Snyder v. Lovercheck, 00-261.

• Decision Date: 20 July 2001
• Docket Number: No. 00-261.,00-261.
• Citation: 2001 WY 64,27 P.3d 695
• Parties: Loren SNYDER, Appellant (Plaintiff), v. Ron LOVERCHECK, d/b/a Bear Mountain Land Company, and O.W. Lovercheck and Margaret O. Lovercheck, husband and wife, Appellees (Defendants).
• Court: Wyoming Supreme Court

27 P.3d 695

2001 WY 64

Loren SNYDER, Appellant (Plaintiff), v. Ron LOVERCHECK, d/b/a Bear Mountain Land Company, and O.W. Lovercheck and Margaret O. Lovercheck, husband and wife, Appellees (Defendants).

No. 00-261.

Supreme Court of Wyoming.

July 20, 2001.

Micheal K. Shoumaker of Sheridan, WY; and James N. Wolfe of Cheyenne, WY. Argument by Messrs. Shoumaker and Wolfe, Representing Appellant.

Nancy D. Freudenthal of Davis & Cannon, Cheyenne, WY; and John J. Maier of John J. Maier Law Offices, Torrington, WY. Argument by Ms. Freudenthal and Mr. Maier, Representing Appellees.

Before LEHMAN, C.J., and GOLDEN, HILL, and KITE, JJ., and DAN SPANGLER, D.J. (retired).

HILL, Justice.

[¶ 1] Loren Snyder (Snyder) appeals from the district court's decision to award costs and interest to Ron Lovercheck, d/b/a Bear Mountain Land Company, and O.W. and Margaret O. Lovercheck¹ (collectively "Defendants") on remand from our decision in Snyder v. Lovercheck, 992 P.2d 1079 (Wyo.1999). Snyder also raises specific complaints regarding the particular costs awarded by the district court.

[¶ 2] We affirm in part and reverse in part.

[¶ 3] Snyder presents a single issue for our consideration:

Was the Award of Costs and Interest to the Defendants an Abuse of District Judge's Discretion?

The Defendants did not provide a separate statement of the issue.

BACKGROUND

[¶ 4] A detailed recitation of the factual background to this action can be found in Snyder v. Lovercheck, 992 P.2d 1079 (Wyo.1999) (hereinafter Snyder I). Snyder filed suit against the Defendants alleging breach of contract and negligent and fraudulent misrepresentation in a real estate transaction. The district court granted summary judgment in favor of the Defendants. The contract between the parties contained a clause providing for attorney's fees and costs against a defaulting or breaching party.² The district court awarded attorney's fees and costs to O.W. and Margaret Lovercheck and costs to Ron Lovercheck. Snyder appealed the summary judgment and the award of attorney's fees and costs to this Court. In Snyder I, we affirmed the summary judgment on Snyder's causes of actions but reversed the decision to award the Defendants' attorney's fees and costs. We made the following conclusion in regard to the award of attorney's fees:

Here, the district court made no finding that Snyder breached the contract. While we have said that in the absence of special findings of fact, a district court judgment carries with it every finding of fact which is supported by the evidence, Bishop v. Bishop, 944 P.2d 425, 428 (Wyo.1997) (quoting Deroche v. R.L. Manning Co., 737 P.2d 332, 335 (Wyo.1987)), and a judgment will be affirmed on any legal ground appearing in the record, Bird [v. Rozier,] 948 P.2d [888] at 892 [(Wyo.1997)], there is no evidence in the record on appeal which would support a finding that Snyder did not fulfill his obligation to pay for the farm. Accordingly, we remand to the district court for a determination whether Snyder breached the contract for sale.

992 P.2d at 1091. Our conclusion on the award of costs was similar:

Parties to an agreement are free to bargain for payment of costs, just as they can bargain for payment of attorney's fees. The parties' agreement to an allocation of costs is not subject to the provisions of U.R.D.C. 501.

The contract provided for the payment of "all * * * other expenses * * *." The district court awarded all of the expenses claimed by the Loverchecks in accordance with the agreement, and no argument has been made to this Court that these expenses were unreasonable. The costs, like the award of attorney's fees, however, cannot be awarded absent breach or default by Snyder, and, therefore, we remand this issue to the district court as well.

992 P.2d at 1091-92. (Footnote omitted.)

[¶ 5] On remand, Snyder filed a motion for summary judgment on the issue of costs and attorney's fees on the grounds that he had not breached the contract. The district court agreed that the contract did not prohibit Snyder from filing a claim for fraud, so there was no breach of the contract that would invoke the attorney's fees and costs clause. The court, however, also held that the Snyder I opinion did not preclude an award of costs pursuant to statutory or rule authority if the terms of the contract were inapplicable. The district court awarded the following costs to the Defendants: (1) expert witness costs of $156.25 and $271.25 for travel expenses to Ron Lovercheck pursuant to W.U.R.D.C. 501; (2) deposition expenses under W.U.R.D.C. 501 of $1,315.10 to Ron Lovercheck and $819.90 to O.W. and Margaret Lovercheck; (3) $203.87 in witness fees, service miles and mileage fees to Ron Lovercheck; and (4) interest at 10% per annum pursuant to Wyo. Stat. Ann. § 1-16-102(a) to the Defendants on costs awarded from April 29, 1998, which was the date of the judgment on costs and attorney's fees in Snyder I. Snyder has now appealed the award of costs and interest to the Defendants.

STANDARD OF REVIEW

[¶ 6] An award of costs is reviewed for an abuse of discretion. Snyder, 992 P.2d at 1084; Coulthard v. Cossairt, 803 P.2d 86, 93 (Wyo.1990).

We recently clarified the definition of abuse of discretion when we said the core of our inquiry must reach "the question of reasonableness of the choice made by the trial court." Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998). "Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously." Id. (quoting Byerly v. Madsen, 41 Wash.App. 495, 704 P.2d 1236, 1238 (Wash.App.1985)); Basolo [v. Basolo], 907 P.2d [348] at 353 [(Wyo.1995)]. We must ask ourselves whether the district court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious.

Cobb v. Cobb, 2 P.3d 578, 579 (Wyo.2000) (quoting Thomas v. Thomas, 983 P.2d 717, 719 (Wyo.1999)).

DISCUSSION

[¶ 7] Snyder contends that our decision in Snyder I specifically held that costs could only be awarded on the basis of the contract. Since the district court concluded that he had not breached the contract, Snyder argues it was error for the court to award costs on any other basis. Snyder has misinterpreted our decision in Snyder I. In that appeal, the sole issue before us was whether the Defendants were entitled to an award of attorney's fees and costs under the terms of the contract. The contract provided for an award of attorney's fees and costs in the event either party breached the contract. The district court had issued the award pursuant to the contract terms but had failed to make a specific determination of whether Snyder had breached the contract. We reversed the awards and remanded the matter for the district court to make that determination. Our opinion discusses the awards only in light of the contract between the parties. There is no discussion of an award of costs within the context of other statutory or rule authorities. The reason for that is simple: The only issue before us related to the contract and, hence, there was no need to discuss the propriety of an award under any other authority. This Court decides only those issues that are actually before it. We do not decide issues that are speculative or that are not otherwise properly before us. Over the years, we have adopted mechanisms to ensure that the issues and cases we decide concern real controversies. Southwestern Public Service Company v. Thunder Basin Coal Company, 978 P.2d 1138, 1144 (Wyo.1999) (ripeness and standing); Reno Livestock Corporation v. Sun Oil Company (Delaware), 638 P.2d 147, 154 (Wyo.1981) (mootness and future questions). The language we used in Snyder I was, unfortunately, perhaps not as definite as it should have been. However, the opinion is clear that we did not consider any issues beyond those raised by the parties at that time. Accordingly, our opinion did not preclude the district court from considering the propriety of awarding costs on grounds other than the contract.

[¶ 8] In a related argument, Snyder contends that our opinion at least held that W.U.R.D.C. 501 did not apply. He points to our statement in the opinion that said: "The parties' agreement to an allocation of costs is not subject to the provisions of U.R.D.C. 501." Snyder, 992 P.2d at 1091. Our reference in Snyder I to W.U.R.D.C. 501 was solely in the context of noting that the contract provision was not qualified in any way by that rule. We did not state that recovery was unavailable pursuant to Rule 501 because, as noted above, that issue simply was not before us.

[¶ 9] Next, Snyder argues that we vacated the award of costs to Ron Lovercheck without providing for further proceedings on remand. Snyder notes that our remand was based upon the failure of the district court to make a determination that the contract was breached. He points out that the original award to Ron Lovercheck could not have been based on the contract since he was never a party to it. Therefore, Snyder concludes that we must have vacated his award without providing for any further proceedings on remand.

[¶ 10] In Snyder I, we designated the Defendants as "Ron" for Ron Lovercheck and "the Loverchecks" for O.W. and Margaret. 992 P.2d at 1082. In our discussion remanding the district court's award of costs, we refer only to "the Loverchecks." Id. at 1091-92. The district court treated our remand as reversal on the award of costs to both Ron Lovercheck and O.W. and Margaret Lovercheck. Initially, the district court had awarded Ron Lovercheck $8,746.12 in costs. On remand, that amount was reduced to $1,946.47. Ron Lovercheck has not cross-appealed the district court's revision of the amount of costs to which he is entitled. Therefore, any error by the district court in considering the cost award to Ron Lovercheck...