Summary 2010 WY 26

Summary of Decision issued March 8, 2010

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

Case Name: Braunstein v. Robinson Family Ltd. Partnership, LLP

Citation: 2010 WY 26

Docket Number: S-08-0115

Appeal from the District Court of Crook County, the Honorable John R. Perry, Judge.

Representing Appellant Braunstein: Paul J. Drew and Anita Ann Czapeczka of Drew Law Office, PC, Gillette, Wyoming.

Representing Appellee Robinson: Max Main of Bennett, Main & Gubbrud, PC, Belle Fourche, South Dakota.

Facts/Discussion: Braunstein appealed the district court’s order granting summary judgment to Robinson on its adverse possession complaint seeking title to Braunstein’s several parcels of land. The parties agree that Braunstein is the record owner of and has paid the property taxes assessed against the property and Robinson claims satisfaction of the several elements of adverse possession with respect to that property.

Affidavit of Alden C. Robinson: The paragraphs were only categorical assertions of ultimate facts without specific supporting facts. There were no specific facts informing the Court whether the fencing surrounded only the exterior of the Robinson family ranch lands within which is located the unfenced disputed property or whether Robinson separately enclosed the disputed property within a fence. There were also no specific facts about the acreage of the Robinson ranch lands, the ways in which the family members did not allow anyone else to use the disputed property, no specific facts concerning the type and number of livestock and where and how they were grazing on the disputed property. The Robinson’s claim to the property and their possession and use was subjective belief and opinion having no factual basis which is inadmissible. Statements about intent to include the disputed property in conveyances and about inadvertent omission of the property’s description were inadmissible self-serving subjective opinion. Failure to pay real estate taxes on the disputed property is a fact to be weighed along with the other circumstances in the case and intent is an inadmissible self-serving subjective opinion.
Affidavit of Justen T. Robinson: The affidavit was identical in most respects to the affidavit of Alden Robinson and was insufficient for the same reasons. Both failed to show an absence of genuine issues of material fact related to Robinson’s adverse possession claim.
Justen T. Robinson’s second affidavit: The affidavit did not contain enough factual content to have legal significance. It mentioned two appraisals but failed to note the name of the appraiser, there were no attached sworn or certified copes of the appraisals, and the affiant admitted that the disputed property was not included in the appraisals. This is another fact to be considered along with the failure to pay taxes or to include it in the title instruments to the family ranch lands which tends to weaken a claim of ownership by adverse possession.
Affidavit of Donald D. Zacher: The affidavit of the abstractor did not include the date on which he examined the title records. In addition, the documents attached were not sworn or certified copies as required by W.R.C.P. 56(e).
Quitclaim deed conveying the disputed property to Melvin and Elsie Braunstein: Robinson included the document in the summary judgment submissions but it was not a sworn or certified copy and no witness introduced it into the record.
Elsie Braunstein’s answers to plaintiff’s first interrogatories: The Court stated it found nothing in the answers that showed the absence of any genuine issue of material fact associated with the elements of Robinson’s adverse possession claim.
Robinson conveyances of the family ranch lands surrounding the property: The documents were not sworn or certified copies and no witness introduced them into the record.
Elsie Braunstein’s deposition: In Robinson’s memo in support of its summary judgment motion, there is only limited reference to Braunstein’s deposition. The Court reviewed the deposition testimony and found nothing that showed the absence of any genuine issue of material fact associated with the elements of Robinson’s adverse possession claim.

Conclusion: The Court found that most of the evidentiary materials submitted by Robinson in support of its summary judgment motion were legally insufficient under the requirements of W.R.C.P. 56 and summary judgment case law. It also failed to show the absence of genuine issues of material fact associated with the elements of the claim of adverse possession and because the issues raised important questions about the application of Wyoming’s “fence-out” doctrine in the context of an adverse possession claim, which questions require substantial factual development before they can be addressed, the Court reversed and remanded.

Reversed and remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/y8uv2rw .

[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.]