IN THE SUPREME COURT, STATE OF WYOMING

2017 WY 28

OCTOBER TERM, A.D. 2016

March 9, 2017

JOYCE HALLING and MEDCON, INC., 

a Utah corporation,

Appellants

(Defendants),

v.

DAVID A. YOVANOVICH and 

ORNELLA DALLA BONA,

Appellees

(Plaintiffs).

S-16-0163

DAVID A. YOVANOVICH and 

ORNELLA DALLA BONA,

Appellants

(Plaintiffs),

v.

JOYCE HALLING and MEDCON, INC., 

a Utah corporation,

Appellees

(Defendants).

S-16-0164

Appeal from the District Court of Lincoln County

The Honorable Joseph Bluemel, Judge

Representing Joyce Halling and MedCon, Inc.:

Ray G. Martineau, Salt Lake City, Utah.

Representing David A. Yovanovich and Ornella Dalla Bona:

James K. Lubing and Laurie J. Stern, Lubing Law Group, LLC, Jackson, 

Wyoming.*
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.

*Order Allowing Withdrawal and Substitution of Counsel entered September 21, 2016.

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.
1

FOX, Justice.

[¶1] David Halling, as manager of Professional Business Holdings, LP (PBH), and 

Joyce Halling, as president of MedCon, Inc. (MedCon), each purchased an undivided half 

interest in a parcel of land in Lincoln County, Wyoming, from Brandon Bentley. Mr. 

Halling, individually and as manager of PBH, executed a mortgage in favor of Mr. 

Bentley on PBH’s half interest as security for the purchase price of 50 percent of the lot. 

Mrs. Halling, individually and as president of MedCon, also executed a promissory note 

and mortgage as security for the note in favor of Mr. Bentley for the purchase price of the 

other 50 percent of the lot. Mr. Bentley then separately assigned his rights and interests

in the PBH Mortgage to 1st Bank of Afton, Wyoming (1st Bank), and his rights and 

interests in the MedCon Note and MedCon Mortgage to Yovanovich. Yovanovich sued 

MedCon, alleging it failed to pay the amount due under the note. The district court 

granted Yovanovich’s motion for summary judgment and MedCon appeals. Yovanovich 

cross-appeals the award of damages. We affirm the district court’s ruling in part, and 

reverse and remand in part. 

ISSUES

[¶2] The parties raise numerous issues, which we consolidate and restate below: 

1. Did the district court err as a matter of law when it held that Yovanovich had 

an enforceable contract right against MedCon?

2. Did the district court err as a matter of law when it found that the Yovanovich 

Assignment was not ambiguous? 

3. Did the district court abuse its discretion when it denied MedCon’s motion for 

leave to amend its answer?

4. Was the district court’s damages calculation clearly erroneous?

5. Did the district court abuse its discretion when it failed to award prejudgment 

interest?

6. Did the district court err as a matter of law when it failed to award postjudgment interest?

FACTS

[¶3] David Halling was the manager of PBH. His wife, Joyce Halling, was the 

president of MedCon. In 2007, PBH and MedCon each purchased an undivided half 
2

interest in a parcel of land in Lincoln County, Wyoming, from Brandon Bentley.1The 

Warranty Deed was recorded on September 17, 2007, and the same day Mr. Halling, 

individually and as manager of PBH, executed a mortgage (PBH Mortgage) of PBH’s 

half interest in Lot 7 as security for PBH’s indebtedness of the purchase price of 50 

percent of the lot. (Although the PBH Mortgage referenced a promissory note, no 

promissory note by PBH appears in the record.) The PBH Mortgage was recorded on

September 17, 2007.

[¶4] In 2008, Mr. Bentley assigned all of his rights, title, and interest in PBH’s half 

interest in Lot 7 to 1st Bank (1st Bank Assignment). The 1st Bank Assignment identified 

the PBH Mortgage and any property covered by the mortgage as the collateral, and 

referred to the book and page number where the PBH Mortgage was recorded. It did not 

reference MedCon’s half interest in Lot 7. The 1st Bank Assignment was recorded on 

July 11, 2008. By December 2010, PBH and Mr. Halling had failed to make any 

payments to 1st Bank and entered into a deed in lieu of foreclosure, pursuant to which 

PBH and Mr. Halling conveyed PBH’s half interest in Lot 7 to 1st Bank, in exchange for 

which 1st Bank released PBH and Mr. Halling from all obligations on the PBH Note and 

Mortgage. The deed in lieu of foreclosure was recorded on February 19, 2013.

[¶5] When Mr. Halling and PBH executed the deed in lieu of foreclosure with 1st Bank 

in 2010, Mrs. Halling, individually and as the president of MedCon, also signed the deed, 

assigning any and all interests MedCon had in Lot 7 to 1st Bank: 

That pursuant to that certain Warranty Deed dated 

September 11, 2007, and recorded in the office of the Lincoln 

County Clerk on September 17, 2007, in Book 672, page 342, 

Recording No. 933171, Med Con, Inc., a Utah corporation, 

may own or claim to own an interest in the Property. Med 

Con, Inc., whose president is Joyce L. Halling, the spouse of 

David F. Halling, is a related entity to Mortgagor herein. In 

consideration of the release from liability by 1ST Bank 

 

1 By a Warranty Deed, Mr. Bentley conveyed and warranted to:

Med Con, Inc., a Utah Corporation an undivided 50% interest and 

Professional Business Holdings, LP, a Utah Limited Partnership, an 

undivided 50% interest, as tenants in common grantee(s), . . . the 

following described real estate, situate in Lincoln County and State of 

Wyoming, to wit:

Lot 7 of the Estates At Valli-Vu, Lincoln County, Wyoming as described 

on the official plat filed on December 1, 2006 as instrument No. 924974 

of the records of the Lincoln County Clerk.
3

herein, Med Con., Inc., will join in this agreement and convey 

to 1ST Bank any and all interest it may have in the Property. 

Therefore, for purposes of this agreement, the conveyance of 

the Property to 1ST Bank and the release from liability of 

David F. Halling, individually, Professional Business 

Holdings, LP, Joyce L. Halling, individually, and Med Con, 

Inc., by 1ST Bank, the terms Mortgagor and Grantor as used 

herein shall be deemed to also include Joyce L. Halling, 

individually, and Med Con, Inc.

[¶6] Mr. Halling testified during his deposition that at the time he and Mrs. Halling

signed the deed it “was my understanding and my understanding from the bank that [1st 

Bank] would release us from any and all liabilities relative to the total property.” 1st

Bank, however, had no interest in MedCon’s undivided half interest to release. 

[¶7] When it purchased its half interest in Lot 7, MedCon executed a promissory note 

(MedCon Note), promising to pay Mr. Bentley the $124,520.00 purchase price. The 

MedCon Note provided that full payment of the loan would be due on August 17, 2009, 

would “accrue @ 6% monthly,” and that no payments were required during the term of 

the loan. Mrs. Halling, individually and as president of MedCon, also executed a 

mortgage (MedCon Mortgage) of MedCon’s half interest in Lot 7 as security for the 

MedCon Note. The MedCon Mortgage was recorded on September 17, 2007.

[¶8] In October 2008, Mr. Bentley assigned all of his rights, title, and interest in the 

MedCon Note (Yovanovich Assignment) to David A. Yovanovich and Ornella Dalla 

Bona (collectively “Yovanovich”). Two years later, Mr. Bentley executed an 

Assignment of Mortgage, assigning Yovanovich all of his rights, title, and interest in the 

MedCon Mortgage. No payments were made on the MedCon Note.

[¶9] In 2014, Yovanovich, as holder of the MedCon Note and MedCon Mortgage, 

attempted to collect on the indebtedness, and when the attempts were unsuccessful, sued

for breach of contract seeking judgment on the MedCon Note. Yovanovich moved for 

summary judgment, and MedCon opposed the motion, arguing genuine issues of material 

fact existed as to: (1) whether the Yovanovich Assignment created a lawfully enforceable 

contract between Yovanovich and MedCon; (2) whether the Yovanovich Assignment was 

null and void because Mr. Bentley had previously assigned all of his rights in MedCon’s 

half interest in Lot 7 to 1st Bank via the 1st Bank Assignment; (3) whether the deed in 

lieu of foreclosure released MedCon from any liability related to its half interest in Lot 7; 

and (4) whether Yovanovich was entitled to damages.

[¶10] The district court found that: (1) the Yovanovich Assignment created a legally 

enforceable contract between Yovanovich and MedCon; (2) the 1st Bank Assignment 

only included Mr. Bentley’s rights and interests in PBH’s half interest in Lot 7; (3) 
4

although the Hallings believed the deed in lieu of foreclosure released MedCon from its 

payment obligations related to Lot 7, it only released PBH and Mr. Halling; and (4) 

MedCon breached the contract by failing to make any payments on the MedCon Note and 

therefore Yovanovich was entitled to damages. Based on these findings, the district court 

granted Yovanovich’s motion and awarded damages in the amount of $140,353.00, 

which represented the original loan amount, plus interest at an annual rate of 6 percent, 

accruing monthly for the two-year period of the MedCon Note.

[¶11] After the district court granted summary judgment, MedCon moved to amend its 

answer pursuant to Rule 15 of the Wyoming Rules of Civil Procedure. MedCon 

contended that because the district court found that MedCon did not release its undivided 

half interest to 1st Bank when Mrs. Halling and MedCon signed the deed in lieu of 

foreclosure, it had a right to assert a counterclaim against Yovanovich, claiming a 

competing interest in Lot 7. The district court denied MedCon’s motion to amend. 

MedCon timely appealed the grant of summary judgment and denial of its motion to 

amend and Yovanovich cross-appealed the district court’s calculation of damages.

STANDARD OF REVIEW

[¶12] We review a grant of summary judgment deciding a question of law de novo. Sky 

Harbor Air Serv., Inc. v. Cheyenne Reg’l Airport Bd., 2016 WY 17, ¶ 40, 368 P.3d 264, 

272 (Wyo. 2016). In doing so, “We review a summary judgment in the same light as the 

district court, using the same materials and following the same standards.” Thornock v. 

PacifiCorp, 2016 WY 93, ¶ 10, 379 P.3d 175, 179 (Wyo. 2016) (quoting Rogers v. 

Wright, 2016 WY 10, ¶ 7, 366 P.3d 1264, 1269 (Wyo. 2016)). “No deference is accorded 

to the district court on issues of law, and we may affirm the summary judgment on any 

legal grounds appearing in the record.” Cont’l Western Ins. Co. v. Black, 2015 WY 145, 

¶ 13, 361 P.3d 841, 845 (Wyo. 2015). “The summary judgment can be sustained only 

when no genuine issues of material fact are present and the moving party is entitled to 

judgment as a matter of law.” Id. To the extent the issues require us to use a different 

standard of review, we explain that in our discussion.

DISCUSSION

I. Did the district court err as a matter of law when it held that Yovanovich had an 

enforceable contract right against MedCon?

[¶13] The district court ruled that there was an enforceable contract between 

Yovanovich and MedCon, and that MedCon breached the agreement by failing to pay

Yovanovich the amount due under the MedCon Note. “The elements for a breach of 

contract claim consist of a lawfully enforceable contract, an unjustified failure to timely 

perform all or any part of what is promised therein, and entitlement of injured party to 

damages.” Schlinger v. McGhee, 2012 WY 7, ¶ 12, 268 P.3d 264, 268 (Wyo. 2012), as 

amended on reh’g (Feb. 7, 2012) (quoting Reynolds v. Tice, 595 P.2d 1318, 1323 (Wyo. 

1979)). 
5

[¶14] MedCon first contends that no lawfully enforceable contract exists because Mr. 

Bentley previously had assigned any rights he had under the MedCon Note and MedCon 

Mortgage to 1st Bank via the 1st Bank Assignment, making the Yovanovich Assignment

a nullity. The district court found that the Yovanovich Assignment was enforceable 

because Mr. Bentley transferred only his interest in PBH’s undivided half interest in the 

1st Bank Assignment, and did not include MedCon’s half interest.

[¶15] Mr. Bentley’s 2007 transaction with the Hallings, PBH, and MedCon created two 

separate and distinct interests in Lot 7, making PBH and MedCon tenants in common.

A tenancy in common is generally defined as the holding of 

property by several persons by several and distinct titles, with 

unity of possession only. Stated another way, a tenancy in 

common is a form of ownership in which each cotenant owns 

a separate fractional share of undivided property. Each 

cotenant’s title is held independently of the other cotenants.

86 C.J.S. Tenancy in Common § 1 (February 2017 update); see also Sharples Corp. v. 

Sinclair Wyo. Oil Co., 62 Wyo. 341, 358, 167 P.2d 29, 34 (1946) (“Their estates are legal 

and several; the only union between them being that of possession.”). “Tenants in 

common may each unilaterally alienate their shares through sale or gift or place 

encumbrances upon these shares.” United States v. Craft, 535 U.S. 274, 280, 122 S.Ct. 

1414, 1421, 152 L.Ed. 2d 437 (2002). 

[¶16] MedCon encumbered its interest separate from PBH’s encumbrance of its interest, 

and the plain language of the 1st Bank Assignment supports the finding that Mr. Bentley 

assigned only his interest in PBH’s undivided half interest to 1st Bank. The 1st Bank 

Assignment identified the PBH Mortgage and any property covered by the mortgage as 

the collateral, and referred to the book and page number where the PBH Mortgage was 

recorded. David Halling, individually and as manager of PBH, consented to the 1st Bank 

Assignment as evidenced by his signature. There is no reference to Joyce Halling, 

MedCon, or Mr. Bentley’s rights in MedCon’s half interest in Lot 7 in the 1st Bank 

Assignment. Mr. Bentley retained his interests in MedCon’s half interest in Lot 7, and 

properly assigned it to Yovanovich. We affirm the district court’s entry of summary 

judgment, finding that a lawfully enforceable contract existed between Yovanovich and 

MedCon.

[¶17] MedCon next argues that because the 1st Bank Assignment was recorded prior to 

the Yovanovich Assignment, Yovanovich had notice that Mr. Bentley previously had 

assigned all of his interests in Lot 7, and the 1st Bank Assignment takes precedence over 

the Yovanovich Assignment. MedCon relies on Wyo. Stat. Ann. § 34-1-121(a), which 

states in part: 
6

(a) Each and every deed, mortgage, instrument or 

conveyance touching any interest in lands, made and 

recorded, according to the provisions of this chapter, shall be 

notice to and take precedence of any subsequent purchaser or 

purchasers from the time of the delivery of any instrument at 

the office of the county clerk, for record. 

Wyo. Stat. Ann. § 34-1-121(a) (LexisNexis 2015). “[T]he primary purpose of our 

recording statute is to secure certainty of title,” Countrywide Home Loans, Inc. v. First 

Nat’l Bank of Steamboat Springs, N.A., 2006 WY 132, ¶ 22, 144 P.3d 1224, 1231 (Wyo. 

2006), “by publicity of other conveyances, and a grantee should seasonably record the 

instrument conveying property to him in order to effectuate this purpose.” Condos v. 

Trapp, 717 P.2d 827, 832 (Wyo. 1986), on reh’g, 739 P.2d 749 (Wyo. 1987). As we 

discussed, Mr. Bentley’s 2007 transaction with the Hallings, PBH, and MedCon created 

two separate and distinct interests in Lot 7. See supra ¶¶ 15-16. The recording statute 

does not transform two separate interests in property into one, nor would it have any 

effect on the two separate promissory notes. We affirm the district court’s entry of 

summary judgment, finding that there is no issue over whether the 1st Bank Assignment 

took precedence over the Yovanovich Assignment.

II. Did the district court err as a matter of law when it found that the Yovanovich 

Assignment was not ambiguous?

[¶18] MedCon argues that the Yovanovich Assignment is ambiguous and therefore did 

not assign the MedCon Note to Yovanovich. The Yovanovich Assignment states in

relevant part: 

. . . all rights, title and interest in and to that certain 

Promissory Note dated Aug 17, 2007, in the original principal 

amount of $124,520.00, executed by DAVID F. HALLING, 

JOYCE L. HALLING and MED CON, INC., as Makers, 

which is payable to the order of Assignor. 

MedCon contends that “[T]he plain language of [this] Assignment specifically transfers 

to [Yovanovich] an interest in a note signed by David F. Halling . . . .” The MedCon 

Note is not executed by David F. Halling. Yovanovich argues that the inclusion of David 

Halling’s name was a simple error and did not create an ambiguity, and even if it did 

create an ambiguity, the intent of the parties was discernible by the extrinsic evidence in 

the record.

[¶19] “Assignments are contracts and are interpreted in accordance with the rules of 

contract interpretation.” Comet Energy Servs., LLC v. Powder River Oil & Gas Ventures, 
7

LLC, 2010 WY 82, ¶ 13, 239 P.3d 382, 386 (Wyo. 2010) (citing Boley v. Greenough, 

2001 WY 47, ¶ 11, 22 P.3d 854, 858 (Wyo. 2001)). “Whether a term in a contract is 

ambiguous is a matter of contract interpretation.” Winter v. Pleasant, 2010 WY 4, ¶ 9, 

222 P.3d 828, 833 (Wyo. 2010). 

Our primary focus in construing or interpreting a 

contract is to determine the parties’ intent, and our initial 

inquiry centers on whether the language of the contract is 

clear and unambiguous. If the language of the contract is 

clear and unambiguous, then we secure the parties’ intent 

from the words of the agreement as they are expressed within 

the four corners of the contract. Common sense and good 

faith are leading precepts of contract construction, and the 

interpretation and construction of contracts is a matter of law 

for the courts.

Id. at ¶ 9, 222 P.3d at 834 (quoting Cent. Wyo. Med. Lab., LLC v. Med. Testing Lab, Inc., 

2002 WY 47, ¶ 16, 43 P.3d 121, 127 (Wyo. 2002) (internal citations omitted). “Even if 

there [is] an ambiguous term or portion of the contract, extrinsic evidence is not 

considered if the meaning of the ambiguous term or portion of the contract can be 

ascertained from other language of the contract, i.e., from the contract as a whole.” 

Amoco Prod. Co. v. Stauffer Chem. Co. of Wyo., 612 P.2d 463, 466 (Wyo. 1980). 

[¶20] The Yovanovich Assignment references the MedCon Note, and the district court 

appropriately determined the parties’ intent from both documents. Prudential Preferred 

Properties v. J & J Ventures, Inc., 859 P.2d 1267, 1271 (Wyo. 1993) (“[E]ach document 

before the court represents an integrated contract requiring the court to construe the 

parties’ intent from the terms of that particular agreement.”); see also Hensley v. 

Williams, 726 P.2d 90, 94 (Wyo. 1986) (“A written agreement may consist of more than 

one document, and reference in a contract to extraneous writings renders them part of the 

agreement.”). We agree with the district court that, reading the integrated contract as a 

whole, the parties’ intent is clear: Mr. Bentley assigned the MedCon Note to Yovanovich,

the MedCon Note is dated August 17, 2007, for the sum of $124,520.00, and is executed 

by Mrs. Halling, individually and as President of MedCon. No other promissory note is 

part of the record. The inclusion of Mr. Halling’s name in the Yovanovich Assignment

did not create an obscure or double meaning to make the assignment ambiguous. 

Whitney Holding Corp. v. Terry, 2012 WY 21, ¶ 41, 270 P.3d 662, 674 (Wyo. 2012) (“A 

contract is ambiguous if indefiniteness of expression or double meaning obscures the 

parties’ intent.” (citation omitted)). A review of extrinsic evidence is not necessary 

because there is no ambiguity. Amoco Prod., 612 P.2d at 466.

[¶21] MedCon also claims that the district court erred by placing the burden on MedCon 

to produce evidence of a note signed by Mr. Halling when it held that “[MedCon] did not 
8

include, in any of their materials submitted in opposition to the motion for summary 

judgment, any note signed by Mr. Halling.” MedCon fails to provide any citations to 

relevant rules or case law supporting its position, and in fact Wyoming law is contrary to 

MedCon’s position:

The party requesting a summary judgment bears the initial 

burden of establishing a prima facie case for summary 

judgment. If he carries his burden, “the party who is 

opposing the motion for summary judgment must present 

specific facts to demonstrate that a genuine issue of material 

fact exists.” [Christensen v. Carbon County, 2004 WY 135, 

¶ 8, 100 P.3d 411, 413 (Wyo. 2004) (quoting Metz Beverage 

Co. v. Wyoming Beverages, Inc., 2002 WY 21, ¶ 9, 39 P.3d 

1051, 1055 (Wyo. 2002)).] We have explained the duties of 

the party opposing a motion for summary judgment as 

follows:

“After a movant has adequately supported the motion 

for summary judgment, the opposing party must come 

forward with competent evidence admissible at trial 

showing there are genuine issues of material fact. The 

opposing party must affirmatively set forth material, 

specific facts in opposition to a motion for summary 

judgment, and cannot rely only upon allegations and 

pleadings . . . , and conclusory statements or mere 

opinions are insufficient to satisfy the opposing party’s 

burden.”

Rice v. Collins Commc’n, Inc., 2010 WY 109, ¶ 8, 236 P.3d 1009, 1013 (Wyo. 2010)

(citations omitted). Once Yovanovich carried the initial burden of establishing a prima 

facie case for summary judgment, MedCon had an affirmative duty to produce specific 

evidence in opposition to the motion, and MedCon failed to meet its burden. There are 

no disputed issues of material fact that the Yovanovich Assignment is unambiguous, and 

we affirm the district court’s findings.

III. Did the district court abuse its discretion when it denied MedCon’s motion for 

leave to amend its answer?

[¶22] After the district court issued summary judgment in favor of Yovanovich, 

MedCon moved to amend its answer pursuant to W.R.C.P. 15(a).2 A district court is 

 

2 A party may amend the party’s pleading once as a matter of course at any 

time before a responsive pleading is served, or if the pleading is one to 
9

vested with broad discretion to determine whether to allow amendment to pleadings. 

Voss v. Goodman, 2009 WY 40, ¶ 14, 203 P.3d 415, 420 (Wyo. 2009). That decision is 

“reviewed for an abuse of discretion, and it will be reversed only for an abuse of 

discretion shown by clear evidence.” Guy v. Lampert, 2015 WY 148, ¶ 14, 362 P.3d 331, 

335 (Wyo. 2015). “Our touchstone inquiry in determining whether a court abused its 

discretion is whether the trial court could have reasonably concluded as it did.” Gould v. 

Ochsner, 2015 WY 101, ¶ 39, 354 P.3d 965, 977 (Wyo. 2015) (quoting Lavitt v. 

Stephens, 2015 WY 57, ¶ 13, 347 P.3d 514, 518 (Wyo. 2015)). The appropriate test to be 

applied by the district court when determining whether to grant a motion to amend is:

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.’

Voss, 2009 WY 40, ¶ 14, 203 P.3d at 420-21 (citations omitted). Any one of the abovestated factors gives a district court reason to deny a motion to amend. Retz v. Siebrandt, 

2008 WY 44, ¶¶ 7-8, 181 P.3d 84, 88-89 (Wyo. 2008); see also Frank v. U.S. West, Inc., 

3 F.3d 1357, 1365 (10th Cir. 1993) (“It is well settled in this circuit that untimeliness 

alone is a sufficient reason to deny leave to amend.”). 

[¶23] Our review is hindered by the absence of any district court order in the record 

denying MedCon’s motion. Forbes v. Forbes, 2015 WY 13, ¶ 37, 341 P.3d 1041, 1053 

(Wyo. 2015) (“[O]ur job becomes complicated when we are presented with a judgment 

which fails to articulate clearly the reasoning behind it.” (citation omitted)). However, 

“[W]e must affirm on appeal if there exists any legally valid ground which appears in the 

record supporting the judgment.” Id.

[¶24] MedCon sought leave to amend its answer to assert a counterclaim against 

Yovanovich, claiming a competing interest in Lot 7. MedCon argued that because the 

district court ruled on summary judgment that MedCon had not released its interest in Lot 

7 via the deed in lieu of foreclosure, it was entitled to assert a competing claim in the 

 

which no responsive pleading is permitted and the action has not been 

placed upon the trial calendar, the party may so amend it at any time 

within 20 days after it is served. Otherwise a party may amend the 

party’s pleading only by leave of court or by written consent of the 

adverse party; and leave shall be freely given when justice so requires.

W.R.C.P. 15(a).
10

property against Yovanovich. Yovanovich objected, arguing that there was no good 

cause for the motion, the motion was the product of undue delay, granting the motion 

would have been highly prejudicial to Yovanovich, and the claim was futile.

[¶25] MedCon filed its initial answer on June 18, 2015, and did not move to amend it 

until May 2, 2016, after the district court ordered summary judgment in favor of 

Yovanovich. In Ekberg v. Sharp, Ekberg sought to amend his complaint after the district 

court issued its partial summary judgment ruling in favor of Sharp. 2003 WY 123, ¶¶ 11-

15, 76 P.3d 1250, 1254-55 (Wyo. 2003). Ekberg claimed that he “could not have 

envisioned requesting damages for loss of business income and loss of use of enjoyment 

of the property until the district court issued its order granting partial summary 

judgment . . . .” Id. at ¶ 14, 76 P.3d at 1254-55. The district court denied Ekberg’s 

request, and this Court upheld the denial, holding that Ekberg “should have contemplated 

the damages which reasonably flow from his asserted breach of contract claim.” Id. at 

¶ 14, 76 P.3d at 1255. The same is true for MedCon. In its own response to 

Yovanovich’s demand letter prior to this lawsuit, MedCon restated Yovanovich’s 

position, “Y&B . . . now seek to recover on Note I and Mortgage I on the theory that they 

have never been assigned or foreclosed,” and there was “no evidence that the 

$124,520.00 mortgage on the property was taken by the bank pursuant to this property 

transfer.” MedCon should have contemplated that the district court could find in favor of 

Yovanovich on its theory and tailored its response accordingly. MedCon failed to 

provide good cause why it did not include its proposed counterclaim with its first answer, 

or why it did not move to amend prior to the district court entering summary judgment. 

MedCon waited until after a final order was entered to file its motion to amend, causing 

undue delay under these circumstances. 

[¶26] In addition to the timeliness issues, MedCon’s proposed counterclaim fails to add 

1st Bank as a party to the action, rendering its attempt to amend futile. “A proposed 

amendment is futile if the complaint, as amended, would be subject to dismissal for any 

reason, including that the amendment would not survive a motion for summary 

judgment.” Watson v. Beckel, 242 F.3d 1237, 1239-40 (10th Cir. 2001); see also Bennie 

v. Munn, No. 4:11CV3089, 2012 WL 1574453, at *2 (D. Neb. May 3, 2012) (“Leave to 

amend should be denied as futile ‘where the proposed amendment would not cure the 

defect the party sought to correct.’” (internal citation omitted)). MedCon’s proposed 

counterclaim centers around the deed in lieu of foreclosure executed between 1st Bank, 

David Halling, and Joyce Halling, making the joinder of 1st Bank necessary, and without 

it, the claim is futile. The district court did not abuse its discretion when it denied 

MedCon leave to amend and we affirm the decision. 

IV. Was the district court’s damage calculation clearly erroneous?

[¶27] In its cross-appeal, Yovanovich argues that the district court incorrectly calculated 

the damages by calculating the interest to accrue annually instead of monthly, which 
11

“essentially erased $163,475 of contractually agreed interest on the promissory note.”

The relevant terms of the MedCon Note are: 

1. This loan shall become due and payable twenty four (24) 

months from the date of this Note, which is August 17, 2009. 

Note shall accrue @ 6% monthly.

Yovanovich contends:

[b]y its plain reading, this language can only be read one way: 

the principal amount of the loan is $124,520.00, and each 

month, 6% of this total―or $7,471.20―is added to the 

principal amount for a period of 24 months. As such, at the 

end of 24 months, the total amount due should have been 

$303,828.80.

[¶28] “The issue of whether the district court employed the proper methodology or legal 

standard to calculate the damages award is an issue of law, which we review de novo.”

Knight v. TCB Constr. & Design, LLC, 2011 WY 27, ¶ 16, 248 P.3d 178, 183 (Wyo. 

2011) (citing Cross v. Berg Lumber Co., 7 P.3d 922, 931 (Wyo. 2000)). “However, 

assuming that the district court applied the appropriate methodology to calculate 

damages, the district court’s damages calculation is a question of fact, which we review”

under a clearly erroneous standard. Id. (citing Velasquez v. Chamberlain, 2009 WY 80, 

¶ 27, 209 P.3d 888, 895 (Wyo. 2009)). A finding is “clearly erroneous even though there 

is evidence to support it, if after a review of the entire record, the court is left with the 

definite and firm conviction that a mistake has been committed.” Keever v. Payless Auto 

Sales, Inc., 2003 WY 147, ¶ 7, 79 P.3d 496, 498 (Wyo. 2003) (internal quotation marks 

and citation omitted). The district court interpreted “Note shall accrue @ 6% monthly” to 

mean 6 percent annual interest compounded monthly, and found that “[r]easonable minds 

cannot disagree that [MedCon] owe[s] a total balance of principal and interest of 

$140,353.00 under the note.”

[¶29] Yovanovich claims that the terms of the MedCon Note are clear and unambiguous 

and the district court’s interpretation is contrary to the plain, unambiguous terms of the 

contract. Yovanovich argues that the use of the word “monthly” is in reference to the 

interest rate, and that “the note―not the interest rate―accrues monthly.” This argument 

confuses the terms “accrual” with “interest rate.” “Accrue” means “[t]o accumulate 

periodically; to increase over a period of time <the savings-account interest accrues 

monthly>.” Black’s Law Dictionary 25 (10th ed. 2014). It is not the note itself that 

accrues; it is the interest that accrues. “Accrued interest” is “[i]nterest that is earned but 

not yet paid.” Black’s Law Dictionary 935 (10th ed. 2014). In contrast, “interest rate” is 

“[t]he percentage of an amount of money which is paid for its use for a specified time,”

and is “[c]ommonly expressed as an annual percentage rate (APR).” Black’s Law 
12

Dictionary 813 (6th ed. 1990). As the district court correctly found, “Note shall accrue 

@ 6% monthly” meant the 6 percent annual interest rate accrued monthly, it did not

convert an annual percentage rate to a monthly one. The district court’s interest

calculation is not clearly erroneous.

V. Did the district court abuse its discretion when it failed to award prejudgment 

interest?

[¶30] Yovanovich argues on cross-appeal that the district court erred when it failed to 

award prejudgment interest. The district court awarded Yovanovich $140,353.00, which 

is the $124,520.00 loan, plus the 6 percent annual interest rate, accruing monthly, for the 

two-year period of the MedCon Note. That was the full amount due at the time the 

MedCon Note expired on August 17, 2009. The district court awarded no interest for the 

period from August 17, 2009 to April 4, 2016, the date it entered the judgment. “[T]he 

question of whether a judge is entitled to award prejudgment interest in a particular case 

is a question of law that we review de novo, while the question of whether prejudgment 

interest should be awarded is reviewed for an abuse of discretion.” KM Upstream, LLC 

v. Elkhorn Constr., Inc., 2012 WY 79, ¶ 44, 278 P.3d 711, 727 (Wyo. 2012) (emphasis in 

original). “Prejudgment interest is allowed on the theory that an injured party should be 

fully compensated for his or her loss.” Stewart Title Guar. Co. v. Tilden, 2008 WY 46, 

¶ 28, 181 P.3d 94, 103 (Wyo. 2008) (citation omitted). We have said that “parties are 

entitled to the use of money owed them, that ‘the use of money has real economic value,’ 

and that ‘[p]rejudgment interest should [be] awarded as an attempt to compensate for that 

loss.’” Id. (quoting Goodwin v. Upper Crust of Wyo., Inc., 624 P.2d 1192, 1198 (Wyo. 

1981)).

[¶31] “Prejudgment interest is available if a two-part test is met: (1) the claim must be 

liquidated, as opposed to unliquidated, meaning it is readily computable via simple 

mathematics; and (2) the debtor must receive notice of the amount due before interest 

begins to accumulate.” KM Upstream, LLC, 2012 WY 79, ¶ 45, 278 P.3d at 727; see also

Tilden, 2008 WY 46, ¶ 28, 181 P.3d at 103-04 (Prejudgment interest “is appropriate 

when the underlying recovery is compensatory in nature and when the amount at issue is 

easily ascertainable and one upon which interest can be easily computed.” (citation 

omitted)); O’s Gold Seed Co. v. United Agri-Products Fin. Servs., Inc., 761 P.2d 673, 

677 (Wyo. 1988) (“Prejudgment interest is recoverable in Wyoming on liquidated claims 

but not on unliquidated claims, with a liquidated claim being defined as one that is 

readily computable by basic mathematical calculation.”).

[¶32] In Pennant Serv. Co. v. True Oil Co., LLC, 2011 WY 40, ¶ 35-41, 249 P.3d 698, 

711-12 (Wyo. 2011), we reversed when the district court refused to award prejudgment 

interest on a liquidated sum in a breach of contract case where the opposing party had 

notice of the amount sought. Here, the amount sought to be recovered was a sum certain,

and MedCon had notice of the debt prior to the district court granting Yovanovich 
13

summary judgment. Although we may affirm the district court’s ruling on any legal basis 

appearing in the record, we find no basis for the district court’s failure to award 

prejudgment interest.

[¶33] MedCon does not contend that Yovanovich is not entitled to prejudgment interest, 

but it argues that Yovanovich failed to request it in the complaint, and therefore is not 

entitled to it. However, Rule 54 of the Wyoming Rules of Civil Procedure states in part: 

(c) Demand for Judgment.―A judgment by default 

shall not be different in kind from or exceed in amount that 

prayed for in the demand for judgment. Except as to a party 

against whom a judgment is entered by default, every final 

judgment shall grant the relief to which the party in whose 

favor it is rendered is entitled, even if the party has not 

demanded such relief in the party’s pleadings.

W.R.C.P. 54 (emphasis added). Under this rule, a party does not waive its request for 

prejudgment interest by omitting the request from pretrial submission. See Equal Emp’t 

Opportunity Comm’n v. Massey-Ferguson, Inc., 622 F.2d 271, 277 (7th Cir. 1980) (“Rule 

54(c) of the Federal Rules of Civil Procedure allows the district court to award the relief 

to which a prevailing party is ‘entitled’ regardless whether such relief was sought in the 

complaint.”); see also Kahan v. Rosenstiel, 424 F.2d 161, 174 (3d Cir. 1970) (“Plaintiff’s 

complaint does not specifically ask for equitable relief; it contains only the general 

request for ‘further relief as may be just.’ Nonetheless, under Rule 54(c) of the Federal 

Rules of Civil Procedure, a court may have awarded any relief appropriate under the 

circumstances.”).

3

[¶34] Yovanovich asserts it is entitled to the statutory rate of 7 percent for prejudgment 

interest. Wyo. Stat. Ann. § 40-14-106(e) (LexisNexis 2015) provides, “[i]f there is no 

agreement or provision of law for a different rate, the interest of money shall be at the 

rate of seven percent (7%) per annum.” The parties agreed to 6 percent annual interest 

accruing monthly during the two-year term of the MedCon Note, but failed to specify the 

rate to be applied after the maturity of the note. Some jurisdictions find that when an 

obligation is payable at a future date with an agreed upon interest rate, but fail to provide 

a rate to apply after maturity, the statutory rate of interest will apply after maturity. See

Holden v. Freedman’s Sav. & Trust Co., 100 U.S. 72, 74, 25 L.Ed. 567 (1879) (finding 

that when an agreement of the parties extends no further than to the time fixed for the 

payment of the principal, if payment is not made when the money becomes due, the legal 

 

3

“Since the Wyoming Rules of Civil Procedure are patterned after their federal counterparts, “we have 

found federal court interpretations of their rules highly persuasive for interpretations of our corresponding 

rules.” Grove v. Pfister, 2005 WY 51, ¶ 9, 110 P.3d 275, 279 (Wyo. 2005). 
14

rate of interest will then apply); Buckley v. Buckley, 133 A.2d 604, 606 (Conn. 1957) 

(Agreed upon interest rate of 4 percent applied up until date of maturity, thereafter, 

statutory rate of 6 percent applied); Metro. Sav. Bank v. Tuttle, 49 N.E.2d 983, 984 (N.Y. 

1943) (“After maturity, in the absence of other agreement, the interest is computed as 

damages according to the rate then prescribed by law, whether that is more or less than 

the contract rate.”). Other jurisdictions have found that when an obligation is silent as to 

the rate to be paid after maturity, the stipulated rate continues in effect. See Astoria Fed. 

Sav. & Loan Ass’n v. Rambalakos, 372 N.Y.S.2d 689, 690 (N.Y. App. Div. 1975) (“[T]he 

contract rate, rather than the statutory rate, governs the rate of interest after maturity and 

before judgment.”); Petroscience Corp. v. Diamond Geophysical, Inc., 684 S.W.2d 668, 

668 (Tex. 1984) (“[U]nder Texas law, when a note specifies a rate of interest before 

maturity but is silent about any rate after maturity, the prematurity rate is implied as the

post-maturity rate.”); Town of Ohio v. Frank, 103 U.S. 697, 698, 26 L.Ed. 531 (Ohio 

1880) (“[A] note given for a sum of money, bearing interest at a given rate per month, 

continues to bear that rate of interest as long as the principal remains unpaid.”). 

[¶35] We agree with the latter approach. In a question of statutory interpretation, our 

primary goal is to give effect to the legislature’s intent. L & L Enters. v. Arellano (In re 

Arellano), 2015 WY 21, ¶ 13, 344 P.3d 249, 252 (Wyo. 2015). “Where legislative intent 

is discernible a court should give effect to the ‘most likely, most reasonable, 

interpretation of the statute, given its design and purpose.’” Adekale v. State, 2015 WY 

30, ¶ 12, 344 P.3d 761, 765 (Wyo. 2015) (quoting Rodriguez v. Casey, 2002 WY 111, 

¶ 20, 50 P.3d 323, 329 (Wyo. 2002)). Wyo. Stat. Ann. § 40-14-106(e) provides the rate 

to be applied in the absence of an agreement or provision of law. Here, the parties have 

agreed to an interest rate, and there is no absence of an agreement such that the statutory 

interest rate should fill the void. We remand for an award of prejudgment interest 

consistent with the law outlined above.

VI. Did the district court err as a matter of law when it failed to award post-judgment 

interest?

[¶36] The purpose of post-judgment interest is to “compensate the successful plaintiff 

for being deprived of compensation for the loss from the time between the ascertainment 

of the damages and the payment by the defendant.” Dorr v. Smith, Keller & Assocs., 

2010 WY 120, ¶ 13, 238 P.3d 549, 552 (Wyo. 2010). The parties agreed to a 6 percent

annual interest rate accruing monthly, and for the reasons discussed supra ¶¶ 34, 35, the 

rate of interest on the decree or judgment shall correspond to the terms of the contract.

[¶37] Yovanovich asserts that the district court also erred when it failed to award post 

judgment interest. Wyo. Stat. Ann. § 1-16-102 (LexisNexis 2015) provides in part: 

§ 1-16-102. Interest on Judgments.

(a) Except as provided in subsections (b) and (c) of 

this section, all decrees and judgments for the payment of 
15

money shall bear interest at ten percent (10%) per year from 

the date of rendition until paid. 

(b) If the decree or judgment is founded on a contract 

and all parties to the contract agreed to interest at a certain 

rate, the rate of interest on the decree or judgment shall 

correspond to the terms of the contract.

“The use of the word ‘shall’ in a statute makes the provision mandatory.” Wyo. Dep’t of 

Revenue v. Qwest Corp., 2011 WY 146, ¶ 30, 263 P.3d 622, 632 (Wyo. 2011).

4 All 

decrees and judgments for the payment of money bear post-judgment interest. Parker v. 

Artery, 889 P.2d 520, 527 (Wyo. 1995) (“In Wyoming, statutory interest begins to accrue 

when a judgment is entered.”). Post-judgment interest is available under Wyo. Stat. Ann. 

§ 1-16-102(a) and (b) whether it is stated in the judgment or not. It would be helpful to 

the parties, as well as this Court, if the district court identified the post-judgment rate of 

interest in its order if that rate differs from the statutorily prescribed rate, although not 

required. Thus, there was no error in the district court’s order with respect to the award 

of post-judgment interest. 

CONCLUSION

[¶38] The district court’s conclusion that Yovanovich had an enforceable contract 

against MedCon and that the Yovanovich Assignment was not ambiguous was not error. 

The district court did not abuse its discretion in denying MedCon’s motion for leave to 

amend its answer and the damage calculation was not clearly erroneous. However, the 

district court abused its discretion when it failed to award Yovanovich prejudgment

interest. The district court did not err when it failed to specify post-judgment interest in 

its order, because decrees and judgments for the payment of money bear post-judgment 

interest as mandated by Wyo. Stat. Ann. § 1-16-102(a) and (b). Accordingly, we affirm 

in part, reverse in part, and remand for proceedings consistent with this opinion. 

 

4 We recently held that “[t]here is no question § 1-16-102 requires that all decrees and judgments for the 

payment of money bear interest at the rate of 10% per year from the date of rendition until paid. The 

statute uses the word ‘shall,’ a word we have repeatedly said is mandatory.” Sinclair v. Sinclair, 2015 

WY 120, ¶ 11, 357 P.3d 1100, 1103 (Wyo. 2015). However, in Sinclair, we recognized a limited 

exception:

When a Wyoming court enters a divorce decree requiring a party to pay a 

fixed sum of money and does not set a date for payment different than 

the date the decree is rendered, § 1-16-102 applies and payment of 

interest is required. However, when a district court enters a decree and,

in the exercise of its discretion to fashion a just and equitable property 

division, sets a date for payment different than the date the decree is 

rendered or provides for payment over time, it is not required to impose 

interest.

Id. at ¶ 20, 357 P.3d at 1105-06. The exception in Sinclair is inapplicable to this case.