Tuesday, March 03, 2009

Summary 2009 WY 23

Summary of Decision issued February 23, 2009

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

Case Name: Schmidt v. Killmer

Citation: 2009 WY 23

Docket Number: 06-38

Appeal from the District Court of Campbell County, the Honorable Dan R. Price II, Judge.

Representing Appellants Schmidt and Melcher: Stuart S. healy of Healy Law Firm, Sheridan, Wyoming.

Representing Appellees Killmer; Macy & Assoc., LLC; Triple B Limited Partnership 1998B; Brammer Petroleum, Inc.’ Carpenter & Sons, Inc.; BTS LLC; Silver Petroleum Corp.; Sun Cementing of WY, Inc.; Wagner and Barth, Jr.: Stephenson D. Emery of Williams, Porter, Day & Neville, PC, Casper Wyoming; Morris R. Massey of Brown, Drew & Massey, LLP, Casper, Wyoming.

Facts/Discussion: Appellants Schmidt and Melcher were general partners in Triple B Limited Partnership 1998B (Triple B). The Triple B partners voted to dissolve and liquidate the partnership, and appointed Karl Killmer to act as liquidating trustee to wind up the partnership’s affairs. Following liquidation of the partnership and the distribution of its assets, appellants filed suit against Killmer, Macy & Associates, LLC (Killmer’s accounting firm), and the remaining Triple B Partners. The district court’s primary rationale for granting summary judgment in favor of the appellees was a finding that the appellants had expressly consented to the liquidation and distribution plan. Appellants contend on appeal that genuine issues of material fact exist as to whether they had sufficient knowledge of the differences between the Partnership Agreement and the settlement plan to consent to the latter.
The Court stated that the question of appellants’ consent was dispositive and began there. Consent by a trust beneficiary requires proof of express or implied consent to the trustee’s action and full knowledge of all the material particulars and circumstances. It was undisputed that Schmidt and Melcher both signed documents indicating consent to the distributions. Appellants’ argue they did not have full knowledge of the specifics of their consent, that the extent of their knowledge was a disputed question of fact. Killmer responded that appellants had full knowledge by virtue of the series of letters sent to them explaining his actions in detail at every step of the liquidation process. The court found Killmer’s position to be supported by the record. Because appellants signed documents accepting the distribution plan and were fully apprised of all the details, they cannot now challenge the distribution plan on the grounds that it differed from the Partnership Agreement.

Conclusion: The Court considered all the admissible evidence and argument submitted by the parties in the summary judgment proceedings, and found no disputed questions of material fact as to the appellants’ consent to Killmer’s actions and conclude that appellees were entitled to judgment.


C.J. Voigt delivered the decision.

Link: http://tinyurl.com/burfho .

[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.]

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