
$2,340.00, as well as approximately $30,000 in trucking costs for a lease Dace willingly
gave up on another piece of property. “It is . . . well established that one who is injured by
the wrongful act of another must exercise reasonable care and diligence to minimize the
resulting damage.” Hacker Oil, Inc. v. Hacker, 2024 WY 3, ¶ 11, 540 P.3d 1187, 1189
(Wyo. 2024) (quoting Asbell Bros., Inc. v. Nash-Davis Mach. Co., 382 P.2d 57, 59 (Wyo.
1963)). The doctrine of mitigation of damages, sometimes called doctrine of avoidable
consequences, requires the injured party to use reasonable diligence and ordinary care to
attempt to minimize his damages after the breaching party inflicted injury. Id. at ¶ 12, 540
P.3d at 1189 (quoting UNC Teton Expl. Drilling, Inc. v. Peyton, 774 P.2d 584, 592 (Wyo.
1989)). Mitigation of damages “is an affirmative defense to reduce the amount of damages
a plaintiff is entitled to after liability has been found.” Id. at ¶ 13, 540 P.3d at 1190. While
the Coopers carried the initial burden of proving damages, it is the Crouches who must
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establish what they assert requires mitigation or reduction of damages. Legacy Builders,
2014 WY 103, ¶ 27, 335 P.3d at 1070.
[¶36] The Crouches allege the district court should have deducted from its calculation the
proceeds from the hay from the Crouches’ property that Dace sold in the fall of 2020, which
amounted to $2,340.00. The Crouches did not terminate the lease until November 11,
2020. The Crouches did not establish, nor do they point us to any evidence in the record,
establishing the Coopers sold this hay after the Crouches terminated the Lease. The
requirement to mitigate damages begins when the injury occurs and damages are
accumulating. Hacker Oil, 2024 WY 3, ¶ 13, 540 P.3d at 1190 (quoting Reed v. Aaacon
Auto Transp., Inc., 637 F.2d 1302, 1305 (10th Cir. 1981), overruled on other grounds by
Underwriters at Lloyds of London v. N. Am. Van Lines, 890 F.2d 1112 (10th Cir. 1989));
see also Deisch v. Jay, 790 P.2d 1273, 1278 (Wyo. 1990). The district court did not clearly
err when it declined to reduce its award of damages by the $2,340.00 for Dace’s hay sales
in the fall of 2020.
[¶37] During the same time the Coopers leased the Crouches’ property, Dace individually
leased a piece of property that he used to grow barley hay. Dace leased the property for
approximately 13 years, but in February or March 2021, he and the landowner mutually
agreed to terminate the lease. The Crouches claim the district court’s award of damages
should be reduced by $30,000.00 in trucking costs because Dace willingly gave up his lease
on this property after the Crouches terminated the Lease. They argue “Dace Cooper had a
duty to mitigate damages and try to provide as much hay as he could for [his parent’s]
cattle” because he knew his parents were losing the Lease with the Crouches. The evidence
in the record establishes that Dace never signed the Lease with the Crouches, nor did he
sign the amendment to the Lease. The Crouches never introduced Dace’s lease for the
separate property, nor did they present any evidence the Coopers ever purchased any hay
from that separate lease, the amount of hay that the lease produced, or the costs the Coopers
could have saved had they paid Dace for the hay on his other lease. “A court may not
resort to speculation or conjecture in determining the proper amount to award.” Summit
Constr., 2024 WY 68, ¶ 26, 550 P.3d at 114 (quoting Gill, 2022 WY 87, ¶ 39, 512 P.3d at
982). The Crouches failed to meet their burden of establishing the damages award should
have been reduced based on Dace mutually agreeing with a different landowner to end a
separate lease not associated with his parents’ cattle operation. Therefore, any mitigation
of damages would be speculative and improper. The district court did not err by declining
to reduce the damages award based on Dace’s decision to discontinue leasing a separate
property.
CONCLUSION
[¶38] The district court did not err when it found the Crouches breached the Lease by
failing to give the Coopers the required notice and a reasonable opportunity to cure any
alleged default. Because the Crouches failed to give adequate notice and an opportunity to
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cure, they cannot rely on the first-to-breach affirmative defense to excuse their failure to
comply with the notice requirement. The district court did not err in its method for
calculating damages, or by only reducing its damage award in the amount of $24,650.35
for the Coopers’ failure to mitigate. However, the record reveals the district court
accounted for the Coopers’ costs to lease replacement pasture twice. Therefore, we remand
to the district court with instructions to reduce its damages award by $2,660.60. We affirm
the district court’s decision in all other respects.
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