*

 This order and judgment is not binding precedent except under the doctrines of

law of the case, res judicata and collateral estoppel. The court generally disfavors the

F I L E D

United States Court of Appeals

Tenth Circuit

AUG 17 1998

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

__________________________

VOLLAND D. HALLEY; GENE EUCKER,

Plaintiffs-Appellants,

v.

MUTUAL OF OMAHA INSURANCE

COMPANY; UNITED OF OMAHA LIFE

INSURANCE COMPANY; OMAHA PROPERTY

AND CASUALTY COMPANY; MUTUAL OF

OMAHA FUND MANAGEMENT COMPANY,

Defendants-Appellees.

No. 97-8019

(D. Wyo.)

(D.Ct. No. 95-CV-202-B)

JOHN FERRI; TERRY PAUL HALLEY; JOHN

MYRICK,

Plaintiffs-Appellants,

v.

MUTUAL OF OMAHA INSURANCE

COMPANY; UNITED OF OMAHA LIFE

INSURANCE COMPANY; OMAHA PROPERTY

AND CASUALTY COMPANY; MUTUAL OF

OMAHA FUND MANAGEMENT COMPANY,

Defendants-Appellees.

No. 97-8020

(D. Wyo.)

(D.Ct. No. 95-CV-204-B)

__________________________

ORDER AND JUDGMENT*
citation of orders and judgments; nevertheless, an order and judgment may be cited under

the terms and conditions of 10th Cir. R. 36.3.

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Before BRORBY, KELLY, and HENRY, Circuit Judges.

__________________________

Volland D. Halley and Eugene Eucker, formerly general agents for Mutual

of Omaha Insurance Company, sued the Company for breach of contract in the

United States District Court for the District of Wyoming. John Ferri, Terry Paul

Halley, and John Myrick, formerly district sales managers for the general agents,

sued the Company as third-party beneficiaries to the contracts of Messrs. Halley

and Eucker. The derivative claims of the former district sales managers were

consolidated with the contract claims of the former general agents. The district

court determined the Company was entitled to summary judgment as a matter of

law because the former agent's breach of contract claims were time-barred. We

have jurisdiction under 28 U.S.C. § 1291, and we affirm the decision of the

district court.

Mutual of Omaha Insurance Company sells financial products, including

insurance. The Company marketed these products through independently owned

and operated general agencies, and through Company-owned and operated

division offices. Mr. Volland Halley owned a general agency located in
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Cheyenne, Wyoming, where Mr. Terry Halley served as a district sales manager. 

Mr. Eucker owned a general agency located in Spokane, Washington, where

Messrs. Myrick and Ferri served as district sales managers.

The Company’s relationship to each of the general agents was governed by

a written contract. The general agents, in turn, contracted with the district sales

managers. The Company's contracts with the general agents provided for

termination by either party at any time, with or without cause.

Starting in 1988, the Company implemented a series of changes which

allegedly breached the contracts of the general agents. The general agents allege,

inter alia , that the Company imposed minimum production standards, essentially

sales quotas, on the general agents and required termination of sales agents who

failed to meet the quotas; charged general agents higher rates than those charged

to division offices for the same products; and withdrew products from sale by

general agents.

Ultimately, faced with the prospect of termination for failure to comply

with the new Company requirements, Messrs. Halley and Eucker resigned in

1990. They subsequently brought suit, contending the changes implemented by
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the Company breached their contracts.

When the general agents resigned, their respective district sales managers

were effectively terminated. Consequently, the district sales managers brought a

second action against the Company, claiming to be third party beneficiaries to the

contracts between their respective general agents and the Company.

Because relevant acts in this case occurred in Nebraska, where the

Company's home offices are located, and in Wyoming and Washington, where the

general agencies were owned and operated, the district court applied the law of

the forum state, Wyoming’s “borrowing” statute, to ascertain the applicable

statute of limitations. As a result of its inquiry, the district court concluded the

Nebraska five-year statute of limitations for breach of written contract actions

applied to the claims raised by the general agents. The district court further

determined these breach of contract claims were time-barred. Accordingly, the

district court granted the Company’s motions for summary judgment on all claims

in both suits.

The former general agents and sales managers, collectively the Plaintiffs,

now appeal the grant of summary judgment, claiming the district court erred in
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determining when and where their cause of action arose. We review the grant of

summary judgment de novo , applying the same well-recognized legal standard

used by the district court pursuant to Fed. R. Civ. P. 56(c). See Kaul v. Stephan ,

83 F.3d 1208, 1212 (10th Cir. 1996). We examine the record in the light most

favorable to the nonmoving party. Thomas v. International Bus. Mach. , 48 F.3d

478, 484 (10th Cir. 1995).

In this case, each of the three states where relevant acts occurred has a

different statute of limitations for a breach of a written contract action. 

Consequently, each state has a different bar date, i.e. , if the cause of action arose

prior to the bar date, the applicable statute of limitations precludes the right of

action. Wyoming has a ten-year statute of limitations, making September 5, 1985

the applicable bar date. Wyo. Stat. Ann. § 1-3-105(a)(i) (Michie 1988). 

Washington has a six-year statute of limitations, making September 5, 1989 the

bar date. Wash. Rev. Code Ann. § 4.16.040(1) (West Supp. 1997). Nebraska has

a five-year statute of limitations, making September 5, 1990 the bar date. Neb.

Rev. Stat. Ann. § 25-205(1) (Michie 1995).

According to the Plaintiffs, the Company began to implement the changes

which allegedly breached the contracts of the general agents in early 1988. The
1

 This court provided an alternative, and perhaps clearer statement 

of Wyoming law in Mullinax Eng'g Co. v. Platte Valley Constr. Co., 412 F.2d 553 (10th

Cir. 1969), where we held that “[u]nder Wyoming law, ‘where a contract is made in one

state to be performed in another, the law of the state of performance will govern unless it

shall clearly appear that the parties intended otherwise.’” Mullinax Eng'g Co., 412 F.2d

at 555 (quoting J.W. Denio Milling Co. v. Malin, 165 P. 1113, 1116 (1917)). However,

the Plaintiffs would fare no better under this statement of the rule than under Cantonwine

and Stanbury. As we discuss infra, Nebraska is the state where most of the performance

occurred with respect to the alleged breaches. Moreover, the choice of law provisions in

the contracts forming the basis of the Plaintiffs’ claims all evidence the parties shared

intent to have Nebraska law govern. Thus, under Mullinax the law of Nebraska would

govern, and Plaintiffs' claims would be barred by Nebraska's five-year statute of

limitations.

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Plaintiffs’ complaints, however, were not filed until September 6, 1995. Thus,

where and when the Plaintiffs’ cause of action actually arose is critical to the

resolution of this case because the applicable Wyoming “borrowing” statute

provides that “[i]f by the laws of the state or country where the cause of action

arose the action is barred, it is also barred in this state.” Wyo. Stat. Ann. § 1-3-

117 (Michie 1988).

Plaintiffs contend the district court erred in determining their cause of

action arose in Nebraska. This is so, Plaintiffs argue, because the district court

incorrectly applied the holding of Cantonwine v. Fehling , 582 P.2d 592 (Wyo.

1978), to the facts of this case, and failed to recognize that the rule of

Cantonwine was modified by Stanbury v. Larsen , 803 P.2d 349 (Wyo. 1990), cert.

denied , 499 U.S. 960 (1991). 1
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In Cantonwine , the Wyoming Supreme Court had to resolve where and

when a cause of action for failure to honor several promissory notes arose, in

order to determine the applicable statute of limitations. Cantonwine , 582 P.2d at

596-98. In applying Wyoming’s borrowing statute, the Wyoming court turned to

the standard for determining where and when a cause of action arises adopted

previously by the Kansas Supreme Court:

The cause of action arises when that is not done which ought to have

been done, or that is done which ought not to have been done. But

the time when the cause of action arises determines also the place

where it arises; for when that occurs which is the cause of action, the

place where it occurs is the place where the cause of action arises.

Id. at 597 (quoting Bruner v. Martin , 93 P. 165, 166 (Kan. 1907) (citation

omitted)) (emphasis omitted). Importantly, the Cantonwine court was further

constrained in making its determination by a Wyoming statute which specified

when a cause of action on a demand instrument arises. Id. at 597-98.

In Stanbury , the Wyoming Supreme Court again was asked to determine

where a cause of action on an unpaid promissory note arose in order to ascertain

the applicable statute of limitations under the Wyoming borrowing statute. 

Stanbury , 803 P.2d at 352-53. The Stanbury court concluded the Wyoming

statute on demand notes had been applied too broadly in Cantonwine and

narrowed the interpretation accordingly. Stanbury , 803 P.2d at 353. However,
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there is nothing in Stanbury to suggest the Wyoming Supreme Court altered its

earlier approval of the Bruner analysis as the generally appropriate means of

determining when and where a cause of action arises. Moreover, in applying

Cantonwine and Stanbury to determine when and where the Plaintiffs’ cause of

action arose, we must be sensitive to the differences between the instruments at

issue in those cases, promissory notes, and the contracts at issue herein.

This court’s task in determining when and where the cause of action in this

case arose is complicated by the Plaintiffs’ rather fluid characterization of the

alleged breach or breaches of the contracts at issue. In their statement of the

“undisputed facts,” the Plaintiffs indicate multiple breaches occurred:

The plaintiffs contend that these changes, which occurred over a

period of time, culminated in an overall breach of the contracts

which were entered into by the [D]efendants’ general agents. 

Ultimately, this series of breaches had the desired effect of forcing

the Defendants’ general agents into resigning from their agencies ....

This characterization comports with the district court’s treatment of the Plaintiffs’

claims as three alleged breaches (the Company’s imposition of sales quotas,

discriminatory pricing, and withdrawal of products), i.e. , a “series of breaches.”

However, the Plaintiffs also contend, for purposes of determining when

their cause of action arose, that the changes implemented by the Company,
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specifically the implementation of sales quotas, “did not ‘breach’ their contract

with the plaintiffs in 1988.” Instead, the Plaintiffs claim the Company’s conduct

“amounts to an ‘anticipatory repudiation’ of the contract entered into with the

plaintiffs and not an actual ‘breach.’” Thus, according to the Plaintiffs, they were

innocent parties allowed to “wait and see if the other party will ultimately

perform under the contract.” Therefore, their argument goes, the “statute of

limitations did not begin to run until 1990 when the defendants made further

performance impossible and the plaintiffs terminated their contracts.” From this

line of reasoning, the Plaintiffs conclude the actual breach did not occur “until the

[Company] materially failed to perform by making performance on the part of the

plaintiffs impossible,” and this did not occur “until 1990 in Washington and

Wyoming.” Consequently, the Plaintiffs claim, the district court erred in fixing

the time when their cause of action arose. We disagree.

The Wyoming Supreme Court has described a repudiation of a contract or

an anticipatory breach as “‘one committed before the time has come when there is

a present duty of performance, and is the outcome of words or acts evincing an

intention to refuse performance in the future.’” J.B. Service Court v. Wharton ,

632 P.2d 943, 945 (Wyo. 1981) (quoting 17 Am. Jur. 2d Contracts § 448 (1964)). 

In determining whether a party to a contract has committed an anticipatory
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breach, “‘it is the intention manifested by his acts and words which controls, and

not his secret intention.’” Id. (quoting 17 Am Jur. 2d Contracts § 448 (1964)). 

Nothing in the documentation concerning the Company’s implementation of

quotas evinces an intention by the Company to refuse performance in the future. 

Plaintiffs themselves admit that when the changes were instituted, the Company

“at that time indicated only their intent to apply minimum production standards

over a three-to-five year period of time, without the stated objective of

eliminating all general agents by the end of December 1992.” Plaintiffs provide

no evidence they contemporaneously recognized the Company's implementation of

quotas in 1988 as an “anticipatory breach.” “‘A mere request for a change in the

terms ... of the contract is not in itself enough to constitute a repudiation.’” Id.,

632 P.2d at 945 (quoting Corbin, Corbin on Contracts § 973, at 905-06 (1951)).

Thus, notwithstanding the Plaintiffs’ strenuous, if not strained, efforts to

somehow portray the Company’s implementation of and on-going efforts to

enforce sales quotas as an anticipatory repudiation of the contracts, we agree with

the analysis of the district court. Under the general principle of Cantonwine , the

Company’s decision to impose sales quotas was the action “which ought not to

have been done,” and Plaintiffs’ cause of action, if any, arose in 1988 when that

decision was made. See 582 P.2d at 597. We also note that the factual record is
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consistent with our legal conclusion; the former general agents recognized the

Company’s decision to impose sales quotas as a breach of their contracts when the

decision was made in 1988.

The district court determined the other two alleged breaches, discriminatory

pricing and withdrawal of products, also occurred more than five years before the

Plaintiffs filed their claims. The record indicates the Company practice of

charging discriminatory rates to general agents was in place in 1988. The

withdrawal of certain products from sale by general agents occurred prior to June

1990. On appeal, Plaintiffs provide no evidence or argument to the contrary.

Accordingly, we reject Plaintiffs’ claim that the district court erred in

determining when the alleged breaches of the contracts occurred. The cause or

causes of action arising from the imposition of the sales quotas and discriminatory

pricing arose in 1988. Any cause of action based on the withdrawal of products

had arisen by June of 1990.

Plaintiffs further contend the district court erred in determining where their

cause of action arose. They claim under Stanbury “the test” for determining

where a cause of action arises is “where performance is to be made.” See
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Stanbury , 803 P.2d at 353. Plaintiffs claim performance was to occur in

Wyoming and Washington, where the general agencies were located. In support

of this claim, the Plaintiffs point to the fact that each general agent was assigned

to a geographic territory in Wyoming and Washington, and was required to

conduct operations in that area; all their business was written in Wyoming and

Washington; and they were prevented from performing their duties in Wyoming

and Washington when the sales quotas were enforced.

But Plaintiffs’ designation of the place of performance presupposes their

characterization of the breach as the Company’s “making performance on the part

of the plaintiffs impossible.” The breaches actually alleged were changes in

administrative practices made by the Company from their home offices in Omaha,

Nebraska. The performance complained of is that of the Company, and took place

in Nebraska.

Because the act or acts “which ought not to have been done,” the alleged

breaches of the contracts, were decisions made and implemented in Nebraska,

Plaintiffs' cause or causes of action arose in Nebraska. Under Wyoming’s

borrowing statute, the court must apply the Nebraska five-year statute of

limitations. Coupled with our finding that the alleged breaches occurred prior to
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September 5, 1990, we conclude each of the Plaintiffs’ claims is time-barred.

Accordingly, the decision of the district court is AFFIRMED .

Entered by the Court:

WADE BRORBY

United States Circuit Judge