[00:00:00] Speaker 03:
Call case number 258024, 4B Properties versus the Nature Conservancy.

[00:00:11] Speaker 04:
Good morning, Your Honors.

[00:00:13] Speaker 04:
Carolyn Gerlin and together with my co-counsel, Lauren Heppenhausen, on behalf of 4B Properties and Gary Benning.

[00:00:21] Speaker 04:
We ask you to reverse the district court's grant of summary judgment in this case.

[00:00:25] Speaker 04:
This is a case with a long procedural history

[00:00:28] Speaker 04:
and a dense fact background.

[00:00:31] Speaker 04:
But in the context of the district court's grant of summary judgment, the operator facts and legal standard are straightforward.

[00:00:39] Speaker 04:
Two witnesses, Mr. Binning and his now wife, Mrs. Binning, provided consistent sworn testimony about the promise that is the subject of the promissory estoppel claim in this case.

[00:00:51] Speaker 04:
That promise concerned what Mr. Binning was allowed to build with respect to a secondary structure

[00:00:58] Speaker 04:
on his property.

[00:01:00] Speaker 04:
That consistent testimony was that then Wyoming State Director Haley Mortimer promised the Bennings that he could build a structure as long as he did not call it a guest house, did not put a kitchen in it, and it was consistent with the Teton County LDRs.

[00:01:20] Speaker 04:
Ms.

[00:01:20] Speaker 04:
Mortimer has not refuted that testimony.

[00:01:24] Speaker 04:
She was the only other participant in this meeting.

[00:01:26] Speaker 04:
That is the baseline promise that we have discussed in our briefs.

[00:01:30] Speaker 04:
Notwithstanding that, Your Honors, the district court concluded that Mr. Binning, and by implication, Mrs. Binning, had simply fabricated this testimony in order to manufacture a claim in this case.

[00:01:44] Speaker 04:
The district court, in order to reach that conclusion, made numerous factual inferences against the Binnings, who are the non-movements.

[00:01:55] Speaker 04:
There was no evidence that blatantly contradicted the Binnings testimony.

[00:02:00] Speaker 04:
And that type of real contradiction is what would have been required in order for the district court to do what it did and absolutely reject the Binnings testimony.

[00:02:11] Speaker 01:
Well, let's just assume that what the Binnings testified about the conversation over that lunch, let's just assume that those statements were made by Ms.

[00:02:20] Speaker 01:
Mortimer.

[00:02:21] Speaker 01:
As you began your presentation, you said this case has had a long history.

[00:02:26] Speaker 01:
How do we view the long history of negotiations, of the exchange of letters, of the litigation with this one lunch meeting and our assessment as to whether or not those statements presented a clear and definite promise?

[00:02:40] Speaker 04:
Thank you, Your Honor.

[00:02:40] Speaker 04:
Yes, I think that the history is important because when Ms.

[00:02:44] Speaker 04:
Mortimer showed up at the luncheon, she was the brand new state director of Wyoming TNC.

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And she had recognized, as she said at the luncheon,

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She felt sorry about what had happened in the past, that the TNC had been inconsistent with Mr. Benning and the way that it had treated him.

[00:03:01] Speaker 04:
She noted that the Wyoming Supreme Court opinion itself noted that the TNC had been inconsistent with Mr. Benning.

[00:03:07] Speaker 04:
And Ms.

[00:03:08] Speaker 04:
Mortimer said at that luncheon, I don't want there to be any more litigation, I want to solve this, but I need to solve it in the context of the Wyoming Supreme Court opinion.

[00:03:18] Speaker 04:
I have to comply with the Wyoming Supreme Court opinion and I have to find a solution

[00:03:22] Speaker 04:
that comports with the Wyoming Supreme Court opinion.

[00:03:25] Speaker 04:
She did express regret at what had happened to Mr. Benning in the past and said she wanted there not to be more litigation.

[00:03:31] Speaker 04:
And that is what led to her promise.

[00:03:33] Speaker 04:
And the promise seems odd unless one really knows the intricacies of the Teton LDRs and of the Wyoming Supreme Court opinion.

[00:03:41] Speaker 04:
Because what this really kind of brilliant promise from Ms.

[00:03:44] Speaker 04:
Mortimer did was it threaded the needle precisely and allowed her to promise Mr. Benning

[00:03:50] Speaker 04:
that he could be within the technical requirements of the Wyoming Supreme Court opinion, still get not all of what he wanted, but a portion of what he wanted, which was that he could have a secondary structure that had multiple purposes, meetings, exercise, whatnot, and also to be able, as long as that structure didn't have a kitchen.

[00:04:13] Speaker 04:
And that was because the Wyoming Supreme Court opinion focused on what was a residence.

[00:04:19] Speaker 04:
And under the Wyoming LDRs, a structure cannot be a residence or dwelling unless it has a full kitchen.

[00:04:26] Speaker 04:
And then again, they get into some pretty nitty gritty detail talking about a stove.

[00:04:30] Speaker 04:
It has to have a hookup, could be natural gas.

[00:04:33] Speaker 04:
If it's voltage, it's got to be 220 volts.

[00:04:34] Speaker 04:
Yeah.

[00:04:35] Speaker 01:
Counsel, can I cut you off?

[00:04:37] Speaker 01:
I apologize.

[00:04:37] Speaker 01:
But at that point, Mr. Benning, of course, also knows that he has been to the Wyoming Supreme Court and lost, and that his communications with the Nature Conservancy

[00:04:48] Speaker 01:
have been more formal.

[00:04:49] Speaker 01:
There have been, again, letters authored by counsel.

[00:04:52] Speaker 01:
And as you just said, Ms.

[00:04:53] Speaker 01:
Mortimer, she's new to all of this.

[00:04:55] Speaker 01:
And she came in, as I understand it, seeking to avoid litigation.

[00:05:00] Speaker 01:
And so Mr. Benning has this conversation.

[00:05:02] Speaker 01:
He walks away.

[00:05:03] Speaker 01:
How can we conclude that he, at that point, it was reasonable to rely upon what was he deemed a clear and definite promise when thereafter?

[00:05:11] Speaker 01:
They don't just start building immediately.

[00:05:14] Speaker 01:
And more importantly, he is insistent

[00:05:18] Speaker 01:
that everything needs to be done in writing as to this promise, which makes sense because he's been litigating against them on this very issue for years.

[00:05:26] Speaker 04:
Starting at the beginning, how we know that it's a clear and definite promise is that the promise itself had every single term that the architects needed

[00:05:34] Speaker 04:
And they knew exactly what they were able to design.

[00:05:37] Speaker 03:
But what about the fact that Ms.

[00:05:40] Speaker 03:
Mortimer, everyone agrees that at the end of it she said, yeah, I need to take this.

[00:05:44] Speaker 03:
He wanted it in writing.

[00:05:45] Speaker 03:
And she said, yeah, I got to take this back to my legal counsel.

[00:05:48] Speaker 03:
I got to take this back to my staff.

[00:05:50] Speaker 03:
I got to talk to them about it.

[00:05:52] Speaker 03:
That all by itself.

[00:05:54] Speaker 03:
says this is not a clear, definite promise.

[00:05:58] Speaker 03:
This is something we talked about, but we're still in the negotiation stage.

[00:06:03] Speaker 03:
I'm not done.

[00:06:04] Speaker 03:
I, of course, have to take this to my legal counsel.

[00:06:06] Speaker 03:
What about that?

[00:06:08] Speaker 03:
says, oh, we're done.

[00:06:10] Speaker 03:
I can go forward on this because I got a clear promise.

[00:06:13] Speaker 03:
Oh, and he also said, yes, I want it in writing.

[00:06:15] Speaker 03:
And then it doesn't never put into writing, and he doesn't push on that.

[00:06:20] Speaker 04:
Yes, Your Honor.

[00:06:21] Speaker 03:
And what is put in writing is nothing about what they talked about, and he doesn't push on that.

[00:06:26] Speaker 03:
All of these facts would lead any reasonable person to believe.

[00:06:29] Speaker 03:
There was certainly no clear and definite.

[00:06:33] Speaker 03:
There might have been a clear one, but it wasn't definite.

[00:06:36] Speaker 03:
So she said, I got to talk to my legal counsel.

[00:06:38] Speaker 03:
And he said, we need to put this in writing.

[00:06:40] Speaker 03:
And that didn't happen.

[00:06:41] Speaker 04:
Thank you, Your Honor.

[00:06:42] Speaker 04:
And I think this is the central issue and a very important issue.

[00:06:45] Speaker 04:
And it only works if we refuse to make the inference in favor of Mr. Benning, as we're required to at this phase of the proceeding.

[00:06:53] Speaker 03:
You can make inferences, but you can't change the facts, which are undisputed, which is she said, I still got to talk to my legal counsel.

[00:07:00] Speaker 03:
Basically, we're not done.

[00:07:02] Speaker 04:
She needed to talk to her legal counsel about,

[00:07:05] Speaker 04:
the attempted compromise, not about the baseline promise.

[00:07:08] Speaker 03:
So I think that... Well, I mean, is that disputed?

[00:07:11] Speaker 03:
It is absolutely disputed.

[00:07:13] Speaker 03:
What she said she needed to talk... Did she say, we got a done deal here, I'm just going to talk to my legal counsel for what purpose?

[00:07:21] Speaker 04:
Your Honor, she was going to talk to her legal counsel only in the context of the attempted compromise, which was to get more

[00:07:27] Speaker 04:
than the baseline promise.

[00:07:29] Speaker 04:
The baseline promise is clear on its terms.

[00:07:31] Speaker 04:
When they're talking about what more, do I have to talk to other people about it?

[00:07:35] Speaker 04:
Should we have a writing?

[00:07:36] Speaker 04:
All of that concerns another promise, a second promise that never came to fruition.

[00:07:40] Speaker 03:
Okay, so she was solid on the baseline promise.

[00:07:43] Speaker 03:
On the baseline promise.

[00:07:44] Speaker 04:
That is the testimony.

[00:07:45] Speaker 03:
And then he said, I want whatever we agreed to be in writing.

[00:07:49] Speaker 03:
And that never happened.

[00:07:51] Speaker 03:
And in fact, something else gets put into writing and he doesn't say, hey,

[00:07:55] Speaker 03:
That's not the baseline promise.

[00:07:57] Speaker 03:
That's not what we agreed to.

[00:07:59] Speaker 04:
The interesting thing about that when it comes out and it comes out in the form of writing September 11, 2020 letter and what it starts with is that it says, we understand that you want to have two residences.

[00:08:11] Speaker 04:
And what that means under the very specific facts of this case is we understand that you want to have two kitchens.

[00:08:16] Speaker 04:
So we know right there that what they're talking about is not the baseline promise.

[00:08:20] Speaker 04:
They're talking about the something more, the something that never came to fruition.

[00:08:24] Speaker 04:
How else do we know?

[00:08:25] Speaker 04:
Because when Mr. Benning was talking about, why are you continuing to negotiate with Ms.

[00:08:29] Speaker 04:
Mortimer if you had already the baseline promise that you wanted?

[00:08:32] Speaker 04:
He said, boy, I really wanted to get a kitchen.

[00:08:35] Speaker 04:
So all of these additional discussions, the things that she needed to take back to her team, all of these other issues,

[00:08:40] Speaker 04:
involve a completely separate discussion, which is what would have to happen in order for Mr. Benning also to get a kitchen.

[00:08:47] Speaker 03:
Isn't that a traditional negotiation of the details of whatever the agreement is eventually going to be?

[00:08:52] Speaker 03:
That's not, oh, we have an agreement and we're going to move forward with this.

[00:08:57] Speaker 03:
We have this baseline, as you say, but we don't accept this baseline.

[00:09:04] Speaker 03:
I'm going to keep trying to get more.

[00:09:06] Speaker 03:
That's not a definite agreement.

[00:09:09] Speaker 03:
We're not done negotiating yet.

[00:09:10] Speaker 04:
Well, Mr. Binning did have a clear and definite agreement that he could do at least the minimum.

[00:09:16] Speaker 04:
He could at least have a structure, which was an unattached structure that didn't have a kitchen in it, as long as he didn't call it a guest house and it complied with the LDRs.

[00:09:25] Speaker 04:
That was what it was.

[00:09:26] Speaker 04:
And this would have been a much more simple case if there weren't additional discussions involving

[00:09:31] Speaker 04:
the more that Mr. Benning really wanted, which was for there to also be a full kitchen in it.

[00:09:36] Speaker 04:
So this was, unlike the cases cited in the briefs, in TNC's briefs, this is very much unlike the Woodward case in which it's a continuing negotiation with respect to one promise, and there's an expectation of a writing.

[00:09:49] Speaker 04:
It needs to be in writing.

[00:09:51] Speaker 04:
There's an integration clause even saying that prior oral discussions are invalidated.

[00:09:56] Speaker 04:
This is not that case.

[00:09:58] Speaker 04:
This is a case in which there was a baseline promise, clear and definite when made.

[00:10:03] Speaker 04:
How do we know?

[00:10:03] Speaker 04:
In all of the thousands of pages of email communications with the architects, never once is anyone at all ambivalent about what it is that they're building.

[00:10:12] Speaker 04:
They know exactly what it is that they're building.

[00:10:15] Speaker 04:
And there's even specific reference to the promise at the point in time that Mr. Benning, in October of 2022, puts the plans in.

[00:10:24] Speaker 04:
Immediately before, he refers to

[00:10:27] Speaker 04:
this promise in an email to his architect, John Carney.

[00:10:31] Speaker 04:
And he says, well, I don't think that we should give the plans to TNC in advance, even if we don't have to.

[00:10:37] Speaker 04:
And I don't think there's going to be a problem, because remember what the state director said to us in the directive that she gave to us.

[00:10:43] Speaker 04:
And then replete in the record, which the district court entirely ignored, were numerous emails in which the architects talk about, well, we have to put no kitchen in it to comply with TNC.

[00:10:56] Speaker 04:
They're talking about the promise.

[00:10:57] Speaker 04:
They're talking about the baseline promise.

[00:11:00] Speaker 04:
Everybody is clear what they're designing.

[00:11:02] Speaker 04:
It is clear and definite when made, and everybody proceeded exactly on that basis.

[00:11:06] Speaker 01:
Council, does the record also show that after that lunch meeting that

[00:11:11] Speaker 01:
Mr. Binney instructed his architects and their crew to pause work.

[00:11:16] Speaker 04:
Yes, Your Honor, he did pause work as he was contemplating whether or not he could get the plus, the kitchen.

[00:11:24] Speaker 04:
And that is the purpose for pausing.

[00:11:26] Speaker 04:
And 10 days after the conversation with Ms.

[00:11:29] Speaker 04:
Mortimer, he was back on track in designing a wellness center not called the guest house without a kitchen in it.

[00:11:35] Speaker 04:
With that, I'd love to reserve, and I'm sorry that I didn't say that at the beginning.

[00:11:56] Speaker 00:
May I please the court, counsel?

[00:11:59] Speaker 00:
Leah Schwartz on behalf of the Nature Conservancy.

[00:12:03] Speaker 00:
This appeal involves the summary judgment disposition of just one claim about a single promise allegedly made over lunch.

[00:12:11] Speaker 00:
Considering the legal context, what was allegedly said at the lunch, the written follow-up, and what the binnings did after, the claim was properly disposed of on summary judgment.

[00:12:24] Speaker 00:
This appeal does not involve questions of credibility or he said, she said, and that's because even if we accept everything that the Benning say occurred at the lunch as true, this claim still fails under well-established Wyoming law and it fails at every element.

[00:12:43] Speaker 00:
I would like to spend a little time at the beginning just talking about the context that Justice Federico mentioned at the outset.

[00:12:50] Speaker 00:
The cases say that this context necessarily informs the first two elements of a promissory estoppel claim.

[00:12:59] Speaker 00:
What could the alleged promissor reasonably expect by their words?

[00:13:04] Speaker 00:
And what could the hearer, the alleged promisee, reasonably do in reliance on them?

[00:13:11] Speaker 00:
The Davis v. Davis case is instructive.

[00:13:13] Speaker 00:
It says the nature of the transaction is significant.

[00:13:17] Speaker 00:
What's at stake is significant.

[00:13:19] Speaker 00:
Roth v. First Security, that case discusses the sophistication of the parties and when the conversation occurs and how in their course of conduct and dealings with each other.

[00:13:31] Speaker 00:
In both of those cases, the promissory estoppel claims were dismissed on summary judgment.

[00:13:37] Speaker 00:
So here we have a conservation easement governing the relationship between these parties.

[00:13:43] Speaker 00:
The Wyoming Supreme Court does a good job, Your Honors, of explaining what a conservation easement is

[00:13:49] Speaker 00:
I think it's important to just touch on the fact that it is not like a business contract where we might expect people to sit around on the table and haggle over terms, maybe change them.

[00:14:00] Speaker 00:
This is a real property interest.

[00:14:03] Speaker 00:
It's a perpetual real property interest.

[00:14:06] Speaker 00:
The courts have described it as quasi-contractual in nature in terms of how it's interpreted, but commentators also describe conservation easements as a charitable trust, and that's because

[00:14:18] Speaker 00:
When they are granted, they serve a public good, a conservation purpose.

[00:14:23] Speaker 00:
They are subsidized by the public in the form of the tax write-off that the grantor receives at the outset and in the form of reduced property taxes throughout the duration of the property.

[00:14:33] Speaker 00:
TNC is not a party to the conservation easement in the same way we think of parties to a contract.

[00:14:41] Speaker 00:
It is a holder of the conservation easement.

[00:14:44] Speaker 00:
that has certain obligations to uphold and enforce its terms consistent with the intent of the settler or the grantor.

[00:14:51] Speaker 00:
In this case, that was Gladys Moulton, a longtime, old-time Wyoming rancher and conservationist in the Jackson Hole Valley.

[00:15:02] Speaker 00:
So these obligations set the framework for what we're talking about here.

[00:15:07] Speaker 00:
Commentators have described the obligations of a land trust as fiduciary in nature in this context.

[00:15:13] Speaker 00:
The Wyoming Supreme Court says conservation easements should be protected against expedient exemptions which defeat the purpose of preserving land in its natural state.

[00:15:24] Speaker 00:
We also have the prior litigation here.

[00:15:26] Speaker 00:
So we have a Supreme Court opinion interpreting this conservation easement.

[00:15:31] Speaker 00:
The court can read what the, this court can read what the Wyoming Supreme Court said, just as Mr. Vinning and Ms.

[00:15:38] Speaker 03:
Ler's could.

[00:15:38] Speaker 03:
But then you have Ms.

[00:15:39] Speaker 03:
Mortimer seemingly almost trying to go around the Wyoming Supreme Court's opinion to make something work.

[00:15:50] Speaker 03:
which certainly wasn't necessary for her to do, but that did seem to be the nature of the lunchtime meeting, was, well, yeah, we're kind of stuck now.

[00:15:59] Speaker 03:
You have this litigation, and this was the result, and they said no.

[00:16:04] Speaker 03:
So, hmm, where to now?

[00:16:06] Speaker 00:
Where to now?

[00:16:07] Speaker 00:
That's right.

[00:16:08] Speaker 00:
The allegations describe the lunch as a discussion of possibilities, that the detached kitchen-less structure, quote unquote, promise, was a

[00:16:20] Speaker 00:
concept, so that was the framework.

[00:16:25] Speaker 00:
But prior to that lunch, Mr. Benning had received multiple letters from TNC, in-house counsel, Ms.

[00:16:32] Speaker 00:
Mortimer herself saying, we cannot approve a guest house on this property.

[00:16:37] Speaker 00:
We are compelled by law to adhere to the Wyoming Supreme Court's decision.

[00:16:42] Speaker 00:
This was reiterated at that lunch according to Mr. Benning's own testimony, so we can think about the Wyoming Supreme Court opinion in a way

[00:16:50] Speaker 00:
as an additional condition or term of the promise in this case.

[00:16:54] Speaker 00:
He testified, what she was concerned about was that TNC complied with the Supreme Court ruling, which says you can't have a guest house.

[00:17:02] Speaker 00:
She was very emphatic that, you know, we needed to comply with the Supreme Court ruling.

[00:17:07] Speaker 00:
That's at R1763.

[00:17:11] Speaker 00:
So that is a part of the framework for the party's discussion.

[00:17:15] Speaker 00:
We also know that there was an ongoing dispute about the litigation.

[00:17:20] Speaker 00:
This was not a, OK, case closed.

[00:17:23] Speaker 00:
Let's move forward.

[00:17:24] Speaker 00:
Everyone wash our hands here.

[00:17:26] Speaker 00:
This was Mr. Benning testifying that he was contemplating renewed litigation against TNC before the parties even sat down to that table.

[00:17:37] Speaker 01:
But isn't that important for the context if Mr. Benning

[00:17:42] Speaker 01:
walks away from that lunch, and he knows that he's essentially threatened to sue again.

[00:17:46] Speaker 01:
And Ms.

[00:17:47] Speaker 01:
Mortimer, my understanding is, is the new, relatively new president of TNC in Wyoming.

[00:17:52] Speaker 01:
And she comes to lunch and says, we want to end hostilities, right?

[00:17:56] Speaker 01:
And we want to avoid litigation.

[00:17:59] Speaker 01:
So let's figure out a way to get around it.

[00:18:00] Speaker 01:
I mean, doesn't that context matter too?

[00:18:02] Speaker 01:
And kind of at least lean towards Ms.

[00:18:06] Speaker 01:
Benning saying, well, that was her intent for coming to lunch.

[00:18:09] Speaker 01:
And she's told me how I can do it.

[00:18:11] Speaker 01:
And your opposing counsel just said that Ms.

[00:18:13] Speaker 01:
Mortimer was solid on that baseline promise.

[00:18:17] Speaker 01:
Why couldn't he rely on that?

[00:18:19] Speaker 00:
Well, because your honors, he read the Wyoming Supreme Court decision.

[00:18:22] Speaker 00:
He had access to the conservation easement.

[00:18:25] Speaker 00:
He also testified, contrary to the argument of counsel, that he did not trust TNC to honor its commitments even as of August of 2020.

[00:18:40] Speaker 00:
Council, during Mr. Benning's deposition, put him under questioning for some period of time, tried to clarify that, oh, didn't this feeling of wanting to sue change after you talked to Ms.

[00:18:54] Speaker 00:
Mortimer?

[00:18:54] Speaker 00:
But he testified he was always prepared for litigation against the Nature Conservancy.

[00:19:01] Speaker 00:
We, of course, reject the Bening characterization of TNC's behavior and why he was distrustful of the organization.

[00:19:09] Speaker 00:
But the point is there was a standing dispute going into that lunch and a significant disagreement about the legal baseline from which the parties were operating.

[00:19:19] Speaker 03:
But they say that the two, Mr. and Mrs. Bening, say there was this agreement, this baseline agreement

[00:19:30] Speaker 03:
And does Ms.

[00:19:32] Speaker 03:
Mortimer say she didn't basically suggest this workaround of the Supreme Court, which is how I viewed it?

[00:19:40] Speaker 00:
She was never asked that during her deposition, Your Honor.

[00:19:44] Speaker 00:
So she did not directly... Correct.

[00:19:47] Speaker 03:
There's nothing to contravert that there was a baseline agreement.

[00:19:51] Speaker 00:
Well, the testimony did not... This notion of a baseline agreement that only emerges in the party's briefing.

[00:19:58] Speaker 00:
The discussion, the testimony was about a discussion of options.

[00:20:04] Speaker 00:
And, you know, the stakes were high at this juncture.

[00:20:08] Speaker 00:
The parties had spent a lot of time and money on the prior litigation.

[00:20:13] Speaker 00:
The stakes were high for the organization for some of the reasons I mentioned.

[00:20:16] Speaker 00:
organizational integrity, upholding the law, and the judicially determined intent of the easement grantor.

[00:20:24] Speaker 00:
But the stakes for the binnings were high too because they say they really wanted a structure for their guests.

[00:20:30] Speaker 00:
That was vital to them.

[00:20:32] Speaker 00:
And so we need clarity around that term that is so vital.

[00:20:35] Speaker 00:
The court recognized that in the Brown v. Maccabees case, this court, that when a term is so vital, you need that to be adequately described.

[00:20:44] Speaker 00:
The claim in this case is for over $11 million in damages because the structure was so important to them, they said they couldn't build any part of their plan without it.

[00:20:55] Speaker 00:
So that's the kind of clarity we need.

[00:20:57] Speaker 00:
This is high stakes.

[00:20:59] Speaker 00:
He testified also that he was thinking of selling his adjacent property, Ranch 10, so he wanted something to show a future buyer to say this is what you can build in addition or to supplement the conservation easement, which is in the land records.

[00:21:15] Speaker 00:
So it is undisputed that this was a sophisticated businessman looking to preserve his optionality.

[00:21:20] Speaker 00:
He had lawyers in the wings.

[00:21:23] Speaker 00:
And again, this is a discussion of options.

[00:21:25] Speaker 00:
This frames the discussion.

[00:21:28] Speaker 00:
But even if we were to ignore all that, Your Honors, and just look myopically at what was allegedly said at the lunch, this claim fails for lack of clarity and it fails for lack of finality, which are two very important elements discussed at length in Wyoming case law.

[00:21:49] Speaker 00:
Talking about the follow-up writing, there's been, again, argument of counsel.

[00:21:53] Speaker 00:
This is argument of counsel, not evidence, but argument of counsel that, oh, well, all he was really expecting or wanting was a written commitment as to one of the options and further follow-up as to one of the options, but the actual promise did not require written follow-up among the options discussed.

[00:22:14] Speaker 00:
Well, the testimony, as Judge Moritz has referred to, was that,

[00:22:18] Speaker 00:
Mr. Benning actually wanted whatever she agreed to at the meeting in writing.

[00:22:24] Speaker 00:
That, Your Honors, is at R1761.

[00:22:28] Speaker 00:
Also, R1788.

[00:22:31] Speaker 00:
I wanted something in writing that if we decide to sell Ranch 10, we had certainty.

[00:22:36] Speaker 00:
You can build this, whatever this is.

[00:22:39] Speaker 00:
Record 1789.

[00:22:43] Speaker 00:
Question to the witness, but whatever the position was, you needed it in writing to give you clarity as to both structures, correct?

[00:22:50] Speaker 00:
Response, we would like a writing because that makes it clear.

[00:22:55] Speaker 01:
Council, in terms of the record, the district court determined that the really only promise that was made was a letter of September 11th.

[00:23:04] Speaker 01:
It was clear and definite.

[00:23:05] Speaker 01:
And do you agree with that finding?

[00:23:08] Speaker 00:
It's an interesting question, Your Honor.

[00:23:10] Speaker 00:
Of course, that wasn't actually the issue before us on summary judgment.

[00:23:14] Speaker 00:
We note that the letter that's copied in our brief, which Council actually misrepresents, it does not reference a desire for two residences at all.

[00:23:24] Speaker 00:
It's set forth on page 12 of our brief.

[00:23:27] Speaker 00:
But that letter expressly states that even the approval of one structure

[00:23:33] Speaker 00:
Again, this is just for one structure.

[00:23:35] Speaker 00:
So this wouldn't even implicate the associated improvements question, which had been so hotly litigated all the way up to the Wyoming Supreme Court.

[00:23:45] Speaker 00:
Even that would be subject to a review of plans.

[00:23:49] Speaker 00:
And the Nature Conservancy announced, we believe it's required under the conservation easement that you submit plans to us.

[00:23:56] Speaker 00:
It's undisputed that there were no specific plans discussed at the lunch.

[00:24:01] Speaker 00:
It's undisputed the term wellness center was not discussed at the lunch.

[00:24:05] Speaker 00:
This again was in the context of possibilities, need for follow-up advice.

[00:24:11] Speaker 00:
That's at record 1772, Mr. Binning's own words.

[00:24:16] Speaker 00:
She needed some advice.

[00:24:18] Speaker 00:
He recognized that.

[00:24:21] Speaker 00:
I would also point your honors to the follow-up email correspondence around this issue, because it is just really overwhelming on this point.

[00:24:32] Speaker 00:
R3121, talking about thinking about possibilities and next steps.

[00:24:38] Speaker 00:
It was so nice to meet you.

[00:24:40] Speaker 00:
Record 2036, we're still working on the letter, the letter you have requested.

[00:24:49] Speaker 00:
Record 2038,

[00:24:51] Speaker 00:
Key members of our council are not available this week to review the draft letter, record 2040 from Mr. Binning.

[00:25:00] Speaker 00:
Should we still expect a letter?

[00:25:01] Speaker 00:
Response, we just finished another round of discussions.

[00:25:06] Speaker 00:
So in the same way that in cases like Burt v. Wells Fargo and the Black Card case, the promise was described as precatory, it was not final or firm in this case either.

[00:25:21] Speaker 00:
When the letter did finally come, Your Honors, I would also note that the transmittal email is titled Subject Clarification Letter.

[00:25:30] Speaker 00:
That's at R2043.

[00:25:33] Speaker 00:
So whatever Mr. Binning may have heard at the Pines lunch, this letter objectively communicated he and the Nature Conservancy were not on the same page about what he was proposing to build.

[00:25:47] Speaker 00:
and the Woodward case is on point.

[00:25:50] Speaker 00:
While that case did involve a subsequent contract, Judge Johnson in that case observed that didn't much matter.

[00:25:58] Speaker 00:
What matters is that the plaintiff saw the writing did not match the terms of the agreement.

[00:26:04] Speaker 00:
They suffered a financial loss, but not due to reasonable reliance.

[00:26:08] Speaker 00:
Your Honors, I'm nearly out of time, but I would also just point the court to the many conditions attached to this promise.

[00:26:15] Speaker 00:
comply with the Wyoming Supreme Court opinion, comply with the LDRs, it can't have a kitchen.

[00:26:21] Speaker 00:
Oh, but we must imply that it can't have a kitchen under a technical definition that was undisputedly not discussed at the meeting.

[00:26:30] Speaker 00:
The testimony was that no specific LDR sections or definitions were discussed.

[00:26:37] Speaker 00:
That is R1763.

[00:26:40] Speaker 00:
And the promise on top of all of that evolved dramatically over the course of the case.

[00:26:45] Speaker 00:
The initial complaint discussed a 2,500 square foot structure, and that was undisputed and set out in our statement of material facts in the case, and yet what we see submitted is a 2,700 square foot structure.

[00:27:02] Speaker 00:
Again, Your Honor, as many basis to affirm, we respectfully ask the court to do that.

[00:27:08] Speaker 00:
This is just the type of case Rule 56 is designed to see disposed of on summary judgment.

[00:27:14] Speaker 00:
If there are no further questions, I can sit down.

[00:27:17] Speaker 03:
Thank you, Council.

[00:27:18] Speaker 00:
Thank you very much.

[00:27:21] Speaker 03:
Rebuttal.

[00:27:21] Speaker 03:
Can you add 50 seconds to her rebuttal?

[00:27:26] Speaker 03:
I'm sorry.

[00:27:27] Speaker 03:
I'm looking over here.

[00:27:27] Speaker 03:
I'm sorry.

[00:27:28] Speaker 03:
Amy, can you add 50 seconds?

[00:27:31] Speaker 04:
Thank you, Your Honors.

[00:27:32] Speaker 04:
So clarity and finality.

[00:27:34] Speaker 04:
Here's what Mr. and Mrs. Benning testified that the promise was.

[00:27:38] Speaker 04:
Go ahead and build it.

[00:27:40] Speaker 04:
Just don't call it a guest house.

[00:27:42] Speaker 04:
Don't put a kitchen in it.

[00:27:43] Speaker 04:
and make sure that it complies with the LDRs.

[00:27:46] Speaker 04:
That is a promise that was complete, and it was complete when made, and it provided all of the direction that the architects needed in order to do exactly that.

[00:27:56] Speaker 03:
If that was the promise, and that's what, of course, you're saying he and Mrs. Benning alleged, wouldn't you think that when this letter was sent in September by the Nature Conservancy,

[00:28:08] Speaker 03:
talking about something entirely different, which was a structure, a residential structure that consists of separate wings connected in the same manner.

[00:28:17] Speaker 03:
That's not the baseline promise anymore, is it?

[00:28:20] Speaker 04:
That is not the baseline promise.

[00:28:22] Speaker 04:
And I'm glad you asked, Your Honor, and I'm glad you added that.

[00:28:24] Speaker 03:
And then this gets presented.

[00:28:25] Speaker 03:
Residential.

[00:28:26] Speaker 03:
It gets presented to your client.

[00:28:28] Speaker 04:
That that's a residential structure.

[00:28:31] Speaker 04:
And I think that that's so important, the word residential.

[00:28:34] Speaker 03:
Could you stop, please?

[00:28:35] Speaker 03:
My question is,

[00:28:38] Speaker 03:
Instead of saying, this isn't the baseline promise, why are you now saying that this is what we might agree to?

[00:28:45] Speaker 03:
He takes a pen and suggests some corrections to it, and he doesn't edit that out.

[00:28:52] Speaker 04:
Your Honor, he wants the kitchen.

[00:28:53] Speaker 03:
But that's not my question.

[00:28:57] Speaker 03:
I know he wants a kitchen.

[00:28:58] Speaker 03:
I'm saying if what you have been saying is the absolute fact that there was a baseline promise that nobody's ever going back on, when she writes a letter and puts it in writing, which he's been wanting, here's what we're willing to do.

[00:29:13] Speaker 03:
Here's the new deal.

[00:29:15] Speaker 03:
He doesn't say, oh, no, no, no, no.

[00:29:17] Speaker 03:
That's not the baseline promise.

[00:29:20] Speaker 03:
In fact, it's different.

[00:29:22] Speaker 03:
He makes little edits, which he doesn't accept, but the point being never ever again is this baseline promise referred to, and apparently it wasn't called that at the time.

[00:29:34] Speaker 03:
But do you see what I'm saying?

[00:29:35] Speaker 04:
I do see what you're saying.

[00:29:36] Speaker 03:
I'm not asking about the kitchen.

[00:29:37] Speaker 03:
I'm not asking about what he wants.

[00:29:40] Speaker 03:
I'm asking about his actions in response to the writing that he wanted.

[00:29:46] Speaker 04:
And I think that the question of whether or not he didn't demand a more specific writing, I think this is an excellent fact question, but it is a fact question and not the type of thing that should be resolved on summary judgment.

[00:29:57] Speaker 03:
No, because the question is, was there a clear and definite agreement?

[00:30:01] Speaker 03:
And the fact that he responded by not talking about the clear and definite agreement is evidence there was no clear and definite agreement.

[00:30:08] Speaker 04:
However, the clear and definite agreement that what was being discussed was a separate

[00:30:14] Speaker 04:
attempt for a different agreement which would have gotten him the ability to have a kitchen.

[00:30:19] Speaker 04:
I think that an important aspect of this residence dwelling kitchen component is that for something to be a dwelling or a residence under Wyoming Supreme Court law, it has to have a kitchen.

[00:30:33] Speaker 04:
And so why there didn't need to be a writing for the baseline promise is because with respect to the baseline promise, Ms.

[00:30:42] Speaker 04:
Mortimer was giving him a workaround

[00:30:44] Speaker 04:
that did not have to vary from the Wyoming Supreme Court opinion, nor they had to vary from the Teton County LDRs.

[00:30:53] Speaker 04:
Everything that she said in this technical work around that she provided in order to avoid additional litigation was permitted under the law, was permitted under the regulations.

[00:31:03] Speaker 04:
What he was asking for with a separate writing that was the September 11 writing was for something plus, something more.

[00:31:10] Speaker 04:
And for that, there would needed to have been a writing because that would have been

[00:31:14] Speaker 04:
a variation from the Wyoming Supreme Court opinion.

[00:31:17] Speaker 04:
When Ms.

[00:31:18] Speaker 04:
Mortimer.

[00:31:18] Speaker 02:
Council, if I understand you correctly, you're saying that because Ms.

[00:31:25] Speaker 02:
Mortimer invoked the LDRs that your client had sufficient clarity to move forward.

[00:31:32] Speaker 02:
How are the LDRs even relevant when the Wyoming Supreme Court specifically said that's not the interpretation of the easement?

[00:31:41] Speaker 02:
And they did not rely on them and they interpreted the easement differently.

[00:31:47] Speaker 04:
The Wyoming Supreme Court opinion said you can only have one residence.

[00:31:52] Speaker 04:
You can't have more than one residence.

[00:31:55] Speaker 04:
And so in order, but under the LDRs, in order for something to be a residence, it has to have a full kitchen.

[00:32:02] Speaker 04:
And so what Mr. Benning designed, when his architects designed a wellness center that didn't have a full kitchen, that was fully compliant with the Wyoming Supreme Court opinion, and indeed was approved by Teton County,

[00:32:14] Speaker 04:
as a structure that was not a dwelling and not a residence.

[00:32:17] Speaker 02:
So you would not agree that the Wyoming Supreme Court opinion and the LDRs are in tension with one another?

[00:32:26] Speaker 04:
I don't think that they are in tension with one another.

[00:32:28] Speaker 04:
No, Your Honor, I think that the LDRs inform the Wyoming Supreme Court's discussion, which is that you can have one dwelling, you can have one residence, you can't have two.

[00:32:39] Speaker 04:
Well, what makes something a dwelling or a residence?

[00:32:42] Speaker 04:
It's whether or not it has a kitchen.

[00:32:44] Speaker 04:
And of course, this is a hyper-technical reading, but you know, it's Ms.

[00:32:48] Speaker 04:
Mortimer's hyper-technical reading.

[00:32:50] Speaker 04:
It was not Mr. Binning's hyper-technical reading, and I submit that she provided this hyper-technical reading of what you can do because she wanted to avoid exactly a situation in which we're standing here litigating more.

[00:33:01] Speaker 04:
She told him what he could do to thread the needle very technically and comply with the Wyoming Supreme Court opinion, not run afoul of that, not need to consult anyone.

[00:33:09] Speaker 03:
Counsel, you're out of time.

[00:33:10] Speaker 03:
Is there any further questions?

[00:33:13] Speaker 03:
Thank you.

[00:33:18] Speaker 03:
Thank you, counsel, both for your arguments.

[00:33:20] Speaker 03:
They've been very helpful.

[00:33:21] Speaker 03:
The case will be submitted and counsel are excused.