Opinion
No. 107,440.
2013-07-5
Kyle L. LARSON, d/b/a/ Ringneck Haven, Appellant, v. George VAN WYCK, Appellee.
Appeal from Reno District Court; Trish Rose, Judge. Kyle L. Larson, appellant pro se. James S. Oswalt, of Hutchinson, for appellee.
Appeal from Reno District Court; Trish Rose, Judge.
Kyle L. Larson, appellant pro se. James S. Oswalt, of Hutchinson, for appellee.
Before STANDRIDGE, P.J., ARNOLD–BURGER and POWELL, JJ.
MEMORANDUM OPINION
PER CURIAM.
Kyle L. Larson, d/b/a/ Ringneck Haven, filed a breach of contract claim against George Van Wyck alleging that Van Wyck had failed to pay the remaining balance due after Larson had hosted a deer hunt for Van Wyck and his family. Van Wyck filed a counterclaim, seeking to cancel the contract based on Larson's failure to comply with its terms and claiming entitlement to damages. Larson appeals the district court's judgment in favor of Van Wyck, arguing that the district court's finding that he breached the contract is not supported by the evidence and contending that any breach on his part was not material enough to warrant rescission of the contract. Larson also contends the district court erred in awarding certain damages to Van Wyck. For the reasons stated below, we affirm.
Facts
In April 2010, Van Wyck attended the Wannamacher's Gun Show in Tulsa, Oklahoma. Van Wyck lived in Tulsa and was an avid deer hunter. Van Wyck spoke with Larson, who had a booth set up advertising hosted deer hunts in Pretty Prairie, Kansas. Van Wyck had been looking to shoot a trophy buck and was interested in the deer horns Larson had on his display table. Van Wyck expressed interest in taking his son, Garth, and his grandson, Garrett, to Kansas for a hunt. Larson gave Van Wyck an information sheet about his deer hunting business, Ringneck Haven. The information sheet indicated that Larson provided approximately 2,000 acres for hunting, plus an additional 400 acres exclusively for deer hunting. The cost for a hunt was $2,250 per person. A down payment of $750 per person was required; the down payment was nonrefundable unless the hunters were not able to obtain a deer tag. Van Wyck and Larson spoke about the cost and the fact that Van Wyck would have to acquire Kansas hunting licenses for the group before they could do any definite planning.
Van Wyck subsequently applied for and purchased Kansas hunting licenses and deer tags for himself, Garth, and Garrett. Van Wyck then spoke to Larson about hosting a hunt. Van Wyck advised Larson that he would definitely need a guide for the hunt. Van Wyck also requested access to an all-terrain vehicle (ATV) because he was handicapped and required the use of a cane to walk and Garrett was on crutches. Larson told Van Wyck that he had tree stands, tower blinds, ground blinds, and deer feeders. Van Wyck and Larson entered into an oral agreement, and Van Wyck sent Larson a check in the amount of $2,250 to cover the cost of the down payment. Under the terms of the agreement and the licenses obtained, the group could hunt for 12 days during rifle season. They planned to hunt for 5 days beginning on December 1, 2010. Larson hired Dan Kristek to guide the hunt for as many days as necessary. Kristek had hunting experience but had never guided a hunt for Larson.
Sometime prior to the hunt, Van Wyck traveled to Pretty Prairie from Tulsa in order to inspect the hunting property. Van Wyck and Larson discussed adding some additional blinds for the upcoming hunt; Van Wyck later provided Larson with two ground blinds of his own.
Van Wyck, Garth, and Garrett arrived in Pretty Prairie early on the morning of December 1. Upon their arrival, no one was there to greet them so the hunt was postponed until that afternoon when Kristek showed up without Larson. Van Wyck never saw an ATV that day, which forced him and Garrett to walk about 100 yards to a deer stand. The paths to the deer stands were unkempt and had not been mowed. Additionally, the group never saw the deer stands that Larson had advertised would be available. The tower stand and shed that were provided seemed inadequate, and the deer feeders appeared empty. Some of the blinds were not set up properly. The two blinds Van Wyck had provided to Larson were not set up until the second day of the hunt.
On the second day, Larson came to the hunting grounds with an ATV. Van Wyck claimed that when he attempted to get inside, Larson told him the ATV was being used to take a decoy somewhere else and that the blind was close enough that he could walk. Van Wyck fell down while walking to the blind. Van Wyck and Garrett never used the ATV that day, but Larson directed Garth to drive it to the location of his stand.
At the end of the second day, Kristek told Van Wyck that he had an appointment the following day and did not specify when he would return. The group was unfamiliar with the grounds and uncomfortable with the prospect of accidentally entering someone else's property. Van Wyck contacted Larson to express his frustration that they were going to be left without a guide, as well as his overall dissatisfaction with how the hunt was going. Larson acted surprised that Kristek would not be available the next day but did not offer to have another guide lead the hunt. Van Wyck indicated that he was not going to pay for the hunt if no guide was available; he offered to let Larson keep the down payment and the two blinds he had provided. Van Wyck and his family left Pretty Prairie the following day.
On December 10, 2010, Larson filed a pro se petition seeking to recover the $4,500 balance Van Wyck owed for the deer hunt. Van Wyck filed an answer and a counterclaim, denying that any balance was due to Larson and alleging that Larson had breached the parties' contract in several ways, including his failure to provide an ATV and his failure to provide a guide on the third day of the hunt. As a result of Larson's breach, Van Wyck sought to cancel the contract and claimed entitlement to $4,921, which included a refund of the $2,250 down payment, $1,215 for the cost of three hunting licenses, mileage in the amount of $459 for two trips from Tulsa to Pretty Prairie, and loss of time and income in the amount of $997. In response, Larson denied that Van Wyck was entitled to recover on the basis of his counterclaim and later moved for summary judgment on both his petition and Van Wyck's counterclaim.
The district court denied Larson's summary judgment motion, and the case proceeded to a bench trial. After hearing testimony from both parties, the district court determined that Larson had materially breached the terms of the contract by failing to provide Van Wyck with an ATV and a guide and that Van Wyck was entitled to foreseeable damages as a result. The court entered judgment in favor of Van Wyck in the amount of $3,924, which included $2,250 for the down payment, $1,215 for the hunting licenses, and $459 for mileage. Following argument on Larson's motion to alter or amend the judgment, the district court found that Van Wyck was only entitled to mileage for one trip from Tulsa to Pretty Prairie and reduced the mileage award to $230 but otherwise declined to alter or amend its previous judgment.
Analysis
On appeal, Larson challenges the sufficiency of the evidence with respect to the district court's findings that he breached the contract by failing to provide Van Wyck with an ATV and a guide. He also claims that any breach was not material enough to warrant rescission of the contract and the district court should have found that the doctrine of substantial performance applied. Finally, Larson claims the district court erred in awarding Van Wyck damages for mileage expenses and the hunting licenses. Each of these arguments is addressed in turn.
Did the district court err in finding that Larson had materially breached the contract?
Larson argues the district court erred in finding that he materially breached the contract based on its findings that (1) Larson did not provide an ATV for Van Wyck's use and (2) a hunting guide would not be available on the third day of the hunt. Larson claims that these findings are against the weight of the evidence presented at trial.
“When a verdict is challenged as being contrary to the evidence, an appellate court does not reweigh the evidence or pass on the credibility of the witnesses. If the evidence, when considered in the light most favorable to the prevailing party, supports the verdict, the appellate court should not intervene. [Citation omitted.]” Unruh v. Purina Mills, 289 Kan. 1185, 1195, 221 P.3d 1130 (2009).
Larson breached the contract by failing to provide Van Wyck with an ATV and a guide.
A breach of contract occurs “when there is a failure of performance of a duty arising or imposed by agreement.” Northwest Arkansas Masonry, Inc. v. Summit Specialty Products, Inc., 29 Kan.App.2d 735, 738, 31 P.3d 982,rev. denied 212 Kan. 1419 (2001). Whether a party breached a contract is a question of fact. Wichita Clinic v. Louis, 39 Kan.App.2d 848, 868, 185 P.3d 946,rev. denied 287 Kan. 769 (2008). An appellate court reviews the trial court's findings of fact to determine if the findings are supported by substantial competent evidence, and in doing so, the appellate court “does not reweigh the evidence, resolve conflicts within the evidence, or pass on the credibility of witnesses.” Progressive Products, Inc. v. Swartz, 292 Kan. 947, 955, 258 P.3d 969 (2011). Substantial competent evidence is such legal and relevant evidence as a reasonable person might regard as sufficient to support a conclusion. Hodges v. Johnson, 288 Kan. 56, 65, 199 P.3d 1251 (2009).
Larson does not dispute that the terms of the parties' oral agreement required him to provide Van Wyck with an ATV and a guide; rather, he claims that the evidence presented at trial proved that he complied with these terms of the agreement.
At trial, Van Wyck testified that there was no ATV at the hunting site on the first day of the hunt. Garth also testified that he did not see an ATV on the first day. As a result, Van Wyck and Garrett had to walk about 100 yards to the hunting stand. Van Wyck testified that an ATV was present at the hunting site on the second day, but Larson did not let Van Wyck use the ATV because it was being used to take a decoy somewhere else. Instead, Larson told Van Wyck and Garrett that they could walk to the blind because it was close by. Van Wyck fell down while walking to the blind. Van Wyck and Garrett never used the ATV that day, but Larson directed Garth, who did not need the assistance of the ATV, to drive it at one point.
Additionally, Van Wyck testified that at the end of the second day of the hunt, Kristek advised that he would not be available the following day. Kristek did not indicate if or when he would return or whether a replacement guide would be provided. Van Wyck further claimed that when he contacted Larson about Kristek's unavailability the following day, Larson reacted with surprise and did not mention whether he would provide a replacement guide. Garth testified that Kristek told them that he would not be back on the third day and did not think he would be available the rest of the week. Kristek testified that he never told Van Wyck that he would be back later on the third day, that he would be available the following days if necessary, or that another guide would be available because their conversation “never got to that point.” While Larson claimed to be surprised that Kristek would not be able to guide the group on the third day, he admitted that he never told Van Wyck that he would find another guide to replace Kristek.
Although the evidence presented at trial was conflicting with respect to the availability of the ATV and Kristek's guide services, there is substantial competent evidence in the record upon which a reasonable factfinder could have concluded that Larson breached the contract with Van Wyck by failing to adequately provide the use of an ATV and a hunting guide. See Progressive Products, Inc., 292 Kan. at 955 (an appellate court does not reweigh the evidence or pass on the credibility of the witnesses).
Larson's breach was material.
Nevertheless, Larson alleges that any breach on his part was not material enough to warrant rescission of the contract. To that end, Larson claims that the breach did not prevent the purpose of the contract—to provide a deer hunt—from being fulfilled because Van Wyck admitted that he saw several deer during the hunt. Larson contends that Van Wyck could have completed the hunt without the use of an ATV or a guide, but chose not to do so.
A material breach is one where the promisee receives something substantially less or different than what he or she bargained for. Almena State Bank v. Enfield, 24 Kan.App.2d 834, 838, 954 P.2d 724 (1998). Where the failure to perform is so substantial as to defeat the object of the parties in making the agreement, the breach is material, and rescission or cancellation of the contract is warranted. Federal Land Bank of Wichita v. Krug, 253 Kan. 307, 313, 856 P.2d 111 (1993). Stated another way, “[a] party's uncured material breach ... can suspend or discharge the other party's obligation to perform.” Lassiter v. Topeka Unified School Dist. No. 501, 347 F.Supp.2d 1033, 1041 (D.Kan.2004).
Larson's failure to provide an ATV for Van Wyck's use constituted a material breach. At the time of the hunt, Van Wyck was 77 years old, handicapped, and required the use of a cane to walk. Garrett was on crutches and also needed assistance during the hunt. Larson knew that Van Wyck was “somewhat handicapped,” that he and his grandson had difficulty walking, and that having some type of ATV to help them get around was important. Larson admitted that he told Van Wyck that there would be an ATV available for him to use “as much as [Van Wyck] wanted.” Without the use of an ATV, Van Wyck and Garrett had to walk to their hunting locations. On the second day, Van Wyck tripped and fell to the ground. Larson's failure to provide Van Wyck with an ATV at all times during the hunt was substantially less than what Van Wyck had bargained for.
Similarly, Larson's failure to provide a hunting guide on the third day constituted a material breach. Larson admitted that he knew Van Wyck wanted a guide every day of the hunt. Larson's land consisted of 2,400 acres. A hunting day usually starts an hour before sunrise and lasts until after sunset. Van Wyck and his family were not familiar with the area. Under these circumstances, a guide was necessary to help the group navigate the land and take them to the hunting blinds. Hunting without a guide, at times in the dark, would have been difficult and possibly dangerous. Moreover, Van Wyck stated that one of the reasons he entered into the contract with Larson was to have the opportunity to harvest a trophy buck. A guide would have been beneficial to help Van Wyck find one. Van Wyck testified that they would have stayed for the rest of the hunt if a guide would have been available the entire time. Larson's suggestion that Van Wyck did not give him the opportunity to provide a replacement guide lacks merit, as it is unsupported by the record.
Presumably, Van Wyck made the requirements regarding the use of an ATV and a guide a part of his agreement with Larson in order to make the hunt easier and more enjoyable for him and his family, and he likely would not have entered into the contract if Larson had not agreed to these terms. Larson's failure to comply with these requirements was so substantial as to defeat the purpose of the contract and, therefore, constituted a material breach that warranted rescission of the contract.
Larson did not substantially perform under the terms of the contract.
Larson argues that the district court should have considered the doctrine of substantial performance in calculating damages because his alleged breach—failure to provide an ATV and a guide—only affected Van Wyck and Garrett. Larson claims that Garth's hunt was unaffected by any breach and the damages should be prorated accordingly.
Under the principles of contract law, the doctrine of substantial performance provides that a party's performance may be considered complete if the essential purpose of the contract is accomplished and that party has made a good-faith attempt to comply with the terms of the agreement, even though he or she fails to meet the precise terms of the agreement. Dexter v. Brake, 46 Kan.App.2d 1020, 1033, 269 P.3d 846 (2012). “Substantial performance is the antithesis of material breach. If it is determined that a breach is material, it follows that substantial performance has not been rendered.” Almena State Bank, 24 Kan.App.2d 834, Syl. ¶ 3.
As previously discussed, Larson's breach was material, and it obviously affected the entire group. Although Garth did not require use of the ATV, there is nothing in the record to support Larson's assertion that the guide was only needed for Van Wyck and Garrett. The essential purpose of the contract was not accomplished, and there is no indication that Larson ever made a good-faith attempt to comply with the terms of the contract when confronted by Van Wyck. To the contrary, when Van Wyck informed Larson that Kristek would not be available on the third day of the hunt, Larson never indicated that he would provide a replacement guide. As a result, Larson's substantial performance argument fails.
Did the district court properly award damages to Van Wyckfor mileage expenses and the hunting licenses?
Larson contends that the district court erred in awarding damages to Van Wyck based on mileage for the trip to Pretty Prairie from Tulsa and for the cost of the hunting licenses.
A determination whether the district court applied the correct measure of damages is a question of law subject to unlimited review. See Evenson v. Lilley, 43 Kan.App.2d 573, 575, 228 P.3d 420 (2010), aff'd295 Kan. 43, 282 P.3d 610 (2012). But to the extent a damage award implicates the district court's factual findings, we review the record to determine if there was substantial competent evidence to support such findings. See Louisburg Building & Development Co. v. Albright, 45 Kan.App.2d 618, 638, 252 P.3d 597 (2011), rev. granted in part on other grounds March 9, 2012.
As a general rule, a party establishing a material breach of contract is entitled to damages. See Freeto Construction Co. v. American Hoist & Derrick Co., 203 Kan. 741, 747, 457 P.2d 1 (1969). An award of actual damages arising from a breach of contract, however, must be proven with sufficient certainty to justify the award. See State ex rel. Stovall v. Reliance Ins. Co., 278 Kan. 777, 789, 107 P.3d 1219 (2005) (“A party is not entitled to recover damages ‘not the proximate result of the breach of contract and those which are remote, contingent, and speculative in character.’ ”). The basic goal in awarding contract damages is to put the nonbreaching party in as good a position as the party would have been had the breach never occurred, without allowing that party a windfall. See Reliance Ins. Co., 278 Kan. at 789).
Mileage
Larson claims that there is no evidence to support the district court's mileage award of $230 because Van Wyck traveled to Pretty Prairie in Garth's truck, and there was no evidence presented to show that Van Wyck actually paid for this part of the trip or that he reimbursed Garth for this expense.
We find the district court's decision to award Van Wyck the sum of $230 for mileage to and from the hunt is supported by evidence in the record. The record reflects that Van Wyck planned and organized the hunt in order to spend time with his son and grandson. He arranged and set the terms of the contract with Larson, provided the down payment to Larson, and paid for all three hunting licenses. There was direct evidence in the record of the travel expenses. Van Wyck testified that they drove approximately 200 miles from Tulsa to Pretty Prairie (400 miles roundtrip) and that he was requesting reimbursement at 50 cents/mile. In sum, we find substantial competent evidence supports the district court's conclusion that Van Wyck paid the travel expenses at issue, especially since the record is void of any evidence that Garth or any other person paid them.
Hunting Licenses
Larson alleges that Van Wyck is not entitled to reimbursement for the hunting licenses because he purchased them prior to entering into the contract.
A party may seek to recover a reliance interest to be reimbursed for any loss caused by reliance on the contract in order to put the party in as good a position as he or she would have been in had the contract not been made. Source Direct, Inc. v. Mantell, 19 Kan.App.2d 399, 408–09, 870 P.2d 686 (1994) (citing Restatement [Second] of Contracts § 344[b] [1981] ). “ ‘Courts will allow the recovery of such expenditures if the breach of the contract renders those expenditures valueless to the plaintiff, ... and those expenses were foreseeable by the defaulting party at the time the contract was made.’ “ 19 Kan.App.2d at 409 (quoting 22 Am.Jur.2d, Damages § 595, p. 660). “Reliance damages, as with any other type of damages, must be the proximate result of a breach of contract, and damages which are remote, contingent, and speculative in character cannot serve to support a judgment.” MLK, Inc. v. University of Kansas, 23 Kan.App.2d 876, Syl. ¶ 5, 940 P.2d 1158 (1997).
Kansas hunting licenses are obtained by a drawing. Van Wyck testified that during his initial discussion with Larson about the hunt, he told Larson that he would apply for the Kansas hunting licenses and would then contact Larson to book the hunt if he was successful. Larson conceded at trial that it was not unusual for a hunter to first attempt to get a license before sending in a down payment for a hunt. The parties clearly contemplated that Van Wyck would obtain the Kansas hunting licenses prior to the hunt, as the group could not legally hunt on Larson's land without them. Thus, it was necessary for Van Wyck to obtain the licenses prior to entering into the contract with Larson. This expense was reasonably foreseeable to Larson. Additionally, Larson's breach of the contract rendered the Kansas hunting licenses valueless to Van Wyck, as the licenses were only valid for 12 days. At the time Van Wyck rescinded the contract, only 10 days remained, giving him very little time to plan and organize another hunt in Kansas. There is substantial competent evidence to support the district court's award of $1,215 to Van Wyck for the cost of the hunting licenses.
Affirmed.