Robert L. Kroenlein Trust v. Kirchhefer
| Decision Date | 31 March 2013 |
| Docket Number | Case No. 11-CV-284-S |
| Parties | Robert L. Kroenlein Trust by and through Deborah Alden, Successor Trustee, and Chugwater Brewing Company, Inc., a Wyoming corporation, Plaintiffs, v. Gary Bruce Kirchhefer, Commodore Bar, Inc., Rick L. Bowen, Silver Dollar Bar of Lusk, LLC, and Larry R. Halligan, Defendants. |
| Court | U.S. District Court — District of Wyoming |
The above-captioned matter comes before the Court on Defendants Larry R. Halligan and the Silver Dollar Bar of Lusk [Doc. 76], the Commodore Bar, Inc. and Rick L. Bowen [Doc. 89] and Gary Bruce Kirchhefer's [Doc. 80] Motions for Summary Judgment. The Court, having carefully reviewed the parties' submissions and being otherwise fully advised in the premises, finds and orders as follows:
STANDARD OF REVIEW
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine dispute as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(a). In applying this standard, the Court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10 Cir. 2002). A "material" fact is one that is "essential to the proper disposition of the claim." Adler v. Wal-Mart Stores, Inc. 144 F.3d 664, 670 (10th Cir. 1998). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way."Id.
The moving party has the initial burden to show the absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Spaulding, 279 F.3d at 904. In attempting to meet this standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant is only required to show a lack of evidence for the other party on an essential element of that party's claim. Adams v. Am. Guar. & Liab. Ins. Co., 233 F.3d 1242, 1246 (10 Cir. 2000). If a movant meets this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). In doing so, the nonmoving party may not rest upon its pleadings, but rather must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the non-movant." Mitchell v. City of Moore, Okla., 218 F.3d 1190, 1197-98 (10thCir. 2000). To accomplish this, the facts "must be identified by reference to an affidavit, a deposition transcript, or a specific exhibit incorporated therein." Adams, 233 F.3d at 1246. Rule 56©(4) provides that opposing affidavits must be made on personal knowledge and shall set forth such facts as would be admissible in evidence. Conclusory opinions, allegations unsupported by specific facts, or speculation will not satisfy this burden. Id. See also, Argo v. Blue Cross and Blue Shield of Kan., Inc., 452 F.3d 1193, 1199 (10th Cir. 2006).
As recognized by the court in Celotex Corp. v. Catrett, Ml U.S. 317, 327, summary judgment is not a "disfavored procedural shortcut" to the contrary; it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Id. In responding to a motion for summary judgment, "a party cannot rest on ignorance of facts, on speculation, or on suspicion and may not escape summary judgment in the mere hope that something will turn up at trial." Conaway v. Smith, 853 F.2d 789, 794 (10th Cir. 1988). It is with these standards in mind that Defendants' motions for summary judgment are considered.
On August 15, 2011, Plaintiffs filed their Complaint in this action. The underlying facts giving rise to Plaintiffs' claims are straightforward. The Robert L. Kroenlein Trust, initially and now through Chugwater Brewing Company, Inc., owns and operates J & B Liquors, a bar and liquor store in Torrington, Wyoming. Until his death in November of 2004, Robert L. Kroenlein was the primary manager and operator. Upon his death hisdaughter, Deborah Alden, as the Successor Trustee was the primary person charged with operating J & B Liquors, but the overall operation and management was through her husband and the lawyer for Robert L. Kroenlein, Eric Alden.
As with any Wyoming liquor store, from time to time it would receive deliveries, typically twice a week, of particular brands of beer from the licensed distributor of that brand. (See Exhibit 2, Eric Alden Depo. at 11-16). This case arises out of a situation in which an employee and salesman Gary Bruce Kirchhefer (hereinafter "Kirchhefer") for the beer distributor (Orrison Distributing Ltd. or "Orrison") would order and charge J & B Liquors for excess products, primarily beer. (Doc 105, Kirchhefer Depo. at 43-44, 52-54). Kirchhefer would then turn around and give away or sell this product to other bars in his Orrison sales territory at a discount, pocketing the proceeds for his own.1 Ultimately, in April 2008, Kirchhefer was fired from Orrison for his theft. In August of 2010, Kirchhefer was charged and pleaded guilty to a felony larceny by a bailee and three misdemeanor counts of larceny by bailee. (See Doc 105, Exhibit No. 7, Sworn Interview2 of Gary Kirchhefer at 2-3). The two primary bars that Kirchhefer resold the beer he hadstolen from J & B Liquors were the Commodore Bar, Inc., (hereinafter "Commodore") in Wheatland, Wyoming, owned by Rick Bowen, and the Silver Dollar Bar, Inc. (hereinafter "Silver Dollar"), owned by Larry R. Halligan, the additional Defendants herein.
According to Kirchhefer he began stealing beer from J & B Liquors in late 2005. (Doc 105 at 36-37). As the beer salesman, Kirchhefer would order (presale) the beer for J & B Liquors the day before it was delivered, making an electronic order via his computer to Orrison. Id. at 44-45. The following day a delivery truck driver for Orrison would off-load the beer in the alley next to the back door of J & B Liquors. Id. at 44. Kirchhefer would then arrive and dismiss the delivery driver and "kindly" take what J & B actually needed into the store coolers and put the excess beer, ordered and paid for by J & B, into his van. Id. at 45-46. Kirchhefer would then take the beer he had stolen from J & B Liquors and give it away to customers in exchange for keeping and ordering some of the less popular products, such as Tequiza or sell it. (Depo. at 47-48).
Kirchhefer testified that part of his rate of pay was dependent upon keeping "shelf space" with Orrison's brand of products. One of those products was Tequiza, but unlike Budweiser and Bud Light, it typically would not sell quickly and often times became dated. Id. at 48. To keep the shelf space for the Tequiza, Kirchhefer would give the bar owner a free case or two of beer (he had stolen from J & B Liquors) so long as they kept ordering a fresh case of Tequiza or other dated, unpopular product. Id. at 53-54. Kirchhefer then took the dated beer and usually gave it away, instead of sending it backto Orrison's Cheyenne warehouse.3 Id. at 48-49. There were also occasions that Kirchhefer would order extra slow selling brands of beer on J & B's order which he then stole and took to another bar to replace, at no cost, that bar's slow moving beer, keeping the dated beer to give away and the shelf space. Id. at 52-55. Kirchhefer would also "sell" the beer he had stolen from J&B Liquors to other bars, at a discount. In selling this stolen beer to other bars Kirchhefer would represent that he had a five percent breakage that allowed him to give them a better deal or discount on the beer:
Q. So how did you explain selling it half price?
A. I told them that the company was allowed a 5 percent breakage. We broke beer, and we were allowed so much for breakage and stuff like that. Stuff like that happened, but it wasn't broken.
Q. So wouldn't you think if you told somebody we get so much for breakage, yet, it's obvious that it's not - I mean, not broken, shouldn't somebody know that you are basically telling them, look, I got room to steal, when you say we get 5 percent for breakage? You are basically saying I have got room to fudge on this deal, so I can give this to you.
A. I just made it sound like I could give them a better deal.
(Kirchhefer Statement at 36-37). Two of the bars that got a "better deal" were the Commodore Bar and Silver Dollar Bar.
Part of Kirchhefer's three county sales territory included the Commodore bar in Wheatland, owned by Bowen and the Silver Dollar in Lusk, owned by Halligan. Around 2005 Kirchhefer began making presales to Halligan and approached him about purchasing discounted beer. Mr. Kirchhefer testified in his sworn statement, as to selling the stolen beer to Mr. Halligan:
(Id. at 50-51). Mr. Halligan testified that Kirchhefer approached him in 2006 and told him he had some "swapped-out beer or traded-out beer in the warehouse" that he could purchase for a discount. (Halligan Depo. at 34-35.) Halligan believed that this...
To continue reading
Request your trial