Kasten Berry Inc. v. Stewart

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KASTEN BERRY INC.,
Plaintiff,
v.
WALLACE “WAYNE” STEWART,
Defendant.
Case No. 24-2270-JAR
MEMORANDUM AND ORDER
Plaintiff Kasten Berry Inc. (“Kasten”) originally filed this removal action against
Defendant Wallace “Wayne” Stewart (“Stewart”) in Johnson County, Kansas District Court.
The case was removed to this District on June 21, 2025.1 Plaintiff alleges three causes of action:
(1) breach of contract (Count I); (2) breach of fiduciary duty (Count III); and (3) the faithless
servant doctrine (Count IV). Now before the Court is Kasten’s Motion for Partial Summary
Judgment (Doc. 100) on Count I, including damages arising from Stewart’s breach in the amount
of $253,453.94, and reasonable costs and attorney’s fees. This motion is fully briefed, and the
Court is prepared to rule. For the reasons stated below, the Court grants in part and denies in
part Kasten’s motion for partial summary judgment.
I. Legal Standard
Summary judgment is appropriate if the moving party demonstrates that there is no
genuine dispute as to any material fact and that it is entitled to judgment as a matter of law.2 In
applying this standard, the court views the evidence and all reasonable inferences therefrom in
1 Doc. 1.
2 Fed. R. Civ. P. 56(a); see also Grynberg v. Total, 538 F.3d 1336, 1346 (10th Cir. 2008).
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the light most favorable to the nonmoving party.3 “There is no genuine issue of material fact
unless the evidence, construed in the light most favorable to the nonmoving party, is such that a
reasonable jury could return a verdict for the nonmoving party.”4 A fact is “material” if, under
the applicable substantive law, it is “essential to the proper disposition of the claim.”5 An issue
of fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the
non-moving party.”6
To prevail on a motion for summary judgment on a claim upon which the moving party
also bears the burden of proof at trial, the moving party must demonstrate “no reasonable trier of
fact could find other than for the moving party.”7 Once the movant has met this initial burden,
the burden shifts to the nonmoving party to “set forth specific facts showing that there is a
genuine issue for trial.”8 Finally, summary judgment is not a “disfavored procedural shortcut”;
on the contrary, it is an important procedure “designed ‘to secure the just, speedy and
inexpensive determination of every action.’”9
In deciding this motion, the Court is mindful that Stewart proceeds pro se; therefore, the
Court must construe his pleadings liberally.10 However, the Court cannot assume the role of
advocate,11 or “construct a legal theory” on Stewart’s behalf.12 Additionally, a pro se litigant is
3 City of Harriman v. Bell, 590 F.3d 1176, 1181 (10th Cir. 2010).
4 Bones v. Honeywell Int’l, Inc., 366 F.3d 869, 875 (10th Cir. 2004).
5 Wright ex rel. Trust Co. of Kan. v. Abbott Labs., Inc., 259 F.3d 1226, 1231–32 (10th Cir. 2001).
6 Thomas v. Metro. Life Ins. Co., 631 F.3d 1153, 1160 (10th Cir. 2011) (quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).
7 Leone v. Owsley, 810 F.3d 1149, 1153 (10th Cir. 2015).
8 Anderson, 477 U.S. at 256.
9 Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986) (quoting Fed. R. Civ. P. 1).
10 Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
11 Id.
12 Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997).
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not excused from complying with the rules of the court and is subject to the consequences of
noncompliance.13
II. Uncontroverted Facts
Stewart has not responded to the majority of Kasten’s statement of uncontroverted facts.
Although courts may not simply grant motions for summary judgment as uncontested,14 under
Fed. R. Civ. P. 56(e), the Court has several options where “a party fails to properly support an
assertion of fact or fails to properly address another party’s assertion of fact as required by Rule
56(c).” The Court may deem a fact undisputed,15 and the Court may grant summary judgment
“if the motion and supporting materials—including the facts considered undisputed—show that
the movant is entitled to it.”16 Under Rule 56(e)(2), the Court will deem undisputed the facts
presented in Kasten’s summary judgment brief to the extent they are supported by the record and
were not properly addressed by Stewart. With this in mind, the Court finds that the following
facts are uncontroverted, stipulated to, or viewed in the light most favorable to Stewart as the
nonmoving party.
Kasten is a Kansas incorporated business that supplies its customers merchant services,
including providing merchants and customers with point of sale (“POS”) systems, mobile
payments, payment processing, counter terminals, billing and invoicing, payroll, and related
products and services which are collectively referred to as “merchant services.”17 Kasten earns
revenue when its merchant customers process credit card or other payment transactions using the
13 Ogden v. San Juan County, 32 F.3d 452, 455 (10th Cir. 1994).
14 Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002).
15 Fed. R. Civ. P. 56(e)(2).
16 Fed. R. Civ. P. 56(e)(3).
17 Doc. 96 at 2.
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payment processing terminals, software, and related services that are provided and installed by
Kasten. These payment processing transactions are colloquially known as “residuals;” the
residuals are a percentage of the payments that are processed by a given merchant customer.18
In May 2022, Kasten hired Stewart as a Sales Representative. Stewart’s primary job was
to sign up new customers to use Kasten’s products and services and to maintain those accounts.
In this position, Stewart managed 71 merchant customers. At the time of his hiring, Stewart and
Kasten executed and entered into an Employment Agreement (“Agreement”).19 Kasten
performed under the Agreement.
The Agreement prohibited Stewart from “divert[ing], or attempt[ing] to divert, directly or
indirectly, any of the customers of [Kasten] or any of the business or patronage of such
customers.”20 The Agreement also prohibited Stewart from soliciting or accepting “business
from or [catering] to any of the customers of Employer.”21 Further, the Agreement provided:
“that, for a period of two years following termination of
employment with Employer, for any reason, Employee will not, for
any other employer or on his/her own behalf, directly or indirectly
cause any Merchant or Vendor to terminate or reduce its business
relationship with Employer. For the purposes of this provision, a
“Merchant or Vendor” is any person or entity that Employer
18 Doc. 101-6 ¶ 18.
19 Doc. 96 at 2.
20 Doc. 101-1 ¶ 4(b).
21 Doc. 101-1 ¶ 4(b). Specifically, the non-solicitation clause of the Agreement enumerated the following
list of prohibited actions: “a. solicit, call upon, serve, accept business from or cater to any of the customers of
Employer; b. divert, or attempt to divert, directly or indirectly, any of the customers of Employer or any of the
business or patronage of such customers; c. call upon, influence or attempt to influence any of such customers to
transfer their business or patronage from Employer to himself/herself or to any other person, firm or company
engaged, in whole or in part, in a similar business; d. call upon, influence or attempt to influence any person, firm or
company, including but not limited to, insurance brokers, agents or companies, with whom Employee had contact
during employment with Employer and who has recommended to others the services of Employer during such
employment, for the purpose of causing such person, firm or company to recommend the services of any other
person, firm or company engaged in a business similar to Employer; e. receive compensation in any form as a result
of soliciting, servicing, serving, doing business with, or calling upon any customer of Employer, or assisting any
person, firm or company in such activities.” Doc. 101-1 at 3.
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transacts business with or transacted business with during the time
period of Employee’s employment.”22
Additionally, the Agreement provided in pertinent part that Kasten shall be entitled to an
award of its costs and reasonable attorney’s fees should Kasten prevail in this action or a portion
of this action. The contract also included a choice-of-law and forum-selection clause:
This Agreement shall be construed and performed according to the
laws of the State of Kansas and shall be binding upon the parties
hereto. The parties agree that any action to enforce this agreement
shall be brought in the District Court of Johnson County, Kansas,
or in the federal district court for the District of Kansas, Kansas
City Division.”23
In or around April 2024, Stewart accessed and downloaded Kasten’s confidential
information that was connected to the merchant customers that Stewart worked with, including
voided checks, credit card processing applications, and other confidential data. This confidential
data is needed in order to create new payment processing applications for these merchant
customers, which is a requisite step in moving those merchant customers’ payment processing
from Kasten to a competitor. On April 11, 2024, Kasten terminated Stewart’s employment.
Shortly after terminating Stewart’s employment, Kasten looked into why some of the
merchant customers managed by Stewart had ended their business relationship with Kasten.
Kasten’s investigation revealed that Stewart misrepresented to the merchant customers that he
was a broker of merchant services, and that Stewart diverted the merchant customers’ business
away from Kasten by installing new payment processing equipment of Kasten’s competitor,
PayCompass, LLC (“PayCompass”). Stewart began working as an independent contractor for
PayCompass following his termination from Kasten.
22 Doc. 101-1 ¶ 5.
23 Doc. 101-1 ¶ 12.
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Thirteen of Kasten’s former merchant customers that Stewart previously managed at
Kasten are now represented by Stewart through his employment relationship with PayCompass:
(1) Dirty Rancho Houston Moto; (2) Northwest Auto Center; (3) C.E. Automotive; (4) Advanced
Tech Automotive; (5) Precision Detail; (6) Honey B Ham; (7) Global Shading Texas; (8) Sixty
Collision; (9) Mitts Tire Service; (10) Innovative Collision; (11) Lauren Mackenzie; (12)
Concierge Auto; (13) Top Gun Auto. Stewart installed and activated PayCompass’s technology
on these merchant customer’s processing equipment, and Stewart earns revenue from
PayCompass based on the processing volume of these merchant customers.
On or around August 12, 2025, Kasten sold a portfolio of future residuals that included
accounts previously managed by Stewart that Kasten still serviced. Kasten priced the sale of the
portfolio based on the residuals of these merchants at a multiplier of 36 months of their average
monthly residual. Here, during their tenure with Kasten, the average monthly residuals of the
above thirteen former merchants who did leave Kasten totaled $5,067.50. Under Kasten’s policy,
a portion of the residuals are paid to Sales Executives who are in good standing. At the time of
his termination, Stewart was not in good standing and ineligible to receive a portion of the
residuals for the merchant customer accounts he had managed.
III. Discussion
Kasten moves for partial summary judgment against Stewart on three grounds: (1)
liability on Count I for breach of contract; (2) that it is entitled to damages arising from Stewart’s
breach in the amount of $253,453.94; and (3) costs and reasonable attorney’s fees associated
from Count I. As explained below, the Court grants partial summary judgment as to liability and
entitlement to attorney’s fees but otherwise denies summary judgment on the amount of damages
arising from Stewart’s breach.
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A. Liability on Count I
“[A] federal court sitting in diversity must apply the substantive law of the state in which
it sits, including the forum state’s choice-of-law rules.”24 Kansas applies the Restatement (First)
of Conflict of Laws in addressing choice of law issues.25 Kansas courts apply the rule of lex loci
contractus to breach of contract claims.26 Under this rule, the law of the state where the parties
made the contract controls.27 Further, in Kansas, a contracted choice of law provision controls
all questions of law flowing from the parties' contract and any breach thereof.28 Here, the
Agreement provides that Kansas law governs any dispute arising therefrom, and the parties agree
that this case is governed by Kansas law. Therefore, the Court applies Kansas substantive law
below.
Under Kansas law, a party establishes breach of contract by proving five elements: “(1)
the existence of a contract between the parties; (2) sufficient consideration to support the
contract; (3) the plaintiff’s performance or willingness to perform in compliance with the
contract; (4) the defendant’s breach of the contract; and (5) damages to the plaintiff caused by
the breach.”29 Here, the parties do not dispute the existence of a valid contract between them;
accordingly, the Court need only address elements 3, 4, and 5.30
24 Boyd Rosen & Assocs., Inc. v. Kan. Mun. Gas Agency, 123 F.3d 1351, 1352–53 (10th Cir. 1997).
25 See, e.g., In re K.M.H., 169 P.3d 1025, 1031–32 (Kan. 2007).
26 Mirville v. Allstate Indem. Co., 71 F. Supp. 2d 1103, 1107 (D. Kan. 1999).
27 Id.
28 Pepsi–Cola Bottling Co. of Pittsburg, Inc. v. PepsiCo, Inc., 431 F.3d 1241, 1255 (10th Cir. 2005)
(applying Kansas law).
29 Stechschulte v. Jennings, 298 P.3d 1083, 1098 (Kan. 2013) (citing Com. Credit Corp. v. Harris, 510 P.2d
1322, 1325 (Kan. 1973)).
30 Doc. 96 at 2.
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1. Performance
It is uncontroverted that Kasten performed its obligations under the Agreement.31 Kasten
and Stewart entered into an employment agreement on May 6, 2022. Kasten employed Stewart
from May 6, 2022, until his termination pursuant to the at-will provision of the Agreement on
April 11, 2024. However, the Court notes that Stewart, in his response to Kasten’s statement of
facts, asserts without citation to the record that:
“[Kasten] stopped paying me my contractual residual based on
their assumptions. The amount of the average monthly residual of
$5,067.50 was due to me monthly even after termination. It has
been 18 months since they stopped paying me based on their
assumption. This totals $91,215. This does not include the
bonuses that were owed to me.”32
Stewart’s assertion is not in response to Kasten’s statement of uncontroverted fact 12, which
specifically provides, with citation to an affidavit, that “Kasten Berry performed its obligations
under the Agreement.”33 Further, nowhere in the Agreement is there a provision that discusses
payment of residuals to Stewart, nor does Stewart point the Court towards a contractual
provision that encompasses his allegations. The Court is unable to find support in the record for
Stewart’s notion that failure to pay residuals would result in non-performance by Kasten.
Instead, the Agreement only requires Kasten to employ Stewart as an at-will employee, and the
uncontroverted facts demonstrate Kasten employed Stewart until his termination, in accordance
with the Agreement. Accordingly, the Court finds Kasten performed under the Agreement.
31 Doc. 101 at 5.
32 Doc. 105 at 2.
33 Doc. 101 at 5 (citing Doc. 101-6 ¶ 11).
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2. Breach
Kasten argues Stewart breached the Agreement through four actions: (1) Stewart
downloaded and retained Kasten’s property and confidential information; (2) Stewart diverted,
accepted business from, and serves Kasten’s customers during the restricted period and has
admitted he provides competitive payment processing services to the thirteen merchant
customers; (3) Stewart installed and activated payment processing equipment at Kasten’s
merchant customer locations; and (4) Stewart earns compensation paid to him by PayCompass
based on the services he provided to Kasten’s thirteen merchant customers.34 Stewart, through
his response to Kasten’s statement of facts, denies, without citation to the record, that he
breached the Agreement, stating that he “was 100% loyal to [Kasten.] The clients that followed
me contacted me directly and asked to work with me exclusively.”35
“‘In considering a contract which is unambiguous and whose language is not doubtful or
obscure, words used therein are to be given their plain, general and common meaning, and a
contract of this character is to be enforced according to its terms.’”36 The cardinal rule of
contract interpretation is that the court must ascertain the parties’ intention and give effect to that
intention when legal principles so allow.37 Where a contract is complete and unambiguous on its
face, the court must determine the intent of the parties from the four corners of the document,
34 Doc. 101 at 15–16.
35 Doc. 105 at 1.
36 Wagnon v. Slawson Expl. Co., 874 P.2d 659, 666 (Kan. 1994) (quoting Barnett v. Oliver, 672 P.2d 1228,
1238 (Kan. Ct. App. 1993)).
37 Kay-Cee Enter., Inc. v. Amoco Oil Co., 45 F. Supp. 2d 840, 843 (D. Kan. 1999) (citing Hollenbeck v.
Household Bank, 829 P.2d 903, 903–06 (Kan. 1992)).
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without regard to extrinsic or parol evidence.38 With these principles in mind, the Court
considers the grounds Kasten cites as proving Stewart’s breach of the agreement.
As an initial matter, it is undisputed that the non-solicitation clause of the Agreement
demands that an employee refrain from the following actions during employment and for a term
of two years following such period:
“a. solicit, call upon, serve, accept business from or cater to any of
the customers of Employer;
b. divert, or attempt to divert, directly or indirectly, any of the
customers of Employer or any of the business or patronage of such
customers;
c. call upon, influence or attempt to influence any of such
customers to transfer their business or patronage from Employer to
himself/herself or to any other person, firm or company engaged,
in whole or in part, in a similar business;
d. call upon, influence or attempt to influence any person, firm or
company, including but not limited to, insurance brokers, agents or
companies, with whom Employee had contact during employment
with Employer and who has recommended to others the services of
Employer during such employment, for the purpose of causing
such person, firm or company to recommend the services of any
other person, firm or company engaged in a business similar to
Employer;
e. receive compensation in any form as a result of soliciting,
servicing, serving, doing business with, or calling upon any
customer of Employer, or assisting any person, firm or company in
such activities.”39
Based on the undisputed facts, no reasonable jury could find other than for Kasten on breach.
While Stewart does deny that he breached the Agreement and was “100% loyal to [Kasten],” he
offers the Court nothing beyond this conclusory allegation that is devoid of citation to the record.
38 Id. (citing Simon v. Nat’l Farmers Org., Inc., 829 P.2d 884, 887–88 (Kan. 1992)).
39 Doc. 101-1 ¶ 4.
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This is not enough to create a genuine issue of material fact.40 A nonmovant “cannot create a
genuine issue of material fact with unsupported, conclusory allegations.”41 In responding to a
motion for summary judgment, a party cannot rest on “ignorance of the facts, on speculation, or
on suspicion” to escape summary judgment.42
The Court is cognizant of Stewart’s pro se status and construes his filings liberally.43
Nonetheless, Stewart may not rely on conclusory allegations to overcome his burden to establish
that a genuine issue of material fact exists as to whether he breached the Agreement.44 The
Court cannot assume the role of advocate,45 nor can the Court “supply additional factual
allegations to round out a plaintiff’s complaint or construct a legal theory on a plaintiff’s
behalf.”46 Here, the record supports the following facts that Stewart does not attempt to refute:
Stewart misrepresented to the merchant customers that he was a
broker of merchant services; Stewart diverted the merchant
customers’ business away from Kasten by installing new payment
processing equipment of Kasten’s competitor, PayCompass;
Stewart began working as an independent contractor for
PayCompass following his termination from Kasten; thirteen of
Kasten’s former merchant customers that Stewart previously
managed at Kasten are now represented by Stewart through his
employment relationship with PayCompass; Stewart installed and
activated PayCompass’s technology on these merchant customer’s
processing equipment; and, Stewart earns revenue from
PayCompass based on the processing volume of these merchant
customers.47
40 Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998).
41 Tapia v. City of Albuquerque, 170 F. App’x 529, 533 (10th Cir. 2006) (citing Annett v. Univ. of Kan., 371
F.3d 1233, 1237 (10th Cir. 2004)).
42 Genzer v. James River Ins., 934 F.3d 1156, 1160 (10th Cir. 2019) (quoting Conaway v. Smith, 853 F.2d
789, 794 (10th Cir. 1988)).
43 Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
44 Hastings v. Campbell, 47 F. App’x 559, 560 (10th Cir. 2002).
45 Hall, 935 F.2d at 1110.
46 Whitney v. New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997).
47 Doc. 101-6 ¶¶ 15, 16, 23; Doc. 101-7 ¶¶ 3, 7–11, 13, 14.
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These undisputed facts clearly establish Stewart’s breach of several provisions of the
Agreement’s non-solicitation clause.
Along with his opposition to Kasten’s motion for summary judgment, Stewart submitted
a statement of additional facts and an unsigned declaration. The Court notes that Stewart’s
additional facts and declaration (which are nearly identical) fail to cite support in the record.
And Kasten’s hearsay objections to these statements are sustained.48 And, importantly, even if
the Court admitted Stewart’s additional facts and declaration, his own statements further support
that he breached the Agreement. While ostensibly denying breach, Stewart instead explains why
he was justified in accepting, catering, diverting, and Kasten’s customers. For example, Stewart
recounts his history with C.E. Automotive: “[o]nce I was terminated, I reapproached them to
join my new company. This merchant left [Kasten] on its own.”49 Accordingly, the Court finds
that no reasonable jury could find other than for Kasten on breach.
3. Damages
Kasten seeks lost profits damages for Stewart’s breach. The Agreement provides in part,
“if Employer prevails against Employee, in whole or part, in any action to enforce this
Agreement then . . . Employer shall be entitled to its costs incurred in the successful pursuit of
such action or portion thereof, including a reasonable attorney’s fee.”50 Damages recoverable for
breach of contract are limited to those damages which may fairly be considered as arising, in the
usual course of things, from the breach itself, or as may reasonably be assumed to have been
within the contemplation of both parties as the probable result of the breach.51
48 Fed. R. Civ. P. 56(c)(1)(A); Fed. R. Civ. P. 56(c)(4); F.R.E. 801; F.R.E. 802.
49 Doc. 105 at 2 (emphasis added).
50 Doc. 101-1 ¶ 10.
51 Kan. State Bank v. Overseas Motosport, Inc., 563 P.2d 414, 415 (Kan. 1977).
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Kasten seeks $253,453.94 in lost profits arising from Stewart’s breach.52 The Court
agrees that Kasten’s lost profits due to Stewart’s breach are the proper measure of damages.53
However, the Court finds that genuine issues of material fact still exist as to the exact calculation
of lost profits. A party claiming that it has been injured as a result of another's wrongful acts
must show the extent of its injury—that is, the amount of damages it suffered—with reasonable
certainty.54
Kasten calculates total lost profit damages in two distinct buckets before combining them
to total $253,453.94. Both calculations utilize as a multiplier the same valuation for residuals.
Residual valuation in each bucket is calculated using the average monthly residual of the 13
merchant customers, which undisputedly totals $5,067.50.55 The first bucket calculates damages
based on Kasten’s inability to sell future residuals from the thirteen merchant customers Stewart
previously managed at Kasten and then subsequently represented as a PayCompass contractor.
The industry norm for calculating a portfolio value utilizes a multiplier of 30 to 40 months,
depending on the financial stability of the merchant customers involved in the sale of future
residuals and the overall attrition rate.56 Kasten provided the Court with a recent portfolio sale
that utilized a 36-month multiplier; accordingly, Kasten deems reasonable a 36-month multiplier
in the present calculation.57 Kasten argues the evidence of this recent sale supports their
assertion that it is reasonably certain it would have included the 13 merchant customers in this
52 Doc. 101 at 17–18.
53 The Agreement contemplated damages in the form of lost profits arising from breach, and Stewart’s
solicitation, catering, acceptance, and diversion of Kasten’s business are the proximate cause of the lost profits.
54 Wolfe Elec., Inc. v. Duckworth, 266 P.3d 516, 529 (Kan. 2011).
55 Doc. 101 at 10–12.
56 See Doc. 101-6 ¶ 27. Attrition rate can be understood as the number of merchant customers that stop
processing payments over a measured period. Id.
57 Doc. 101-6 ¶ 31.
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sale, or, alternatively, would have continued to receive residuals from these merchant customers
for at least 36 months. The uncontroverted record shows that a 36-month multiplier of the
average monthly residual of $5,067.50 totals $182,430 in damages from Kasten’s inability to
include these 13 merchant customers in the portfolio sale.
The second bucket is a more difficult calculation. Kasten calculates loss of past profits
based on the 15-month period (May 2024–August 2025) Stewart diverted and began providing
payment processing services to the thirteen merchant customers, minus any residuals Kasten
earned from these customers during the “the winddown of their business and payment processing
relationship with Kasten.”58 While Stewart does not rebut this calculation in his opposition,
Kasten cannot survive summary judgment simply due to Stewart’s failure to adhere to the
requirements of D. Kan. Rule 56.1(b)(1).
The undisputed facts do not support the 15-month multiplier Kasten provides, nor is
Kasten’s calculation reasonable.59 Kasten asserts the 15-month period encompasses the
timeframe since Stewart “began” diverting the thirteen merchant customers.60 However, Kasten
fails to cite to the record an itemization of the various times each merchant customer left Kasten.
This is important because logically the average monthly residual cannot hold at the first month’s
rate as individual merchant’s depart from Kasten’s services.
The Court understands Kasten as asserting that all thirteen merchant customers departed
Kasten by August 2025, but that each merchant left at an independent time between May 2024
58 Id. at ¶ 23. Fifteen months multiplied by the average monthly residual of $5,067.50, minus residuals-
received amounting to $4,988.56, totals $71,023.94.
59 Wolfe Elec., Inc, 266 P.3d at 529 (holding that a party claiming that it has been injured as a result of
another's wrongful acts must show the extent of its injury—that is, the amount of damages it suffered—
with reasonable certainty).
60 Doc. 101 at 17–18.
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and August 2025, following Stewart’s April 2024 termination. The temporal variation in
departures would necessarily affect the monthly lost profit. For example, the average monthly
residual of a merchant customer who only departed in July 2025 should not be included in the
lost profit calculation for lost profits in June 2024. Kasten’s calculation asks the Court to
compound its profits. The Court is unwilling and unable to do so. Accordingly, fact issues
persist as to the method of calculating Kasten’s lost profits, but the damages are recoverable due
to Stewart’s breach.
B. Costs and Attorney’s Fees
Finally, Kasten asks this Court for reasonable costs and attorney’s fees.61 In Kansas, a
prevailing party may recover attorney’s fees if specifically authorized by statute or contract.62
The Court finds that Kasten is entitled to an award of reasonable attorney fees under the
equitable remedies provision of the Agreement. However, the Court defers ruling on the amount
of attorney’s fees that are reasonable until after the remaining claims in the case are disposed.
Once the remaining claims in this case are disposed, Kasten may file an application for
reasonable attorney’s fees, along with supporting documentation.
In sum, Kasten has met its summary-judgment burden of showing that no reasonable trier
of fact could find other than in its favor on the contract claim, and that it is entitled to attorney’s
fees and costs under the contract. Kasten’s motion for summary judgment on this claim is
therefore granted. However, the Court finds questions of material fact persist as to the amount of
61 Fed. R. Civ. P. 54(d).
62 See Harris Mkt. Rsch. v. Marshall Mktg. & Commc’ns, Inc., 948 F.2d 1518, 1526 n.3 (10th Cir. 1991).
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damages.63 Accordingly, the Court deems the method in which Kasten calculates damages will
proceed to trial.
IT IS THEREFORE ORDERED BY THE COURT that Kasten’s Motion for Partial
Summary Judgment (Doc. 100) is granted in part and denied in part. Kasten’s motion for
partial summary judgment is granted as to liability on Count I and denied on the amount of
damages. Kasten’s motion for partial summary judgment as entitlement to reasonable costs and
attorney’s fees is granted, but Kasten may file an application for reasonable attorney fees after
the remaining claims in this matter are resolved.
IT IS SO ORDERED.
Dated: December 18, 2025
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
63 As a practical matter, the Court notes that Kasten acknowledges in the Pre-Trial Order (Doc. 96 at 8) that
its damages calculation for Count I is the same as Count III, which is not moved on in the present motion.
Case 2:24-cv-02270-JAR Document 108 Filed 12/18/25 Page 16 of 16