Summary 2006 WY 140

Summary of Decision issued November 1, 2006

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Bixler v. Oro Management, LLC and Hyde, Erd and Pasma

Citation: 2006 WY 140

Docket Number: 05-272

Appeal from the District Court of Fremont County, the Honorable Nancy Guthrie, Judge

Representing Appellant: Kenneth S. Cohen of Cohen Law Office, PC, Jackson, Wyoming.

Representing Appellees: Richard Mathey of Green River, Wyoming.

Issues: Whether the district court erred in enforcing the partition of the Atlantic City property according to the parties’ previous agreement instead of requiring the property be partitioned according to the statutory procedure. Whether Oro’s motion for entry of an order of partition was “deemed denied” ninety days after it was filed.

Holding: Bixler and Oro owned 1700 acres of land near Atlantic City, Wyoming as tenants in common. After seeking a partition of the land and agreeing with Oro to a partition procedure that differed from the statutory procedure, Bixler failed to perform. The district court therefore, enforced the agreement and ordered the partition of the land. For a detailed background of the claim underlying this appeal, see Bixler v. Oro Mgmt., LLC.
In August 2004, a hearing was held on Bixler’s Motion for Partition. At the hearing the parties agreed that Bixler would divide the property into two parcels and that Oro would select one of the parcels, completing the partition. Bixler was ordered to prepare an order. Bixler did not prepare the order. On October 22, 2004, Oro filed a Rule 58 Notice along with an order on Bixler’s Motion For Partition. Bixler was provided with a copy of the order by mail and he filed no objection to it, so the Court entered the Order Regarding Bixler’s Motion for Partition on October 28, 2004. Bixler neither divided the property nor did he respond to Oro’s Motion for Relief Under Rule 70. The court entered its Order Granting Relief Under Rule 70 on February 2, 2005.
Standard of Review: The Court reviews the interpretation and construction of statutes de novo. The application of the rules of procedure including W.R.C.P. 6(c)(2) “deemed denied” rule, is also reviewed de novo.
Wyo. Stat. Ann. § 1-32-104 provides the process for partition in Wyoming. Bixler agreed to an alternative procedure and in his brief did not refute that such an alternate agreement was reached. He also failed to discuss the applicability of § 1-32-108. The Court therefore had no reason to disagree with Oro’s contention that § 1-32-108 should apply or that the district court was not bound to appoint commissioners under § 1-32-104. Further, because § 1-32-108 applied, the district court did not err in applying W.R.C.P. 70 and appointing Mr. Anderson to partition the property when Bixler neglected to do so.
Next Bixler argued that the district court was without authority to enter the Partition Order on September 30, 2005 based on Hodges v. Lewis & Lewis, Inc. The Court stated that Bixler ignored the actual discussion of the “deemed denied” rule in Hodges. He failed to prove the district court did not have the authority to grant Oro’s Motion for Entry of Order of Partition. Bixler bore the burden of showing that error occurred in the proceedings and he failed to provide the Court with any other analysis or citation to pertinent authority to support his “deemed denied” claim, so his argument failed.

Affirmed.

J. Voigt delivered the order for the court.

Link to the case: http://tinyurl.com/ymeh9h .