IN THE SUPREME COURT, STATE OF WYOMING
`
`2014 WY 159
`
`December 10, 2014
`
` OCTOBER TERM, A.D. 2014
`
`December 10, 2014
`
`DAREN SINGER, individually and in his capacity as
`a manager of Beartooth Mountain Springs, LLC;
`CLARK’S FORK CANYON SPRINGS, LLC; and
`SUNLIGHT SPRINGS DISTRIBUTION, LLC,
`
`Appellants
`(Defendants),
`
`v.
`
`PHILIPPE LAJAUNIE, individually and derivatively
`as a member of Beartooth Mountain Springs, LLC
`and AMERICAN SUMMITS, LLC,
`
`Appellees
`(Plaintiffs).
`PHILIPPE LAJAUNIE, individually and derivatively
`as a member of Beartooth Mountain Springs, LLC
`and AMERICAN SUMMITS, LLC,
`
`Appellants
`(Plaintiffs),
`
`v.
`
`DAREN SINGER, individually and in his capacity as
`a manager of Beartooth Mountain Springs, LLC;
`CLARK’S FORK CANYON SPRINGS, LLC; and
`SUNLIGHT SPRINGS DISTRIBUTION, LLC,
`
`Appellees
`(Defendants).
`
` S-14-0004
`
`S-14-0005
`
`

`
`Appeal from the District Court of Park County
`The Honorable Steven R. Cranfill, Judge
`
`Representing Daren Singer, Clark’s Fork Canyon Springs, LLC, and Sunlight Springs
`Distribution, LLC:
`Weston W. Reeves and Anna M. Reeves Olson, Park Street Law Offices, Casper,
`Wyoming. Argument by Ms. Reeves Olson.
`
`Representing Philippe Lajaunie and American Summits, LLC:
`Larry B. Jones and Colin M. Simpson, Burg, Simpson, Eldredge, Hersh & Jardine,
`PC, Cody, Wyoming; Brian K. Matise, Burg, Simpson, Eldredge, Hersh &
`Jardine, PC, Englewood, Colorado. Argument by Mr. Matise.
`
`Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.
`
`NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers
`are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming
`82002, of any typographical or other formal errors so that correction may be made before final publication in
`the permanent volume.
`
`

`
`BURKE, Chief Justice.
`
`[¶1] This dispute arose from an unsuccessful business venture involving the bottling
`and sale of “premium bottled mineral water” by Beartooth Mountain Springs, LLC.
`Philippe Lajaunie and Daren Singer were owners and co-managers of Beartooth.
`Mr. Singer ran the day to day aspects of the business. In 2011, Mr. Lajaunie1 filed suit
`against Mr. Singer2 claiming that Mr. Singer had breached his fiduciary duties as a
`manager and member of Beartooth. Mr. Singer responded with a counterclaim based on
`a theory of promissory estoppel. He subsequently sought to amend the counterclaim to
`allege a cause of action based on fraud.
`
`[¶2] The district court granted summary judgment in favor of Mr. Lajaunie on
`Mr. Singer’s counterclaim, and denied Mr. Singer’s motion to amend his counterclaim to
`add a claim of fraud. In Docket No. S-14-0004, Mr. Singer challenges the district court’s
`decisions on these motions. In the trial on Mr. Lajaunie’s claims, the jury awarded
`$14,604.63 in damages. In Docket No. S-14-0005, Mr. Lajaunie seeks a new trial
`contending that the district court admitted irrelevant evidence which improperly
`influenced the jury and negatively impacted the jury verdict. We reverse and remand for
`further proceedings in both dockets.
`
`[¶3]
`
`In Docket No. S-14-0004, Mr. Singer presents these issues:
`
`ISSUES
`
`Did the district court err by granting summary
`1.
`judgment to Mr. Lajaunie on Mr. Singer’s promissory
`estoppel counterclaim?
`
`Did the district court err in finding that Mr. Singer’s
`2.
`proposed amended counterclaim would not withstand a
`motion to dismiss?
`
`Did the district court abuse its discretion when it
`3.
`denied Mr. Singer’s request to delay consideration of
`
`
`
`1 Mr. Lajaunie sued both in his personal capacity and in his capacity as a member of Beartooth. Our
`references to Mr. Lajaunie in this opinion include both capacities unless otherwise noted. The other
`plaintiff, American Summits, LLC, is a limited liability company. Mr. Lajaunie is a member and chief
`executive officer of American Summits.
`
`2 Also sued as defendants were Clark’s Fork Canyon Springs, LLC, and Sunlight Springs Distribution,
`LLC. Mr. Singer is a member and the manager of both companies.
`
`1
`
`

`
`Mr. Lajaunie’s motion for summary judgment until after
`discovery was completed?
`
`In Docket No. S-14-0005, Mr. Lajaunie presents issues that we summarize as
`[¶4]
`follows:
`
`Did the district court abuse its discretion by admitting
`1.
`irrelevant evidence that prejudiced Mr. Lajaunie?
`
`FACTS
`
`In the 1980s and 1990s, Mr. Singer spent considerable time and effort analyzing
`[¶5]
`the water from springs located on his family’s ranch near Clark, Wyoming, and learning
`how to operate a premium bottled water business. In 2005, he and his brother, Steve
`Singer, acquired ownership of the ranch and placed it in a limited liability company,
`Clark’s Fork Canyon Springs, LLC. They also formed Yellowstone Headwaters, LLC, a
`company that hand-bottled spring water for sale.
`
`In 2006, Mr. Lajaunie, a restaurateur from New York, ordered some Yellowstone
`[¶6]
`Headwaters spring water. He had been interested for some time in establishing his own
`brand of premium-quality bottled spring water, and found the Yellowstone Headwaters
`product promising. He contacted Mr. Singer, and the two agreed to form a new business
`venture. The parties formed Beartooth Mountain Springs, LLC, in 2007. Mr. Lajaunie
`owned 40% of the company, Mr. Singer 30%, Yellowstone Headwaters 20%, and
`Mr. Singer’s brother 10%. In exchange for their ownership interests, Mr. Lajaunie
`contributed $300,000, and Mr. Singer and his brother contributed “knowledge, know
`how, contacts, relationships and business acumen.” Yellowstone Headwaters contributed
`access to the spring water.
`
`[¶7] Mr. Lajaunie and Mr. Singer served as co-managers for Beartooth, but Mr. Singer
`was responsible for running its day-to-day operations, and had control of Beartooth’s
`bank accounts and financial records. The Beartooth office was located in Mr. Singer’s
`home, and Mr. Singer used some of his personal vehicles when conducting Beartooth
`business. Mr. Lajaunie took a more passive role. Shortly after Beartooth was formed, it
`entered into a distribution agreement with American Summits, LLC. American was to
`purchase bottled water from Beartooth for retail distribution.
`
`In 2008, Beartooth purchased Edelweiss, Inc., a company that owned and operated
`[¶8]
`a bar, convenience store, and gas station located near the Beartooth bottling plant in
`Clark, Wyoming. Beartooth purchased Edelweiss to promote the spring water and as a
`staging area for future shipments by truck. There was a lease agreement between
`Beartooth and Edelweiss, but according to Mr. Singer, Edelweiss could never afford to
`pay Beartooth because it never made a profit.
`
`2
`
`

`
`In May of 2009, Beartooth was in need of additional funds, and its members
`[¶9]
`agreed to contribute more capital. Mr. Lajaunie agreed to contribute $74,376, but when it
`came time to make the payment, Mr. Lajaunie gave himself credit for a $54,768 loan he
`had previously made to Beartooth. As a result, his cash contribution was in the amount
`of $19, 608.
`
`[¶10] Also in 2009, Beartooth applied for a bank loan to allow it to expand its
`operations. The bank, in reviewing the loan, sought information on potential markets and
`sales. Mr. Lajaunie sent an email message stating, “in terms of volume, I guarantee one
`truck a day (14,400 bottles), 5 days a week. . . . I can sign a yearlong recurrent Purchase
`Order with no problem.” The loan of $875,000 was finalized in August of 2009. The
`bank required Mr. Lajaunie to execute an unlimited personal guarantee of the loan, and
`his company, American Summits, placed a $46,000 certificate of deposit as collateral for
`the loan. In addition, Mr. Singer and his brother agreed to pledge the Singer Ranch as
`collateral.
`
`[¶11] Although Mr. Singer had anticipated that Mr. Lajaunie, through American
`Summits, would begin purchasing Beartooth water soon after the distribution agreement
`was finalized in 2007, the first order was not made until January of 2010. When the
`water was delivered to New York, however, several bottles were frozen, and American
`Summits refused to pay for the shipment.
`In September of 2010, American Summits
`ordered another truckload of Beartooth water. When it arrived, American Summits again
`refused to pay for the shipment. Mr. Lajaunie complained that the water had a musty
`smell, labels were off, water levels were inconsistent, and the carbonation was irregular.
`
`[¶12] At some point, because Beartooth was not doing well financially, Mr. Singer
`formed Sunlight Springs Distribution, LLC, and planned to sell Beartooth water through
`that company. Mr. Singer also planned for Sunlight Springs to loan Beartooth money to
`allow Beartooth to make loan payments to the bank. Mr. Singer did not inform
`Mr. Lajaunie about the creation of Sunlight Springs until several months after it went into
`business.
`
`[¶13] As mentioned above, Mr. Singer ran Beartooth’s day-to-day operations, and he
`had control of Beartooth’s bank accounts and financial records. In June of 2010,
`Mr. Lajaunie
`ca m e t o W y oming
`to
`review Beartooth’s financial documents.
`Mr. Lajaunie became concerned that Mr. Singer had been using Beartooth funds to pay
`personal expenses. After discussing these concerns with Mr. Singer, Mr. Lajaunie claims
`that Mr. Singer cut off his access to Beartooth’s financial records. Mr. Singer’s version is
`that he took that step because Mr. Lajaunie had unilaterally charged Beartooth $4,500
`“for his unwanted ‘bookkeeping services.’”
`
`[¶14] The bank eventually foreclosed on Beartooth’s assets and collateral. Mr. Lajaunie
`
`3
`
`

`
`purchased the Beartooth assets from the bank, along with the Singer Ranch. As of the
`date of trial, he was the owner of both.
`
`In his complaint, filed in March of 2011, Mr. Lajaunie claimed that Mr. Singer
`[¶15]
`breached his fiduciary duties by using Beartooth company funds to pay for insurance on
`his personal vehicles, insurance and utilities for his home, and accounting services for
`Clark’s Fork Canyon Springs. Mr. Lajaunie further contended that Mr. Singer had failed
`to collect rent from Edelweiss, and that his creation of Sunlight Springs led to lost income
`and business opportunities for Beartooth.
`
`[¶16] As part of his counterclaim, Mr. Singer contended that Mr. Lajaunie’s statement,
`“I guarantee one truck a day,” was a promise that induced Mr. Singer to take out the bank
`loan and pledge the ranch as collateral. Mr. Singer asserted that Mr. Lajaunie had
`breached the promise by failing to buy the water, ultimately causing Beartooth to default
`on the bank loan and fail as a business. In September of 2012, Mr. Lajaunie moved for
`summary judgment on Mr. Singer’s counterclaim, arguing that his “guarantee” was not a
`promise, but only his prediction of the potential market for Beartooth water. He also
`asserted that Mr. Singer could not have relied on his statement because it was made after
`the loan application had been submitted. Mr. Singer opposed summary judgment on his
`promissory estoppel claim, and also moved to amend his counterclaim to add a claim of
`fraud and to include his brother as a counterclaimant.
`
`[¶17] The district court held a hearing on the motions in January of 2013. Less than a
`month later, Mr. Singer supplemented his opposition to summary judgment and motion to
`amend the counterclaim with evidence purporting to show that although Mr. Lajaunie had
`refused to pay for the two shipments of Beartooth water, he had actually sold that water
`in his restaurants. Mr. Singer asserted that this provided further support for his
`promissory estoppel and fraud counterclaims. In February of 2013, the district court
`issued a ruling granting summary judgment in favor of Mr. Lajaunie on Mr. Singer’s
`promissory estoppel counterclaim, and denying Mr. Singer’s motion to amend the
`counterclaim.
`
`[¶18] A three-day jury trial was held in May of 2013 on Mr. Lajaunie’s claims against
`Mr. Singer. The district court had previously ruled on summary judgment that
`Mr. Singer had breached his fiduciary duties by using Beartooth funds to pay for
`accounting services for Clark’s Fork Canyon Springs, LLC. On this claim, the jury
`awarded damages of $1,604.63 to Beartooth, but no damages to Mr. Lajaunie personally.
`The district court had also ruled that Mr. Singer had breached his fiduciary duties by
`interfering with Beartooth’s business opportunities when he formed Sunlight Springs
`Distribution, LLC. On this claim, the jury awarded no damages. The jury found that
`Mr. Singer had breached his fiduciary duties by using Beartooth assets to benefit
`Edelweiss, Inc. It awarded $13,000 in damages to Beartooth, but no damages to
`Mr. Lajaunie. The jury found that Mr. Singer had not breached his fiduciary duties by
`
`4
`
`

`
`using Beartooth assets to pay for home utility expenses or personal automobile expenses,
`and it found that Clark’s Fork Canyon Springs and Sunlight Springs Distribution had not
`been unjustly enriched by Mr. Singer’s conduct. The district court entered judgment in
`accordance with the jury’s verdict. Both parties filed timely appeals.
`
`DISCUSSION
`
`A.
`
`Docket No. S-14-0004
`
`1.
`
`Promissory Estoppel
`
`In his first issue, Mr. Singer challenges the district court’s grant of summary
`[¶19]
`judgment against him on his promissory estoppel claim. We review a district court’s
`summary judgment decision using the following standard of review:
`
`Summary judgment is appropriate when there are no
`genuine issues of material fact and the moving party is
`entitled to judgment as a matter of law. W.R.C.P. 56(c); Metz
`Beverage Co. v. Wyoming Beverages, Inc., 2002 WY 21, ¶ 9,
`39 P.3d 1051, 1055 (Wyo. 2002). “A genuine issue of
`material fact exists when a disputed fact, if it were proven,
`would establish or refute an essential element of a cause of
`action or a defense that the parties have asserted.” Id.
`Because summary
`judgment
`involves a purely
`legal
`determination, we undertake de novo review of a trial court’s
`summary judgment decision. Glenn v. Union Pacific R.R.
`Co., 2008 WY 16, ¶ 6, 176 P.3d 640, 642 (Wyo. 2008).
`
`Jacobs Ranch Coal Co. v. Thunder Basin Coal Co., LLC, 2008 WY 101, ¶ 8, 191 P.3d
`125, 128-129 (Wyo. 2008). We consider the record from a viewpoint most favorable to
`the party opposing summary judgment, giving to him all favorable inferences that can be
`drawn reasonably from the facts set forth in the affidavits, depositions, and other material
`properly appearing in the record. Lever v. Community First Bancshares, Inc., 989 P.2d
`634, 637 (Wyo. 1999).
`
`[¶20] Promissory estoppel is an equitable remedy for detrimental reliance upon a
`promise that does not rise to the level of a formal contract. Michie v. Board of Trustees
`of Carbon County School Dist. No. 1, 847 P.2d 1006, 1009 (Wyo. 1993).
`
`“Promissory estoppel is a doctrine incorporated in the law of
`contracts.” B & W Glass, Inc. v. Weather Shield Mfg., Inc.,
`829 P.2d 809, 813 (Wyo. 1992). Its general theory is that,
`“‘[i]f an unambiguous promise is made in circumstances
`
`5
`
`

`
`calculated to induce reliance, and it does so, the promisee if
`hurt as a result can recover damages.’” Id. (quoting Goldstick
`v. ICM Realty, 788 F.2d 456, 462 (7th Cir. 1986)).
`. . . The
`elements of promissory estoppel are:
`
`“(1) the existence of a clear and definite promise
`which the promisor should reasonably expect to induce
`action by the promisee; (2) proof that the promisee
`acted to its detriment in reasonable reliance on the
`promise; and (3) a finding that injustice can be avoided
`only if the court enforces the promise.”
`
`City of Powell v. Busboom, 2002 WY 58, ¶ 8, 44 P.3d 63, 66
`(Wyo. 2002) (quoting Roussalis[ v. Wyoming Med. Ctr., Inc.],
`4 P.3d [209,] 253 [(Wyo. 2000)]). The party asserting
`promissory estoppel has the burden of establishing each
`element under a burden of strict proof. Busboom, 2002 WY
`58, ¶ 8, 44 P.3d at 66. The first two elements are questions of
`fact for the fact-finder; the third element is a question of law
`Id.; Loya v. Wyoming Partners of Jackson
`for the court.
`Hole, Inc., 2001 WY 124, ¶ 22, 35 P.3d 1246, 1254 (Wyo.
`2001).
`
`Birt v. Wells Fargo Home Mortg., Inc., 2003 WY 102, ¶ 26, 75 P.3d 640, 651 (Wyo.
`2003).
`
`[¶21] Mr. Singer contends that Mr. Lajaunie made a clear and definite promise when he
`informed the bank, in connection with the loan, that “in terms of volume, I guarantee one
`truck a day (14,400 bottles), 5 days a week. . . . I can sign a yearlong recurrent Purchase
`Order with no problem.” Mr. Lajaunie insists that the statement was not a promise, but
`“only a prediction of what the market fortunes might bring when the facility was
`operating and able to sell product to the nationwide market.”
`
`[¶22] The district court ruled that, whether or not this statement and others constituted
`clear and definite promises, Mr. Singer could not have relied upon them:
`
`The evidence on this issue is scarce. An email from
`Mr. Lajaunie to Mr. Singer . . . dated January 8, 2009 states,
`“I guarantee one truck a day (14,400 bottles), 5 days a week,
`with no distributor involved.” However, an email dated
`February 24, 2009 from Mr. Lajaunie to Mr. Singer and [the
`bank] states[,] “it is immensely helpful to know that the loan
`
`6
`
`

`
`was approved in principle, with an amount ($850K) that will
`enable us to produce and ship a profitable flow of water.” . . .
`
`From the dates of these emails, the Court will have to
`agree with [Mr. Lajaunie] that the guarantee of one truckload
`of water per day was made while the application for the loan
`was already pending. [Mr. Singer] does not refute or clarify
`timing in his brief, and consequently has not met his burden
`of proof. Mr. Singer cannot claim he relied on this guarantee
`after he already agreed to the [bank] loan.
`
`We would agree with the district court that the evidence on this issue is “scarce.” There
`is no question that a loan application was submitted by Beartooth, but the specific date of
`that application has not been identified by the parties. Our review of the record has failed
`to disclose the date of the application. While it appears that the email messages were sent
`after the loan application process had begun, we are unable to ascertain the status of the
`loan at the time the email messages were sent. It is undisputed that Mr. Singer agreed to
`pledge the ranch as collateral, but from this record, we are unable to determine when that
`decision was made.
`
`[¶23] Mr. Singer ultimately must prove reliance if he is to succeed in his promissory
`estoppel claim. However, it was Mr. Lajaunie who moved for summary judgment, and at
`that point, he had the burden to prove that there were no genuine issues of material fact
`regarding Mr. Singer’s reliance. Verschoor v. Mountain West Farm Bureau Mut. Ins.
`Co., 907 P.2d 1293, 1297 (Wyo. 1995). As we have explained before, on a summary
`judgment motion, the movant has the burden of establishing his prima facie case. Only
`then does the burden shift to the opposing party to establish through “specific facts” that
`a material question of fact remains. Sierra Club v. Wyo. Dep’t of Environmental Quality,
`2011 WY 42, ¶ 25, 251 P.3d 310, 317 (Wyo. 2011).
`
`[¶24] Mr. Lajaunie did not carry that burden. Mr. Singer contended that he relied on
`Mr. Lajaunie’s January 8, 2009 email message when he agreed to pledge the Singer
`Ranch as collateral for the Beartooth loan. In order to establish that there was no genuine
`issue regarding detrimental reliance, it was incumbent upon Mr. Lajaunie to establish the
`date of the loan application, and when Mr. Singer agreed to pledge his ranch as collateral.
`The email messages relied upon by the district court are conclusive only if the terms of
`the loan had been agreed to prior to the emails. Mr. Lajaunie did not produce any
`evidence establishing the date of the loan application, whether any loan agreement had
`been reached at the time of the emails, or when Mr. Singer made the decision to pledge
`the ranch as collateral. It may be that Mr. Lajaunie can supply the missing dates and
`establish that he is entitled to summary judgment in this case. On the record before us
`now, however, we must conclude that the district court erred in granting summary
`judgment on the promissory estoppel claim.
`
`7
`
`

`
`2.
`
`Motion to Amend Counterclaim
`
`[¶25] As his second issue, Mr. Singer contends that the district court erred when it
`denied his motion to amend the counterclaim to add a claim of fraud and to add
`Mr. Singer’s brother as a counterclaimant.
`
`The law in Wyoming is well settled that the decision to
`allow amendment to pleadings is vested within the
`sound discretion of the district court. That decision
`will be reversed only for an abuse of discretion shown
`by clear evidence.
`
`Ekberg v. Sharp, 2003 WY 123, ¶ 9, 76 P.3d 1250, 1253
`(Wyo. 2003). Leave to amend pleadings “shall be freely
`given when justice so requires.” W.R.C.P. 15(a). We have
`identified the “proper test as to what the trial court should
`consider when an amendment is proffered” to be the
`following:
`
`“*** If the underlying facts or circumstances relied
`upon by a plaintiff may be a proper subject of relief, he
`ought to be afforded an opportunity to test his claim on
`the merits. In the absence of any apparent or declared
`reason – such as undue delay, bad faith or dilatory
`motive on the part of the movant, repeated failure to
`cure deficiencies by amendments previously allowed,
`undue prejudice to the opposing party by virtue of
`allowance of the amendment, futility of amendment,
`etc. – the leave sought should, as the rules require, be
`‘freely given.’ ***”
`
`Beaudoin v. Taylor, 492 P.2d 966, 970 (Wyo. 1972) (quoting
`Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9
`L.Ed.2d 222 (1962)).
`
`Armstrong v. Hrabal, 2004 WY 39, ¶ 11, 87 P.3d 1226, 1230-1231 (Wyo. 2004). The
`same standard applies when a counterclaimant seeks to amend a counterclaim. See
`Hawkeye-Security Ins. Co. v. Apodaca, 524 P.2d 874, 879 (Wyo. 1974) (A counterclaim,
`“because it asks for affirmative relief, casts plaintiff-type burdens upon
`the
`counterclaimant.”).
`
`[¶26] The elements of fraud are:
`
`8
`
`

`
`(1) the defendant made a false representation intended
`to induce action by the plaintiff; (2) the plaintiff
`reasonably believed the representation to be true; and
`(3) the plaintiff relied on the false representation and
`suffered damages.
`
`Birt, ¶ 42, 75 P.3d at 656.
`In order to prove intentional
`misrepresentation, the plaintiff must show that the
`misrepresentation was made intentionally, with knowledge of
`its falsity, or that the maker of the misrepresentation was at
`least aware that he did not have a basis for making the
`statement. Id.; Restatement (Second) of Torts § 526 (1977).
`Fraud must be proven by clear and convincing evidence, as
`opposed to by a preponderance of the evidence for negligent
`misrepresentation claims. Birt, ¶ 42, 75 P.3d at 656. Fraud
`must be pled with particularity. W.R.C.P. 9(b).
`
`Excel Construction, Inc. v. HKM Engineering, Inc., 2010 WY 34, ¶ 33, 228 P.3d 40, 48-
`49 (Wyo. 2010).
`
`[¶27] The proposed fraud counterclaim rested on essentially the same statements that
`were at issue in the promissory estoppel counterclaim, including Mr. Lajaunie’s
`“guarantee” of purchasing a truckload of water per day. Mr. Singer also alleged that
`Mr. Lajaunie planned to take over Beartooth from the very beginning of their
`relationship, and took actions intended to force Beartooth to default on its bank loan,
`ultimately leading to Mr. Lajaunie’s purchase of the Beartooth assets and the Singer
`Ranch.
`
`[¶28] The district court’s decision to deny the motion to amend the counterclaim was, in
`large measure, tied to its grant of summary judgment on the promissory estoppel claim.
`That decision was based on the district court’s conclusion that Mr. Singer could not
`establish detrimental reliance on Mr. Lajaunie’s statements. The district court concluded
`that the fraud claim would fail for the same reason, and, in part, denied the motion to
`amend on the basis of futility. As previously discussed, however, the district court erred
`in concluding that there was no genuine issue of material fact with regard to Mr. Singer’s
`reliance on the statements. Accordingly, the district court’s decision denying the motion
`to amend the counterclaim must also be reversed.
`
`[¶29] We also note that Mr. Singer sought to add his brother as a counterclaimant
`because, like Mr. Singer, the brother held a 50% ownership interest in the Singer Ranch
`and allegedly agreed to pledge his 50% interest as collateral for Beartooth’s bank loan in
`reliance upon the statements by Mr. Lajaunie. This issue became moot when the district
`
`9
`
`

`
`court granted summary judgment on the promissory estoppel claim and denied the motion
`to amend the complaint. In light of our decision, this issue is no longer moot and must be
`addressed by the district court on remand.
`
`3.
`
`Premature Summary Judgment
`
`[¶30] Mr. Singer’s final claim is that the district court erred by granting summary
`judgment before the completion of discovery. Because we have determined that the
`summary judgment order must be reversed on other grounds, we do not consider this
`third issue. We assume that on remand the district court will permit such discovery as is
`reasonably necessary to address the fraud and promissory estoppel claims.
`
`B.
`
`Docket No. S-14-0005
`
`1.
`
`Inadmissible Evidence
`
`[¶31] Mr. Lajaunie contends that the district court allowed Mr. Singer to introduce
`irrelevant and prejudicial evidence at trial.
`
`Generally, decisions regarding the admissibility of
`evidence are entrusted to the sound discretion of the
`district court. We afford considerable deference to the
`district court’s decision and, as long as a legitimate
`basis exists for the district court’s ruling, it will not be
`reversed on appeal. Under the abuse of discretion
`s t a n d a r d , o u r p r i m a r y c o n s i d e r a t i o n i s t h e
`reasonableness of the district court’s decision. The
`burden of establishing an abuse of discretion rests with
`the appellant.
`
`If we find that the district court erred in
`admitting the evidence, we must then determine
`whether or not the error affected [the appellant’s]
`substantial rights, providing grounds for reversal, or
`whether the error was harmless. The error is harmful
`if there is a reasonable possibility that the verdict
`might have been more favorable to [the appellant] if
`the error had never occurred. To demonstrate harmful
`error, [the appellant] must prove prejudice under
`circumstances which manifest inherent unfairness and
`injustice, or conduct which offends the public sense of
`fair play.
`
`10
`
`

`
`Proffit v. State, 2008 WY 103, ¶ 12, 191 P.3d 974, 977-978 (Wyo. 2008) (internal
`citations and quotation marks omitted).
`
`[¶32] Before trial, the district court granted summary judgment in favor of Mr. Lajaunie
`on his claims that Mr. Singer had breached his fiduciary duties by his use of Beartooth
`funds to pay accounting expenses for Clark’s Fork Canyon Springs, LLC, and by creating
`Sunlight Springs Distribution, LLC, without notice to Mr. Lajaunie. The district court
`did not decide damages for these breaches, and did not decide whether Mr. Singer had
`breached fiduciary duties by other actions. Consequently, as Mr. Lajaunie explains in his
`brief, the issues remaining at trial were these:
`
`if any, resulting from
`1. [T]he amount of damages,
`[Mr.] Singer’s breach of his
`fiduciary duty by using
`[Beartooth] funds to pay accounting expenses of his business,
`[Clark’s Fork Canyon Springs, LLC];
`
`if any, resulting from
`2. [T]he amount of damages,
`[Mr.] Singer’s breach of his fiduciary duties by taking
`advantage of business opportunities by creating [Sunlight
`Springs Distribution, LLC,] without disclosure to [Mr.]
`Lajaunie, and using the [Beartooth] trademark, “Sunlight
`Springs,” for his new business;
`
`3. Whether [Mr.] Singer breached his fiduciary duties by
`using [Beartooth] funds to pay for his utilities, auto expenses,
`insurance expenses, and similar personal expenses and if so,
`the amount of damages;
`
`4. Whether [Mr.] Singer breached his fiduciary duty by using
`[Beartooth] property rent-free to operate a gas station, bar,
`and convenience store that he owned know[n] as “Edelweiss,”
`and if so, the amount of damages;
`
`5. Whether [Mr.] Singer breached his fiduciary duty by using
`[Beartooth]
`funds
`to pay for a
`trip
`to Mexico over
`Thanksgiving, 2009, and if so, the amount of damages; and
`
`6. Whether [Clark’s Fork Canyon Springs, LLC] or [Sunlight
`Springs Distribution, LLC], or both, were unjustly enriched as
`a result of Mr. Singer’s breach of fiduciary duty, and if so, the
`amount of restitution that each should pay to [Beartooth].
`
`Notably, at trial, Mr. Lajaunie expressly disclaimed any attempt to prove that Beartooth
`
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`
`had failed as a result of Mr. Singer’s breaches of fiduciary duty, and did not seek
`damages for the value of Mr. Lajaunie’s lost investments, lost future profits, or other
`consequential damages. Instead, Mr. Lajaunie sought damages only for the specific
`breaches he alleged, and in the discrete amounts caused by such breaches.
`
`[¶33] Because the issues were so limited, Mr. Lajaunie filed a motion in limine seeking
`to exclude evidence relating to Mr. Singer’s dismissed counterclaim. In particular, he
`moved to exclude evidence that he purchased the assets of Beartooth and the Singer
`Ranch from the bank after the bank had foreclosed on those assets. He sought to exclude
`evidence of his alleged “guarantee” to purchase Beartooth water, and evidence suggesting
`that he had long held a scheme to take over the Beartooth business to the exclusion of
`Mr. Singer. The district court indicated that it would limit Mr. Singer’s ability to elicit
`testimony about these topics, although it suggested that it might allow an instruction
`informing the jury that Mr. Lajaunie eventually purchased the assets. Mr. Lajaunie
`contends, however, that the district court failed to exclude such evidence during trial
`despite Mr. Lajaunie’s objections.
`
`[¶34] Our first step in evaluating Mr. Lajaunie’s claim is to consider whether the
`evidence was relevant and properly admitted, or was irrelevant and should have been
`excluded. W.R.E. 402 provides that evidence “which is not relevant is not admissible.”
`W.R.E. 401 defines relevant evidence as “evidence having any tendency to make the
`existence of any fact that is of consequence to the determination of the action more
`probable or less probable than it would be without the evidence.”
`
`[¶35] As mentioned above, the issues at trial related to Mr. Singer’s alleged breach of
`his fiduciary duties as a member of Beartooth. Evidence of Mr. Singer’s actions was
`obviously relevant, because it tended to make it more or less probable that those actions
`breached his duties of loyalty and responsibility to Beartooth. However, we agree with
`Mr. Lajaunie that evidence of his conduct was not relevant.
`
`In his counterclaim and proposed amended counterclaim, Mr. Singer asserted that
`[¶36]
`Mr. Lajaunie breached a promise to purchase a truckload of Beartooth water per day, had
`a long-held scheme to take over the Beartooth business, and purchased the Beartooth
`assets after foreclosure. Even if true, however, those facts have no relevance to the
`question of whether Mr. Singer breached his fiduciary duties. They do not justify or
`explain Mr. Singer’s conduct, or make it more or less likely that Mr. Singer was acting
`with the required loyalty and responsibility toward Beartooth. They have no tendency to
`increase or mitigate damages. They do not provide a defense to the claims that have been
`asserted. In sum, such evidence is not relevant.
`
`[¶37] Mr. Singer does not make a serious claim that the evidence is relevant for any
`particular issue. He contends that it is properly received as “background” and was
`properly admitted because Mr. Lajaunie “opened the door” to such evidence. Mr. Singer
`
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`
`points out that, when one litigant offers evidence on an issue that is otherwise irrelevant
`or inadmissible, he cannot complain on appeal “if the opposing party introduces evidence
`on the same subject.” Francis v. Clark Equip. Co., 993 F.2d 545, 550 (6th Cir. 1993).
`We have recognized that a litigant “may open the door to otherwise inadmissible
`testimony when he inquires about a particular subject.” Roden