Skyco Resources, LLP, a Texas limited liability partnership v. Family Tree Corporation, a Wyoming corporation and JD4, LLC, a Delaware limited liability company

IN THE SUPREME COURT, STATE OF WYOMING
2022 WY 72APRIL TERM, A.D. 2022
June 16, 2022
SKYCO RESOURCES, LLP, a Texas
limited liability partnership,
Appellant
(Plaintiff),
v.
S-21-0161
FAMILY TREE CORPORATION, a
Wyoming corporation and JD4, LLC, a
Delaware limited liability company,
Appellees
(Defendants).
Appeal from the District Court of Laramie County
The Honorable Thomas T.C. Campbell, Judge
Representing Appellant:
Brandon L. Jensen, Budd-Falen Law Offices, LLC, Cheyenne, Wyoming.
Argument by Mr. Jensen.
Representing Appellees:
Lucas Buckley and Sean Larson, Hathaway & Kunz LLP, Cheyenne, Wyoming.
Argument by Mr. Larson.
Before FOX, C.J., and DAVIS*, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
GRAY, J., delivers the opinion of the Court; FOX, C.J., files a concurring in part and
dissenting in part opinion, in which BOOMGAARDEN, J., joins.
*Justice Davis retired from judicial office effective January 16, 2022, and, pursuant to Article 5, § 5 of the
Wyoming Constitution and Wyo. Stat. Ann. § 5-1-106(f) (LexisNexis 2021), he was reassigned to act on
this matter January 18, 2022.
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.
GRAY, Justice.
[¶1] Skyco Resources, LLP, entered into an agreement with Family Tree Corporation
and JD4, LLC, (collectively Family Tree) for the purchase of mineral interests owned by
Family Tree. Before closing, Skyco notified Family Tree that it was terminating the
agreement based on title encumbrances and demanded a return of its earnest money.
Family Tree refused because Skyco failed to comply with the agreement’s termination
provision. Skyco sued Family Tree for return of the earnest money, asserting claims of
breach of contract, breach of the covenant of good faith and fair dealing, conversion, and
fraud/intentional misrepresentation. The district court granted summary judgment to
Family Tree. We affirm in part and reverse in part.
ISSUES
[¶2] The dispositive issues are:
1. Whether the district court properly granted Family Tree
summary judgment on Skyco’s breach of contract and
conversion claims.
2. Whether the district court properly granted Family Tree
summary judgment on Skyco’s claim for breach of the
covenant of good faith and fair dealing.
3. Whether the economic loss rule barred Skyco’s
fraud/intentional misrepresentation claim.
FACTS
[¶3] In 2019, Family Tree enlisted a broker, Rob Arrowood, to assist in finding a buyer
for mineral interests it held in Laramie County, Wyoming. On October 16, 2019, Mr.
Arrowood provided information concerning those interests to Skyco’s vice president, R.
Brian Coker. Skyco wanted to purchase Family Tree’s mineral interests and develop the
minerals. The parties negotiated a purchase and sale agreement (PSA). Prior to its signing
of the PSA, Mr. Arrowood assured Skyco that Family Tree “held permits to drill for all of
the acreage to be included in the leasehold interest that was the subject of the transaction.”
Family Tree provided Skyco a spreadsheet which indicated less than 10% of the mineral
interests being purchased were subject to a drilling permit issued to third parties.
Thereafter, representatives of Family Tree signed the PSA on December 19, 2019, and
Skyco representatives signed on December 20.
[¶4] Pursuant to the PSA, Family Tree agreed to sell and Skyco agreed to purchase
13,056.68 leasehold acres for $13,709,514. The PSA provided that time was of the essence
1
in the agreement’s performance, and it required that closing be held on or before forty-five
days from the PSA’s full execution, which was February 3, 2020. It also required that
Skyco remit earnest money as follows:
(III) Earnest Money: Within ten (10) days from the
execution of this agreement Buyer agrees to pay Seller earnest
money in the amount of two percent (2%) of Total Purchase
Price or $274,190.28 as a deposit which is non-refundable in
the event the Buyer does not complete the transaction, unless
terminated pursuant to Section (I)(b)(iii) herein. Upon Closing
said earnest money shall be applied to the total purchase price.
[¶5] Pursuant to the PSA, Skyco could terminate the purchase based on title concerns:
(I) Title:
(a) Title Examination. Upon execution of this
Agreement, Buyer may, at Buyer’s option and expense,
undertake to obtain an examination of title to the
Mineral Interest.
(b) Objections to Title. In the event Buyer
determines title to the Leasehold is subject to any
encumbrance, defect or issue which renders title to the
Leasehold unacceptable to Buyer in its sole discretion,
then Buyer shall promptly advise Seller of such
encumbrance, defect or issue and request that Seller
remove or correct the same. Buyer shall have final
approval of all legal, geological, environmental and
regulatory issues affecting the property, which
approval shall not be unreasonably withheld. In the
event Seller fails to remove or correct such issue, defect
or encumbrance within thirty (30) days after notice
thereof, Buyer shall have the right and option to:
(i) Grant a reasonable additional time for
Seller to remove or correct such issue, defect or
encumbrance;
(ii) Waive in writing such issue,
encumbrance or defect or any portion thereof; or,
2
(iii) Refuse to accept title to such portions of
the Leasehold as are affected by such
encumbrance, defect, or issue. In the event title
to more than 50% is refused by Buyer as
provided herein, Buyer or Seller shall have the
right to cancel this Agreement in its entirety.
(Emphasis added.)
[¶6] On January 15, 2020, Skyco remitted $300,000 to Family Tree as earnest money. 1
On January 22, Mr. Coker informed J. Christopher Dykes, a vice president of Family Tree,
that Skyco needed an extension of the closing date to secure financing for the purchase.
On January 23, Mr. Dykes emailed Mr. Coker and Blake Bergstrom, also of Skyco, that an
extension of the closing date would require “additional non-refundable earnest money.”
During its examination of the title to the mineral interests, Skyco had discovered that 67%
of the 13,056.18 net mineral acres being purchased were permitted with companies or
individuals other than Family Tree. Skyco could at most develop 33% of the property. On
January 23, the same day that Mr. Dykes sent his email, Mr. Bergstrom emailed the
following message to Mr. Dykes:
While discussing the substance of your and Brian’s call,
it drew my attention to a schedule of permits we had produced
by staff reflecting material impediments to the value of the
leasehold. Due to the complications associated with Wyoming
APDs [application for permit to drill] and the lack of any legal
test of the proposed/accepted changes associated with
overturning existing APDs, it is not reasonably possible to
determine DSUs [drilling spacing unit] for the subject acreage.
This serious impediment renders the acreage defective for all
material purposes under Section I b iii of the PSA between the
Parties . . . .
Skyco rescinds and revokes the PSA and requests return
of the earnest money deposit, which exceeded the amount
called for in the agreement and totaled $300,000.00. We
appreciate the opportunity to have worked with you in an effort
to purchase this acreage.
1
Skyco did not timely pay the earnest money, but the parties executed an addendum to the PSA, which
stated that Skyco’s “delayed refundable earnest money deposit has not seriously impaired or impacted the
terms to that Agreement and does not constitute a breach of contract.”
3
[¶7] On January 24, 2020, Mr. Bergstrom sent a second email message to Mr. Dykes,
which read:
I also wanted to apologize it took so long for us to
review this. There was the holidays and we actually didn’t
even notice the contract was changed by y’all . . . so we thought
we had a lot more time. Please confirm this email was received
and wire monies as soon as possible. Thank you.
[¶8] On January 28, Mr. Coker followed up with another email message to Mr. Dykes.
This one read:
Did you receive Blake’s email from last week? I wanted
to make sure that you all got “both” emails, the initial email
that requests return of the earnest money as well as the more
conciliatory email that apologizes for being a bit hot-headed.
Without holding any permits in the name of [Family Tree] or a
subsidiary of the same, taken as a whole: the absence of
permits, the uncertainty surrounding what will happen with the
Anadarko acreage and how that will impact the leasehold,
together with the geological uncertainty surrounding the
eastern acreage, I agree with Blake’s email below. Please call
if you would like to discuss.
No one from Family Tree, including Mr. Dykes, responded to the email correspondence
from Mr. Bergstrom or Mr. Coker.
[¶9] On February 3, 2020, Mr. Coker emailed a letter to Mr. Dykes, which informed
Family Tree, that because over 50% of the mineral leasehold was unacceptably
encumbered, “I write to give notice of Skyco’s termination of the PSA pursuant to Section
(I)(b)(iii) of the PSA and demand refund of $274,190.28, plus any overpayment, in earnest
money as specified pursuant to Section III of the PSA.” Family Tree again did not respond
to Skyco’s demand, and on March 16, 2020, counsel for Skyco sent a demand letter to
Family Tree’s counsel.
[¶10] On April 14, 2020, Skyco filed a complaint against Family Tree asserting several
claims, including claims for breach of contract, breach of the implied covenant of good
faith and fair dealing, conversion, and fraud/intentional misrepresentation. Following
discovery, the parties filed cross-motions for summary judgment. Both parties asserted
there were no genuine issues of material fact, and each claimed it was entitled to judgment
4
as a matter of law on Skyco’s claims. 2 Family Tree argued that because Skyco did not
provide the required thirty-day notice and opportunity for Family Tree to cure any alleged
concern with its title, it was not obligated to refund the earnest money. Skyco argued that
it did not have to follow the PSA’s notice and cure termination provision because the
defects it identified were incurable. It further argued that if its failure to provide the thirty-
day notice was a breach, it was not material because Family Tree remained in possession
of the property and the earnest money.
[¶11] Skyco prepared an authenticated spreadsheet showing that the mineral acres in
question were subject to no fewer than eighty-six drilling permits held by approximately
eight separate companies. Mr. Coker by affidavit attested:
Acquisition of the drilling permits for the minerals
rights is a critical necessity for exploration and development of
minerals in Wyoming. Wyoming is a “first to file state,” which
means that the [first] developer to apply and receive a drilling
permit over authorized spaces in a drilling spacing unit
becomes the “operator.” The operator owns the exclusive right
to conduct (or not conduct) oil and gas drilling within a spacing
unit. A permit to drill lasts two years and can be renewed.
Mineral rights and leasehold owners within [a] drilling spacing
unit are at the mercy of the operator. Stated another way,
without a drilling permit, mineral rights and leasehold owners
in Wyoming have no right or opportunity to explore for or
develop the mineral resource. Owning the drilling permit is
critical to produce oil and gas in Wyoming.
[¶12] The district court found there were no disputed issues of material fact and granted
Family Tree summary judgment on all Skyco’s claims. With respect to Skyco’s breach of
contract claim, the court found that Skyco breached the PSA when it terminated the
agreement without providing the required thirty-day notice and opportunity to cure. It
further found that the breach was material, reasoning that “[r]egardless of who is in control
of the earnest money or the property, the Court cannot see Skyco’s action as anything but
a material breach of the PSA, as Skyco’s actions denote its intent to immediately stop
performance on its part.” The court also rejected Skyco’s argument that the defects could
not have been cured and found even if the defects were incurable, this circumstance would
not excuse the failure to provide notice and the opportunity to cure. Ultimately, it ruled:
2
We are able to glean the parties’ summary judgment positions only from the district court’s order on
summary judgment. Although the materials supporting their motions were designated as part of the record
on appeal, neither party designated its motion nor supporting memoranda as part of the record.
5
Neither party nor the Court can find anything
ambiguous about the PSA. It is clear from the contract that the
intent of the parties was to draft the PSA in such a way that
both parties would be protected from contests over the title of
the property. Skyco had the right to raise concerns regarding
specific issues and Family Tree had a thirty (30) day period in
which [to] quell any of Skyco’s concerns. Skyco clearly
asserted its desire to rescind the contract and demanded its
earnest money back. Given the terms of the contract, Family
Tree was justified in its belief that Skyco had breached the
PSA, thus withholding the earnest money and disengaging
from any contractual obligation was within Family Tree’s
rights. As there is no dispute as to Skyco’s actions, there is no
dispute of material fact. Family Tree’s Motion for Summary
Judgment as it pertains to Skyco’s claim of breach of contract
must be granted.
[¶13] The district court concluded that Skyco’s claim for conversion depended on its
breach of contract claim and therefore granted Family Tree summary judgment on that
claim. As to Skyco’s claim for breach of the covenant of good faith and fair dealing, the
court found that Family Tree acted as it was entitled to under the PSA and was therefore
entitled to summary judgment on that claim as well. The court also ruled that Skyco’s
fraud/intentional misrepresentation claim failed because it was barred by the economic loss
rule.
STANDARD OF REVIEW
[¶14] “We review a district court’s ruling on summary judgment de novo and may affirm
on any legal ground appearing in the record.” Miller by & through Travis v. Sweetwater
Cnty. Sch. Dist. #1, 2021 WY 134, ¶ 13, 500 P.3d 242, 246 (Wyo. 2021) (quoting James
v. James, 2021 WY 96, ¶ 23, 493 P.3d 1258, 1264 (Wyo. 2021)).
We . . . afford no deference to the district court’s ruling.
Thornock v. PacifiCorp, 2016 WY 93, ¶ 10, 379 P.3d 175, 179
(Wyo. 2016). This Court reviews the same materials and uses
the same legal standard as the district court. Id. The record is
assessed from the vantage point most favorable to the party
opposing the motion . . . , and we give a party opposing
summary judgment the benefit of all favorable inferences that
may fairly be drawn from the record. Id. A material fact is one
that would have the effect of establishing or refuting an
essential element of the cause of action or defense asserted by
the parties. Id.6
Miller, ¶ 13, 500 P.3d at 246 (quoting James, ¶ 23, 493 P.3d at 1265).
[¶15] Concerning the parties’ burdens on summary judgment, we have said:
The party moving for summary judgment bears the
burden of establishing a prima facie case and showing there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law. Once that burden is
met, the opposing party is obligated to respond with materials
beyond the pleadings to show a genuine issue of material fact.
When the moving party does not have the ultimate burden of
persuasion, it establishes a prima facie case for summary
judgment by showing a lack of evidence on an essential
element of the opposing party’s claim.
Miller, ¶ 14, 500 P.3d at 246 (citations and quotation marks omitted).
[¶16] Both Skyco and Family Tree asserted there were no disputed issues of material fact,
and each claimed it was entitled to summary judgment on all claims. In the case of such
cross-motions, we have emphasized the importance of considering each motion
independently.
[E]ach party, as a movant for summary judgment, bears the
burden of establishing that no genuine dispute of material fact
exists and that the movant is entitled to a judgment as a matter
of law. The fact that one party fails to satisfy that burden on
his own Rule 56 motion does not automatically indicate that
the opposing party has satisfied its burden and should be
granted summary judgment on the other motion. The court
must rule on each party’s motion on an individual and separate
basis, determining, for each side, whether a judgment may be
entered in accordance with the Rule 56 standard. Both motions
must be denied if the court finds that there is a genuine dispute
of material fact. But if there is no genuine dispute and one or
the other party is entitled to prevail as a matter of law, the court
will render judgment.
White v. Wheeler, 2017 WY 146, ¶ 39, 406 P.3d 1241, 1251 n.5 (Wyo. 2017) (quoting 10A
Charles A. Wright et al., Federal Practice and Procedure § 2720 (4th ed. 2016)).
7
DISCUSSION
I. Despite an express notice and cure provision, a futility defense to repudiation of
the contract may apply to Skyco’s breach of the PSA and, if it does, entitle it to
the return of its earnest money.
[¶17] The PSA provided that the earnest money paid by Skyco was “non-refundable in
the event [Skyco] does not complete the transaction, unless terminated pursuant to Section
(I)(b)(iii) herein.” Section (I)(b)(iii) required Skyco to give Family Tree thirty days’ notice
of any title issue, defect, or encumbrance and allowed it to cancel the agreement if Family
Tree failed to remove or correct the issue, defect, or encumbrance. It gave Skyco broad
discretion to determine what was an “encumbrance, defect or issue” and gave it “final
approval” of “issues affecting the property . . . .” It is undisputed Skyco did not give Family
Tree the thirty-day notice required by the PSA. 3
[¶18] Skyco makes alternative arguments to support its claim for return of the earnest
money: (1) the notice and cure provision was not applicable given its broad discretion to
reject title; (2) it did not breach or repudiate the PSA; and (3) any breach was excused
under the futility doctrine.
Applicability of the Notice and Cure Provision
[¶19] Skyco argues that because Section (I)(b)(iii) of the PSA states that (1) Skyco, as the
buyer, can determine whether any “issue” “renders title to the Leasehold unacceptable to
Buyer in its sole discretion,” and (2) “Buyer shall have final approval of all . . . regulatory
issues affecting the property,” it could simply declare title unacceptable and terminate the
contract without giving Family Tree notice and an opportunity to cure. It also claims that
because it had such broad discretion, any breach by its failure to comply with the notice
and cure provisions was immaterial. We reject this interpretation of the PSA because it
would essentially nullify the requirement of notice and an opportunity to cure provision
found in Section (I)(b)(iii) of the PSA. See Pope v. Rosenberg, 2015 WY 142, ¶ 24, 361
P.3d 824, 831 (Wyo. 2015) (“We do not construe contracts in a fashion that renders any
provision of them meaningless.” (citing Shaffer v. WINhealth Partners, 2011 WY 131,
¶ 17, 261 P.3d 708, 713 (Wyo. 2011))). Although under the PSA Skyco had broad
discretion to identify “issues” and make a final determination about the acceptability of
title, the same provision required Skyco to notify Family Tree of such issues and give it an
opportunity to cure. Skyco’s ultimate discretion did not render the notice and opportunity
to cure requirement a nullity, nor did it make any breach immaterial.
3
When considering cross-motions for summary judgment, we review each movant’s evidence separately.
It is clear, however, that Skyco did not give Family Tree the notice required by the PSA, and Skyco does
not contend otherwise.
8
Breach or Repudiation by Skyco
[¶20] Next, Skyco claims its notices to Family Tree cancelling the contract did not
actually breach or repudiate the contract, but only “put the Defendants on notice that the
Plaintiff intended to cancel the contract if the Defendants were unable to remove or correct
any of the issues regarding title.” We define a repudiation as follows:
A repudiation is a manifestation by one party to the other that
the first cannot or will not perform at least some of its
obligations under the contract. For a repudiation to have legal
effect, the threatened breach must be serious. According to the
Restatement Second, it must be serious enough that the injured
party could treat it as total if it occurred. A repudiation may be
by words or other conduct.
Usually[,] a repudiation consists of a statement that the
repudiating party cannot or will not perform. The statement
must be sufficiently positive to be reasonably understood as
meaning that the breach will actually occur. A party’s
expressions of doubt as to its willingness or ability to perform
do not constitute a repudiation.
Roussalis v. Wyoming Med. Ctr., Inc., 4 P.3d 209, 254 (Wyo. 2000) (quoting II E. Allan
Farnsworth, Farnsworth on Contracts § 8.20, at 470 (1990)).
[¶21] Skyco sent an email to Family Tree on January 23, 2020, stating “Skyco rescinds
and revokes the PSA and requests return of the earnest money deposit[.]” On February 3,
2020, one of Skyco’s principals again confirmed its repudiation of the PSA: “I write to
give notice of Skyco’s termination of the PSA pursuant to Section (I)(b)(iii) of the PSA
and demand refund [of the earnest money].” Skyco did not express any doubt as to its
willingness or ability to perform, but unequivocally announced it would not complete the
purchase. Skyco repudiated the contract.
The Futility Doctrine
[¶22] Finally, Skyco asserts its breach of the PSA in the form of an anticipatory
repudiation is “excused” because it would have been impossible for Family Tree to correct
the permitting problems by the time of closing. As a corollary to this argument, Skyco
claims Family Tree had the burden of showing it could have corrected the title problems
and fully performed its duties under the PSA, and it failed to do so. Skyco’s argument
relies squarely on the “futility” doctrine.
9
[¶23] The doctrine of futility is widely accepted as recognized in reputable secondary
authorities:
It is essential that the promisor’s [Skyco’s] conduct in
repudiating the contract be the cause of the promisee’s [Family
Tree’s] failure to perform a condition precedent. Thus, the rule
excusing the nonoccurrence of conditions precedent when
there has been a repudiation of the contract by the party whose
performance is conditional does not apply when the promisee
could not or would not have performed the condition in any
event, that is, whether or not the promisor repudiated the
contract. . . . In such a case, both parties are discharged from
their duty to perform the contract.
13 Samuel Williston, Treatise on the Law of Contracts § 39:41, at 753–55 (Richard A.
Lord ed., 4th ed. 2013) (emphasis added) (footnotes omitted) (Causation; the non-
repudiating party’s own inability or unwillingness to perform) (and cases cited therein).
[¶24] The Restatement (Second) of Contracts § 254 (1981) (Effect of Subsequent Events
on Duty to Pay Damages) states this principle:
(1) A party’s duty to pay damages for total breach by
repudiation is discharged if it appears after the breach that
there would have been a total failure by the injured party
to perform his return promise.
(2) A party’s duty to pay damages for total breach by
repudiation is discharged if it appears after the breach that
the duty that he repudiated would have been discharged by
impracticability or frustration before any breach by non-
performance.
Comment:
a. Non-performance by injured party after repudiation. If
the parties are to exchange performances under an exchange of
promises, each party’s duties to render performance are
generally regarded as conditional on the other party’s
performance, or at least on his readiness to perform (§§ 237,
238, 251, 253). This principle applies even though one party
is already in breach by repudiation. His duty to pay damages
is discharged if it subsequently appears that there would have
10
been a total failure of performance by the injured party. A
failure is total in this context if it would have been sufficient to
have discharged any remaining duties of the party in breach to
render his performance. See § 242. The result follows even if
it appears that the failure would have been justified and not a
breach. Cf. § 244.
Restatement (Second) of Contracts § 254 & cmt. a (Am. Law Inst. 1981) (and cases cited
therein).
[¶25] 17A Am. Jur. 2d Contracts § 705 states:
Although the plaintiff need not continue to perform
after the other party has anticipatorily repudiated a contract, it
does not relieve that party of the need to show an ability to
perform as a prerequisite to obtaining a remedy. The plaintiff
must still demonstrate, to recover damages, that he or she had
the willingness and ability to perform before the repudiation
and would have performed if the defendant had not repudiated.
Under the Restatement the obligation to pay damages
for a total breach by repudiation is discharged if it appears after
the breach that there would have been a total failure by the
injured party to perform the return promise or the duty that was
repudiated would have been discharged by impracticability or
frustration before any actual breach. This language does not
distinguish between damages sought by the injured party and
damages already obtained from the repudiating party which the
injured party seeks to retain.
17A Am. Jur. 2d Contracts § 705, at 683–84 (2016) (footnotes omitted).
[¶26] “The futility doctrine flows out of the principle that ‘the law does not require the
performance of vain or useless things.’” All. Metals, Inc., of Atlanta v. Hinely Indus., Inc.,
222 F.3d 895, 905–06 (11th Cir. 2000) (quoting Fishel v. Yorktowne Mut. Ins. Co., 385
A.2d 562, 565 (Pa. Super. Ct. 1978) (citing Forester v. Teutonia Fire Ins. Co., 60 Pa. Super.
151, 156 (1915))); see also Wolff & Munier, Inc. v. Whiting-Turner Contracting Co., 946
F.2d 1003, 1009 (2d Cir. 1991) (noting that a party to a contract may be excused from
complying with a notice requirement if notice would be a “useless gesture”). “A party is
not required to perform a futile or vain act.” Love v. Beck Energy Corp., No. 14 NO 415,
2015 WL 1453338, ¶¶ 52–54 (Ohio Ct. App. March 31, 2015).
11
[¶27] The Eighth Circuit recognized the general rule that a party, such as Family Tree,
who has made an assertion of anticipatory breach and immediate damages is not required
to make an offer to perform or to show his ability to do so, but the court then noted this
rule will apply only when the ultimate “failure to perform conditions [is] induced by the
repudiation. . . . [Otherwise], the promisor [Skyco] is entitled to show in defense that the
contract is one which the promisee [Family Tree] never could have performed.” Quivirian
Dev. Co. v. Poteet, 268 F.2d 433, 439–40 (8th Cir. 1959). “[I]f the condition could not or
would not have been performed had there been no repudiation of the promise, the promisor
is not precluded from asserting the requirement of the condition.” Quivirian, 268 F.2d at
440 (citation omitted); see also Stanwood v. Welch, 922 F. Supp. 635, 642 (D.D.C. 1995)
(“A party claiming anticipatory repudiation must show that but for the repudiation, he
would have been ready, willing, and able to perform his obligations under the contract.”);
SRGC, LLC v. Billy Casper Golf, LLC, No. 5:17-CV-546-OC-30PRL, 2019 WL 13143971,
at *6–7 (M.D. Fla. Jan. 28, 2019) (“Owner argues there is material factual dispute because
Florida law also recognizes the application of the futility doctrine to contracts and does not
require an opportunity to cure when doing so would be impossible. The Court agrees.”
(citing Leghorn v. Wieland, 289 So. 2d 745, 748 (Fla. Dist. Ct. App. 1974) (explaining that
if a default is irreparable and incurable, then giving notice is useless); 7-Eleven, Inc. v.
Kapoor Bros. Inc., 977 F. Supp. 2d 1211, 1222 (M.D. Fla. 2013) (holding, “[t]he Court
agrees that giving a contracting party an opportunity to cure that which cannot be cured
would be a useless exercise,” and concluding immediate termination of a contract was
proper despite failing to abide by notice and cure provisions))).
[¶28] Courts have adopted various approaches to the doctrine of futility. 4 Cases in which
the futility doctrine is argued as a basis to excuse a breach of a notice-and-cure provision
are fact sensitive, and often turn on resolving disputed issues of fact. Many courts examine
whether the party claiming entitlement to notice is in a position to deliver performance on
the contract which would achieve its purpose. If the entitled party cannot perform (cure),
the repudiating party can successfully raise a defense of futility. For example, Missouri
law recognizes the rule as follows:
The law does not require written notice to be given when doing
so would be a vain and useless act. See, e.g., Home Trust Co.
v. Josephson, 339 Mo. 170, 95 S.W.2d 1148, 1152 (1936);
Darr v. Structural Systems, Inc., 747 S.W.2d 690, 694 (Mo.
App. 1988). The application of this general principle of
Missouri law is in accord with appellate decisions from other
jurisdictions more specifically holding that the failure to give
4
For example, New York allows application of the doctrine only under limited circumstances, where the
other party has already repudiated or totally abandoned the contract. See Point Prods. A.G. v. Sony Music
Ent., Inc., No. 93 CIV. 4001 NRB, 2000 WL 1006236, at *3–4 (S.D.N.Y. July 20, 2000); see also E. Empire
Constr. Inc. v. Borough Constr. Grp. LLC, 156 N.Y.S.3d 148, 152 (App. Div. 2021).
12
written notice, pursuant to a notice-and-cure provision in a
contract, does not prevent immediate termination of the
agreement if the breach is incurable.
Stacey v. Redford, 226 S.W.3d 913, 918–19 (Mo. Ct. App. 2007) (citations to other
jurisdictions omitted); see also DC Farms, LLC v. Conagra Foods Lamb Weston, Inc., 317
P.3d 543, 553 (Wash. Ct. App. 2014) (requiring strict compliance with notice-and-cure
provision but holding that breaching party may still defend on basis that product
contamination that caused it to refuse further performance could not be cured); Mint Solar,
LLC v. Sam’s W., Inc., No. 5:19-CV-05167, 2021 WL 1723095, at *11 (W.D. Ark. Apr.
30, 2021) (“The Court disagrees with Mint’s characterization that courts only apply the
futility defense when the party who would cure has repudiated or abandoned the
contract.”); L.K. Comstock & Co. v. United Eng’rs & Constructors Inc., 880 F.2d 219, 232
(9th Cir. 1989) (“[S]ince [subcontractor] was so far behind schedule, and since it could not
have cured its breaches within 48 hours, for [general contractor] to give a 48-hour notice
would have been a useless gesture in terms of any benefits to [subcontractor].”); Young
Travelers Day Camps, Inc. v. Felsen, 118 N.J. Super. 304, 315, 287 A.2d 231, 237 (Dist.
Ct. 1972) (camp director unable to remedy breach for failing to secure campers could not
rely on notice/cure clause in contract); LJL Transp., Inc. v. Pilot Air Freight Corp., 962
A.2d 639, 651 (Pa. 2009) (allowing cancellation of franchise agreement without notice and
chance to cure when franchisee was shipping on the side to avoid paying percentages to
franchisor; breach went to the heart of trust and loyalty issues); Duncan v. Woodlawn Mfg.,
Ltd., 479 S.W.3d 886, 899 (Tex. App. 2015) (employee claiming a right to written notice
before termination had violated at least two of the incorporated handbook rules, which by
their terms permitted immediate termination based on the circumstances). Leghorn, 289
So. 2d at 748 (employee charged with misappropriating corporate funds for his own use
could not rely on notice and cure provision given impossibility of curing disloyalty and
dishonesty claims).
[¶29] Similar to these cases, we have recognized futility as a defense to repudiation of a
contract. Black & Yates v. Negros-Philippine Lumber Co., 32 Wyo. 248, 231 P. 398(1924). 5 In Black, the Court quoted with approval Geipel v. Smith, 26 L. T. (N. S.) 361
(1872):
5
In Anderson v. Cliff Gold Mining Co., 47 Wyo. 349, 38 P.2d 334, 335–39 (1934), a dispute arose over a
mining lease contract that required the lessee mine a certain tract of land and pay the lessor a percentage of
the value of the ore and costs for the use of its equipment. The lessee found no useable ore and discontinued
mining. The lessor claimed there was ore that could be mined. After finding that there was no evidence
“ore could have been mined so as to produce a profit, a result both parties obviously contemplated by their
contract.” Id. at 337. The Court, quoting Willis’ Thornton on Oil and Gas, § 243 with approval, under the
theories of impracticability or impossibility, stated:
Except for the supposition of the presence of [ore] and its
13
In Geipel v. Smith, supra, quoted in Andrew Miller & Co. v.
Taylor & Co., 1 K. B. (1916) 402, 413, where it was contended
that defendant abandoned performance too soon by sailing
away, it was said:
If the defendants chose to run the risk, and in the event
turn out right, they are in the same position as if they
had waited a reasonable time and had then sailed away.
So in the case at bar, the defendant should not be placed in a
worse position because it did not wait until the expiration of a
reasonable time . . . .
Black, 231 P. at 405.
[¶30] On summary judgment, Skyco bore the burden of introducing evidence that giving
notice and an opportunity to cure the alleged encumbrances on the title would have been
useless. All. Metals, 222 F.3d at 905–06; O’Hara Grp. Denver, Ltd. v. Marcor Hous. Sys.,
Inc., 595 P.2d 679, 684–85 (Colo. 1979) (“The failure of O’Hara Denver to appear at
closing or to make objections to the state of Marcor’s title until Marcor attempted to collect
liquidated damages places the burden on O’Hara Denver to show that the defects could not
have been cured by Marcor within a reasonable time.”). Summary judgment is appropriate
only if a party, in this case Skyco, fails to present evidence of futility. Ezer v. Texas Tower
Ltd., No. CIV.A. H-13-1805, 2014 WL 3669222, at *8–9 (S.D. Tex. July 22, 2014)
(“Because Plaintiffs have produced no evidence that they provided notice, nor any evidence
that providing notice would have been futile, Texas Tower is entitled to summary
judgment[.]”). The district court stated that there were no facts supporting the conclusion
that the defects in title could not have been cured. We disagree. Skyco was entitled to all
favorable inferences that could be drawn from the evidence in the record at the summary
judgment stage of the proceedings. Skyco presented evidence that—drilling permits are
valid for two years and may be renewed at the discretion of the permit holder; 67% of the
minerals were permitted with companies or individuals other than Family Tree, and there
continuation throughout the period of the lease, there would have been no
contract. Continuation and profitable production were contemplated. It
was demonstrated that at the time of abandonment and refusal to pay the
annual royalty there was no [ore] there. The drilling of the wells would
have been futile. It is not denied that the drilling would have effectually
erased the obligation. Obviously if that had been done, since the gas was
not there, the lessor could have collected nothing under the contract and
the contract would have ended even though it is silent in that respect.
Anderson at 338.
14
were no fewer than eighty-six drilling permits held by approximately eight separate
companies.
[¶31] Skyco produced sufficient evidence to establish an issue of fact whether compliance
with the notice and cure provision would have been futile. It is appropriate that a jury
decide whether Skyco’s reasons for repudiation were based on legitimate concerns under
the contract and whether it was impossible for Family Tree to cure the defects. See Meuse-
Rhine-Ijssel Cattle Breeders of Canada Ltd. v. Y-Tex Corp., 590 P.2d 1306, 1311–12 (Wyo.
1979) (“Not only is there a question of fact presented, but the issue of impossibility of
performance is a question normally most suitable for determination by the trier of fact.”).
Skyco met its burden establishing issues of material fact as to whether Family Tree was
able to perform its obligations under the terms of the contract.
Earnest Money
[¶32] If Skyco prevails on its futility defense, forfeiture of the earnest money would
unfairly penalize Skyco. Skyco argues that, if its breach was excused, Family Tree did not
suffer any actual damage which would entitle it to retain the earnest money. The function
of earnest money in a contract was explained in Everett Assocs. v. Garner:
Depending on the language used in the contract and the
intent of the parties, the existence of an earnest money
provision in a real estate contract can have one of three effects
in the case of a breach by the buyer. First, the money could be
considered as partial payment of any actual damages which can
be proven as the result of the breach; second, the money could
be applied as part payment of the purchase price in the
enforcement of the contract in a suit for specific performance;
and thirdly, the money could be liquidated damages for breach
of the contract by the buyer.
Everett Assocs. v. Garner, 291 S.E.2d 120, 122 (Ga. Ct. App. 1982). Where, as in this
case, parties seek neither actual damages nor specific performance, they are justified in
retaining earnest money only if it constitutes liquidated damages:
A contractual provision requiring payment of a
stipulated sum by one of the parties upon termination or
cancellation of the contract will be treated as an enforceable
liquidated damages provision rather than an unenforceable
penalty only if all three of the following factors are present:
First, the injury caused by the breach must be difficult or
impossible of accurate estimation; second, the parties must
intend to provide for damages rather than a penalty; and third,
15
the stipulated sum must be a reasonable pre-estimate of the
probable loss resulting from such a breach.
Broad. Corp. of Georgia v. Subscription Television of Greater Atlanta, 338 S.E.2d 775,
776–77 (Ga. Ct. App. 1985) (citing Thorne v. Lee Timber Prods., Inc., 279 S.E.2d 521, 522
(Ga. Ct. App. 1981)).
[¶33] We addressed earnest money as liquidated damages in Walker v. Graham:
Generally speaking, it may be said that when the damages
arising from the breach of the contract which the obligation is
given to secure are uncertain in their nature and not readily
susceptible of proof by the ordinary rules of evidence, and are
not so disproportionate to the probable damages suffered as to
appear unconscionable, and it is reasonably clear from the
whole agreement that it is the intention of the parties to provide
for liquidated damages and not a penalty, such a stipulation
will be held to be one for liquidated damages.
Walker v. Graham, 706 P.2d 278, 281 (Wyo. 1985) (emphasis added) (citations omitted).
[¶34] The elements of a breach of contract claim are “a lawfully enforceable contract, an
unjustified failure to timely perform all or any part of what is promised . . . , and entitlement
of [the] injured party to damages.” Halling v. Yovanovich, 2017 WY 28, ¶ 13, 391 P.3d
611, 616–17 (Wyo. 2017) (quoting Schlinger v. McGhee, 2012 WY 7, ¶ 12, 268 P.3d 264,
268 (Wyo. 2012), as amended on reh’g (Feb. 7, 2012)). “It goes without saying that to
warrant a recovery of liquidated damages, there must have been a breach of the underlying
contract by the defendant.” 24 Samuel Williston, Treatise on the Law of Contracts § 65:33,
at 358–59 (Richard A. Lord ed., 4th ed. 2018).
Anticipatory breach, by itself, does not entitle the injured party
to damages. To recover damages, in addition to proving
repudiation, the nonbreaching party need only show that it
would have been ready and willing to have performed the
contract, if the repudiation had not occurred. Thus, a party’s
duty to pay damages for total breach by repudiation is
discharged if it appears after the breach that there would have
been a total failure by the injured party to perform its return
promise.
23 Williston, § 63:44, at 656–57; see also Restatement (Second) of Contracts § 254.
16
[¶35] Here, if Skyco establishes that its compliance with the notice and cure provision is
excused, there are no damages, and “both parties are discharged from their duty to perform
the contract.” 13 Williston, § 39:41, at 755 (and cases cited therein). On the other hand,
if a jury finds that Skyco has not established futility, Skyco’s breach was not excused, and
Family Tree may be entitled to the earnest money if the earnest money qualifies as
liquidated damages and not a penalty.
[¶36] Because Skyco has raised a material question of fact as to whether it was entitled to
a return of its earnest money, its conversion claim likewise remains at issue. See Lieberman
v. Mossbrook, 2009 WY 65, ¶ 21, 208 P.3d 1296, 1304 (Wyo. 2009) (“Conversion occurs
when a person treats another’s property as his own, denying the true owner the benefits
and rights of ownership.” (quoting Cross v. Berg Lumber Co., 7 P.3d 922, 929 (Wyo.
2000))). We turn then to Skyco’s claim for breach of the covenant of good faith and fair
dealing.
II. Skyco offered no evidence that Family Tree breached the covenant of good faith
and fair dealing.
[¶37] Wyoming has adopted the Restatement (Second) of Contracts § 205, which provides
that “[e]very contract imposes upon each party a duty of good faith and fair dealing in its
performance and its enforcement.” Bear Peak Res., LLC v. Peak Powder River Res., LLC,
2017 WY 124, ¶ 68, 403 P.3d 1033, 1053 (Wyo. 2017) (quoting Scherer Constr., LLC v.
Hedquist Constr., Inc., 2001 WY 23, ¶¶ 17–18, 18 P.3d 645, 652–53 (Wyo. 2001)).
The implied covenant of good faith and fair dealing requires
that neither party commit an act that would injure the rights of
the other party to receive the benefit of their agreement.
Compliance with the obligation to perform a contract in good
faith requires that a party’s actions be consistent with the
agreed common purpose and justified expectations of the other
party. A breach of the covenant of good faith and fair dealing
occurs when a party interferes or fails to cooperate in the other
party’s performance. The purpose, intentions, and
expectations of the parties should be determined by
considering the contract language and the course of dealings
between and conduct of the parties. The covenant of good faith
and fair dealing may not, however, be construed to establish
new, independent rights or duties not agreed upon by the
parties. In other words, the concept of good faith and fair
dealing is not a limitless one. The implied obligation must
arise from the language used or it must be indispensable to
effectuate the intention of the parties. In the absence of
evidence of self-dealing or breach of community standards of
17
decency, fairness or reasonableness, the exercise of contractual
rights alone will not be considered a breach of the covenant.
Id. ¶ 68, 403 P.3d at 1053–54 (quoting Scherer, ¶ 19, 18 P.3d at 653–54).
[¶38] Skyco claims on appeal that Family Tree breached the covenant of good faith and
fair dealing when it retained Skyco’s earnest money without attempting to cure the title
defects Skyco had identified, or otherwise responding to its notices. It does not contend
that it should have been granted summary judgment on its claim, but instead argues that
the district court erred in granting Family Tree summary judgment on the claim.
[¶39] Skyco claims two errors in the district court’s ruling. First, it contends the court
erred in ruling that a breach of the covenant depended on finding a breach of contract.
While we agree a breach of the implied covenant of good faith and fair dealing does not
depend on a breach of contract, we disagree that was the basis of the district court’s ruling.
We have said:
The implied covenant of good faith and fair dealing is a claim
separate and distinct from a breach of contract claim, and the
two claims are not mutually dependent. Cathcart v. State Farm
Mut. Auto. Ins. Co., 2005 WY 154, ¶ 25, 123 P.3d 579, 589
(Wyo. 2005). Thus, a party may breach the implied covenant
of good faith and fair dealing even if it did not breach the
express terms of the contract. City of Gillette v. Hladky Const.,
Inc., 2008 WY 134, ¶ 41, 196 P.3d 184, 199 (Wyo. 2008).
Bear Peak, ¶ 68, 403 P.3d at 1054.
[¶40] The district court ruled:
Family Tree has not breached the terms of the PSA.
Skyco plainly stated its intention to rescind the contract
between the parties. Skyco did not, as noted above, have the
right to do so without complying with the contracts [sic] cure
provision. It was clearly, a declaration that Skyco no longer
intended to perform. Family Tree at the time [was] not
obligated to do anything further. Family Tree’s Motion for
Summary Judgment as it pertains to Skyco’s claim of breach of
implied covenant of good faith and fair dealing must be
granted.
[¶41] We do not read the district court’s ruling as rejecting Skyco’s claim on the basis that
Family Tree did not breach the PSA. We instead read it to say that Family Tree did what
18
it was permitted to do under the PSA, and for that reason, it did not violate the covenant of
good faith and fair dealing. Our law supports that conclusion. See Bear Peak, ¶ 69, 403
P.3d at 1054 (“Under Wyoming law, a claim for breach of the implied covenant of good
faith and fair dealing cannot exist where a party is simply exercising those right[s] that they
are contractually entitled to exercise.” (quoting Harper v. Fid. & Guar. Life Ins. Co., 2010
WY 89, ¶ 34, 234 P.3d 1211, 1221 (Wyo. 2010))); see also Scherer, ¶ 19, 18 P.3d at 654
n.2 (“A motion for summary judgment may be granted if, under the facts in the record, the
party’s actions alleged as the basis for the breach of the implied covenant were in
conformity with the clear language of the contract.”). There is, however, a limitation on
this rule, and that limitation leads us to Skyco’s next argument.
[¶42] We have held that while a party’s exercise of its contractual rights may not serve as
a basis for breach of the covenant, a party nonetheless may not exercise its contractual
rights in a manner that amounts to self-dealing or a violation of community standards of
decency, fairness, or reasonableness. Jontra Holdings Pty Ltd v. Gas Sensing Tech. Corp.,
2021 WY 17, ¶ 87, 479 P.3d 1222, 1246 (Wyo. 2021). Skyco contends that questions of
fact existed concerning whether Family Tree’s failure to return the earnest money violated
community standards of decency, fairness, or reasonableness, and those disputed facts
precluded summary judgment. In support, it cites to evidence that between January 23 and
February 3, 2020, it sent four email messages to Family Tree informing it of Skyco’s title
concerns, cancelling the agreement, and demanding a return of its earnest money, along
with evidence that Family Tree did not respond to its messages or return the money. We
disagree that this evidence was sufficient to create a genuine issue of material fact.
[¶43] Skyco did not give Family Tree thirty days’ notice of its title concerns, and its
termination notice therefore did not comply with the PSA. Family Tree’s lack of a response
to Skyco’s improper notices of termination thus did not interfere with Skyco’s justified
expectations under the contract or otherwise violate community standards of decency,
fairness, or reasonableness, and Skyco offers no reasoning or authority to support its
assertion. Because Skyco terminated the agreement without providing the requisite thirty-
day notice, and Skyco bears the burden of proving that giving notice and an opportunity to
cure the alleged encumbrances on the title would have been useless, Family Tree was
entitled to consider the contract terminated and the question of its right to retain the earnest
money remains at issue. There is no mention of futility in the contract itself. It is a defense
claimed by Skyco for failure to provide the required contractual notice. “The covenant of
good faith and fair dealing may not . . . be construed to establish new, independent rights
or duties not agreed upon by the parties.” Scherer, ¶ 19, 18 P.3d at 653. Family Tree did
not violate its duty of good faith and fair dealing by failing to acquiesce to Skyco’s extra-
contractual defense.
[¶44] Skyco would bear the burden of persuasion on its claim for breach of the covenant
of good faith and fair dealing if this case went to trial. Universal Drilling Co. v. R & R Rig
Serv., LLC, 2012 WY 31, ¶ 40, 271 P.3d 987, 999 (Wyo. 2012) (“[T]o establish breach of
19
the implied covenant of good faith and fair dealing, the injured party must demonstrate the
other party acted in ‘bad faith’ by violating community standards of decency, fairness or
reasonableness[.]” (citing Restatement (Second) of Contracts § 205 cmt. a & d)); Michael
H. Graham, Winning Evidence Arguments § 301:2 (Dec. 2021 update) (“Plaintiff, the party
seeking change, bears the risk of failing to prove the elements of its claim.”). This means
that if Family Tree made a showing there was no evidence to support the claim, it was
entitled to summary judgment unless Skyco came forward with evidence to create a
disputed issue of material fact. See Miller, ¶ 14, 500 P.3d at 246 (“When the moving party
does not have the ultimate burden of persuasion, it establishes a prima facie case for
summary judgment by showing a lack of evidence on an essential element of the opposing
party’s claim.” (citations omitted)). The only such evidence Skyco has offered is Family
Tree’s failure to respond to Skyco’s untimely notice of title defects and notices of
termination. For the reasons discussed, that evidence was not sufficient to create a genuine
issue of material fact, and Family Tree was therefore entitled to summary judgment on
Skyco’s claim for breach of the covenant of good faith and fair dealing.
III. The district court correctly ruled that the economic loss rule barred Skyco’s claim
for fraud/intentional misrepresentation.
[¶45] The district court ruled that the economic loss rule barred Skyco’s fraud/intentional
misrepresentation claim and that Family Tree was thus entitled to judgment as a matter of
law. 6 Whether the economic loss rule precludes a claim is a question of law we review de
novo. In re Est. of Gattis, 2013 COA 145, ¶ 10, 318 P.3d 549, 552.
[¶46] “The ‘economic loss rule’ bars recovery in tort when a plaintiff claims purely
economic damages unaccompanied by physical injury to persons or property.” Rogers v.
Wright, 2016 WY 10, ¶ 30, 366 P.3d 1264, 1275 (Wyo. 2016) (quoting Rissler & McMurry
Co. v. Sheridan Area Water Supply Joint Powers Bd., 929 P.2d 1228, 1234–35 (Wyo.
1996)). Its purpose “is to maintain the distinction between those claims properly brought
under contract theory and those which fall within tort principles.” Id. (quoting Rissler, 929
P.2d at 1234–35). It is “founded on the theory that parties to a contract may allocate their
risks by agreement and do not need the special protections of tort law to recover for
damages caused by a breach of the contract.” Id. (quoting Rissler, 929 P.2d at 1235).
6
Skyco’s claim was essentially a claim for fraud in the inducement, the elements of which are: “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.” Elworthy v. First Tennessee Bank, 2017 WY 33, ¶ 41, 391 P.3d 1113, 1124 (Wyo. 2017)
(quoting Claman v. Popp, 2012 WY 92, ¶ 43, 279 P.3d 1003, 1016 (Wyo. 2012)). As the basis for its claim,
Skyco asserted that in three telephone conversations prior to signing the PSA, Mr. Arrowood represented
to Mr. Coker that Family Tree held permits to drill for all the leasehold acreage included in the PSA, and
there were no issues with the permits, the legal description, or the lands involved. It further asserted that
Mr. Arrowood either knew that the representations were false or was at least aware that he did not have a
basis for making the statement. Finally, it claimed that had it known that Family Tree held none of the
drilling permits, it would not have entered into the PSA or paid the earnest money.
20
[¶47] We have recognized, however, that the economic loss rule does not apply to all tort
claims alleging only economic damages; “tort liability may still be premised on a duty
independent of contractual duties.” Rogers, ¶ 30, 366 P.3d at 1275 (quoting Excel Constr.,
Inc. v. HKM Eng’g, Inc., 2010 WY 34, ¶ 19, 228 P.3d 40, 46 (Wyo. 2010)); see also Rissler,
929 P.2d at 1235 (noting there may be cases where the rule would not bar a claim for
negligent misrepresentation but not where plaintiff contracted to protect against that harm).
In particular, in Excel, we held the rule does not necessarily bar a claim for intentional
misrepresentation, subject to the caveat that the liability must be premised on a duty
independent of contractual duties.
A party may not sidestep contractual limitations by simply
pleading an intentional tort. Recovery on a tort theory requires
a showing that a duty independent of contract was violated.
Determining whether a particular intentional tort claim is
simply a repackaged contract claim requires consideration of
the conduct alleged, its relationship to the contractual duties of
the parties, the source of the tort duty alleged to have been
breached, and the nature of the damages claimed.
Excel, ¶ 31, 228 P.3d at 48 (citations omitted); see also JBC of Wyoming Corp. v. City of
Cheyenne, 843 P.2d 1190, 1197 (Wyo. 1992) (“[T]ort recovery based on the contractual
relationship should only be allowed where the breach constitutes an independent injury
over and above disappointment of the plaintiff’s expectation interest.”).
[¶48] Skyco contends its claim is based on a duty outside the contract because it is based
on Family Tree’s duty to speak truthfully during negotiations, which necessarily occur
prior to execution of the contract. We disagree that the timing of the alleged
misrepresentations alone should control. As one court observed:
If . . . all claims for fraud in the inducement are extraneous or
independent of the contract because they occur prior to the
formation of the contract itself . . . , every breach of warranty
claim could be turned into a tort by a simple affidavit stating,
in effect, that the warranty was spoken before it was written.
Worse, written disclaimers of warranties could be voided after
the fact by the same affidavit, again so long as the oral
representations preceded the contract. . . . [A]llowing one party
to plead a tort claim based on oral representations by another
concerning the performance of obligations which are also
contained in a written contract would swallow the economic
loss doctrine.
21
Rich Prods. Corp. v. Kemutec, Inc., 66 F. Supp. 2d 937, 979–80 (E.D. Wis. 1999) (citations
and quotation marks omitted), aff’d, 241 F.3d 915 (7th Cir. 2001).
[¶49] The interpretation Skyco would have this Court adopt ignores the basis for the
economic loss rule and undercuts its objectives. The rule recognizes sophisticated parties
are able “to provide contractual remedies in their business dealings.” Rissler, 929 P.2d at
1235 (citation omitted). Moreover, its aim is to encourage parties to do just that, “to
negotiate toward the risk distribution that is desired or customary.” Id. (citation omitted).
Thus, rather than adopting a bright line rule that statements made in negotiations are
necessarily separate from the parties’ contractual duties, we will determine whether
Skyco’s tort claim is simply a “repackaged contract claim” based on the considerations we
outlined in Excel: “the conduct alleged, its relationship to the contractual duties of the
parties, the source of the tort duty alleged to have been breached, and the nature of the
damages claimed.” Excel, ¶ 31, 228 P.3d at 48.
[¶50] The record shows as follows concerning the Excel factors:
• The conduct alleged and its relationship to the contractual duties of the parties: The
alleged misrepresentations concerned the nature of the leasehold acres that were the
subject of the contract. The PSA placed the burden on Skyco to obtain a title
examination, but it also gave Skyco sole discretion to declare the title unacceptable
based on any encumbrance, defect, or issue. The PSA then shifted the responsibility
back to Family Tree to cure the defect to Skyco’s satisfaction. If that did not happen,
and more than fifty percent of the property was affected, the PSA allowed Skyco to
cancel the agreement and have its earnest money refunded.
• The source of the duty alleged to have been breached: As discussed, the source of the
duty that Skyco claims was breached is the duty to speak truthfully during negotiations.
See Rogers, ¶ 13, 366 P.3d at 1271 (“[E]ven if someone is not under a duty to speak,
if he does speak, he is under a duty to speak truthfully and to make a full and fair
disclosure.” (quoting Claman v. Popp, 2012 WY 92, ¶ 43, 279 P.3d 1003, 1016 (Wyo.
2012))).
• The nature of the damages claimed: As to the damages claimed, Skyco claims on appeal
that it “suffered damages independent of its claim for breach of contract, including lost
business opportunities and worsening of their financial position.” Its complaint,
however, claimed only the following damages:
Based on the assurances from Mr. Arrowood . . . , the
Plaintiff delivered the earnest money deposit in accordance
with the addendum. Upon discovery by the Plaintiff that the
Defendants did not own the [sic] all of the necessary drilling
permits, the Defendants have refused to refund the Plaintiff’s
22
earnest money deposit. Consequently, the Plaintiff has
suffered damages relying on Mr. Arrowood’s false
representation.
[¶51] Skyco’s fraud/intentional misrepresentation claim is exactly what application the
economic loss rule is intended to address. The PSA was an agreement negotiated between
sophisticated parties who plainly recognized the risk that the mineral interests in play might
not meet Skyco’s expectations upon close examination. The parties allocated that risk by
negotiating a forgiving rescission provision. Skyco demanded the return of the earnest
money—the very damages it seeks in its tort claim. See Rissler, 929 P.2d at 1235 (“[W]e
will not allow [a tort claim] to be used as a method to sidestep contractual duties or to
provide a scapegoat for self-inflicted damages.”). As this Court observed in JBC:
This is not to say that JBC has no independent cause of
action based in tort, only that such an action cannot be based
upon the fact that the City and Board failed to make timely
payment. Our holding on this point seems almost self-evident.
Failure to pay sums due under a contract or under arbitration
provided for by contract is clearly ex contractu rather than ex
delicto.
JBC, 843 P.2d at 1197.
[¶52] For these reasons, we agree with the district court that the economic loss rule barred
Skyco’s claim for fraud/intentional misrepresentation.
CONCLUSION
[¶53] Skyco’s evidence established a material issue of fact as to whether Family Tree was
able to perform its end of the bargain. We reverse summary judgment in favor of Family
Tree on Skyco’s claim for return of its earnest money. We affirm the district court’s grant
of summary judgment in favor of Family Tree on the remainder of Skyco’s claims.
[¶54] We reverse in part, affirm in part, and remand for proceedings consistent with this
opinion.
23
FOX, Chief Justice, concurring in part and dissenting in part, in which
BOOMGAARDEN, Justice, joins.
[¶55] I concur in the majority opinion to the extent it affirms the district court ruling. I
dissent in part because I do not believe that futility is a defense available to Skyco under
the circumstances of this case, and I would therefore affirm the district court’s grant of
summary judgment to Family Tree in its entirety.
[¶56] Although, as the majority states, we recognize futility as a defense to repudiation of
a contract, see Black & Yates v. Negros-Philippine Lumber Co, 32 Wyo. 248, 231 P. 398(1924), we have not considered the extent to which the futility doctrine relieves a
repudiating party when the parties have expressly contracted for a mechanism to address
futility. I fully appreciate there will be cases in which the futility doctrine should apply to
a party’s failure to comply with a contract’s bargained for notice-and-cure provision. This
is not such a case.
[¶57] The principle of freedom to contract permits contracting parties to agree to any
terms they wish, so long as those terms do not violate public policy. Nuhome Invs., LLC v.
Weller, 2003 WY 171, ¶ 9, 81 P.3d 940, 945 (Wyo. 2003) (“This court has often showed
its commitment to uphold the right of competent parties to freely contract for various
provisions.”). These parties agreed Skyco would pay earnest money, and they negotiated
the amount. They further agreed the earnest money would be non-refundable if Skyco did
not complete the transaction, unless Skyco terminated the agreement in compliance with
its notice-and-cure provision. 7
[¶58] The notice-and-cure provision the parties negotiated benefitted both parties. It
allowed Skyco broad discretion to declare what constituted a title “issue,” but protected
Family Tree by requiring Skyco to provide it a thirty-day period in which to cure any such
alleged defect. The provision thus addressed the risk that title issues may be discovered too
late to address them before the closing date and allowed Family Tree to retain the earnest
money if Skyco failed in its obligation to give Family Tree the required thirty days’ notice
of any defect or issue. Skyco has not asserted the earnest money or notice provisions
operated as a penalty or otherwise violated public policy, and I therefore see no basis on
which this Court may refuse enforcement of the parties’ agreement. See McMurry Oil Co.
v. Deucalion Rsch., Inc., 842 P.2d 584, 589 (Wyo. 1992) (“It would indeed take an unusual
factual situation for this court to invade the agreement of this Buyer and these Sellers to
redraft what they defined as the understood result for damages if Buyer became unable or
refused to perform.”); see also Oppenheimer & Co., Inc. v. Oppenheim, Appel, Dixon &
7
Earnest money forfeitures are generally enforced unless the amount is so unreasonable as to operate as a
penalty. 24 Williston on Contracts § 65:24 (4th ed. May 2022 update). Skyco has not asserted that the
earnest money amount in this case was unreasonable, operated as a penalty, or was otherwise overreaching
or unconscionable.
24
Co., 660 N.E.2d 415, 421 (N.Y. 1995) (“Freedom of contract prevails in an arm’s length
transaction between sophisticated parties such as these, and in the absence of
countervailing public policy concerns there is no reason to relieve them of the
consequences of their bargain.”).
[¶59] This Court’s decision in McMurry illustrates its commitment to these principles.
There, the parties entered into an agreement for the sale of oil and gas properties for
$950,000 and agreed to a closing date of January 12, 1990. McMurry, 842 P.2d at 585, 587.
Their agreement provided as follows concerning the buyer’s right to terminate:
Buyer shall be entitled to perform, or cause to be performed, at
Buyer’s sole expense, any such title examination as Buyer
deems necessary or appropriate. In the event Buyer determines
that any title defects exist, Buyer shall notify Seller, in writing,
on or before closing of Buyer’s title objections; provided,
however, Buyer shall notify Seller promptly of any title defects
discovered by Buyer. As used in this paragraph, the term “title
defect”, shall include the failure of any working interest. Seller
shall furnish to Buyer on or before closing such curative data
as may be necessary to satisfy Buyer that such defects have
been resolved. If Seller is unable to provide Buyer such
curative data prior to closing, and Buyer is unwilling to waive
any such defects, Buyer may so notify Seller and terminate this
agreement.
Id. at 586.
[¶60] The buyer in McMurry obtained a title opinion on December 15, 1989, which
informed it that another party had a claim to certain unit revenues on a portion of the
property. McMurry, 842 P.2d at 586-87. In a communication dated January 17, 1990, and
received by the sellers on January 26, 1990, the buyer notified the sellers of its title rejection
and termination of the agreement. Id. at 587. The parties thereafter filed cross-suits over
who was entitled to the buyer’s $50,000 earnest money deposit. Id. at 585. The district
court found no breach by the seller, but it concluded that retention of the earnest money
was an unjustified penalty and ordered it returned to the buyer. Id. This Court reversed. Id.
at 589.
[¶61] The Court held “the defendants bargained for and obtained a limited right to cancel
which they failed to exercise within the time agreed upon. The cancellation was, therefore,
ineffective and the defendants’ refusal to perform constituted a breach. . . .” McMurry, 842
P.2d at 587 (quoting Maxton Builders, Inc. v. Lo Galbo, 502 N.E.2d 184, 186 (N.Y. 1986)).
It concluded, “The general principle to be applied is that, in the absence of overreaching or
25
unconscionability, the parties should be left within the framework of the terms of the
agreement that they negotiate.” McMurry, 842 P.2d at 587.
[¶62] I see no reason the McMurry holding should not apply equally to this case. The PSA
provided Skyco a limited right to cancel, conditioned on the requirement that it provide
Family Tree thirty days’ notice of any concerns with title. Skyco did not provide the
required notice, and thus, like the buyer in McMurry, it forfeited its right to return of the
earnest money.
[¶63] The notice and cure provision in the PSA prescribed the method by which Skyco
was permitted to establish futility, and Skyco chose not to avail itself of that method. The
terms of this contract did not require Family Tree to prove an ability to complete the
contract in the event of Skyco’s repudiation. Rather, the terms required Skyco to give
notice and an opportunity to cure which would definitively answer the question of futility.
Skyco chose not to do so. 8
[¶64] Because Skyco was not entitled to a return of its earnest money, its conversion claim
should likewise fail. See Lieberman v. Mossbrook, 2009 WY 65, ¶ 21, 208 P.3d 1296, 1304
(Wyo. 2009) (“Conversion occurs when a person treats another’s property as his own,
denying the true owner the benefits and rights of ownership.”) (quoting Cross v. Berg
Lumber Co., 7 P.3d 922, 929 (Wyo. 2000)).
8
The cases cited by Skyco do not change this result. See Wolken v. Wade, 406 N.W.2d 720 (S.D. 1987);
O’Hara Grp. Denver, Ltd. v. Marcor Hous. Sys., Inc., 595 P.2d 679 (Colo. 1979); Cohen v. Kranz, 189
N.E.2d 473 (N.Y. 1963). None of these cases addressed a buyer’s attempt to cancel a purchase agreement
pursuant to its cancellation or termination provision. They instead stand for the common law rule that “if
the defects in the vendor’s title are incurable, a breach by the vendee is excused because the vendor could
not have performed and could not have put himself in a position to perform.” Wolken, 406 N.W.2d at 724
(quoting O’Hara and Cohen). Notably, these cases concern title defects as that term is generally understood,
rather than title defects as defined by the parties’ agreement. See Wolken, 406 N.W.2d at 722 (third party
had superior ownership interest in mineral claim buyers were purchasing); O’Hara, 595 P.2d at 684
(undisputed that title was encumbered by reservation of mineral rights in third person rendering seller’s
title unmarketable); Cohen, 189 N.E.2d at 474-75 (concerns with legality of structure on premises). In this
case, Skyco declared a title defect pursuant to a provision of the PSA that gave it “sole discretion” to identify
any unacceptable “issue” with the property’s title. Skyco never asserted that Family Tree did not own the
mineral interests it was selling, or that they were otherwise unmarketable. Instead, Skyco asserted a title
defect based on issues with the interests that made them less valuable to it. Under the PSA, that was its
right, but it had to assert that right in compliance with the PSA’s terms. It should not be permitted to seek
the shelter of a common law rule which operates outside the terms to which it agreed.
26