Summary 2014 WY 51

Chief Justice Kite delivered the opinion of the Court. Affirmed.

Case Name: KIMBERLY SHINDELL v. ROGER SHINDELL

Docket Number: S-13-0117

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Teton County, the Honorable Marvin L. Tyler, Judge

Representing Appellant: Robert E. Schroth, Sr., Jackson, Wyoming.

Representing Appellee: Roger Shindell, pro se.

Guardian ad Litem: Jean A. Day, Jackson, Wyoming. No appearance.

Date of Decision: April 22, 2014

Facts: Kimberly Shindell (Mother) appeals from the district court’s order finding her in civil contempt of court for refusing to comply with the district court’s orders regarding Roger Shindell’s (Father) rights to visitation and communication with their two daughters. She challenges the district court’s finding of contempt and the remedies it imposed.

Issues: Mother presents the following issues on appeal:

1. DID THE DISTRICT COURT ERR IN FINDING APPELLANT/MOTHER IN INDIRECT CIVIL CONTEMPT?

2. DID THE DISTRICT COURT ABUSE ITS DISCRETION, COMMIT PROCEDURAL ERROR, AND VIOLATE A PRINCIPLE OF LAW BY ORDERING APPELLANT/MOTHER TO PAY FOR ALL TRAVEL-RELATED COSTS FOR HER CHILDREN TO VISIT APPELLEE/FATHER?

3. DID THE DISTRICT COURT ABUSE ITS DISCRETION, COMMIT PROCEDURAL ERROR, AND VIOLATE A PRINCIPLE OF LAW BY ORDERING APPELLANT/MOTHER TO POST A $10,000.00 BOND IN THE EVENT SHE INTERFERES WITH HER CHILDREN VISITING APPELLEE/FATHER?

4. DID THE DISTRICT COURT ABUSE ITS DISCRETION, COMMIT PROCEDURAL ERROR, AND VIOLATE A PRINCIPLE OF LAW BY ORDERING APPELLANT/MOTHER TO PAY APPELLEE/FATHER’S ATTORNEY’S FEES AND COSTS?

Father, appearing pro se, claims the district court properly found Mother in contempt of court and its remedies were appropriate. He also asserts that certain aspects of the district court’s order were not appealable and he is entitled to sanctions against Mother and her appellate counsel.

Holdings/Conclusion: The district court did not abuse its discretion by finding Mother in indirect civil contempt of court. [T]he district court did not abuse its discretion by requiring Mother, as part of the sanctions for her contempt, to pay the girls’ travel expenses for winter break 2012-13 and spring break 2013. The district court did not abuse its discretion by requiring Mother to post a bond in an effort to hold her accountable to the court’s visitation order and provide immediate monetary security to Father in the event she refuses to comply. The district court stated in its findings of fact that it was ordering Mother to pay Father’s attorney fees because she had acted in defiance of the divorce decree and other court orders. Given the district court’s clear authority to award attorney fees and costs under these circumstances, the district court’s order was not erroneous. Affirmed.

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

[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. You will also note, when you look at the opinion, that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quotation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

Summary 2013 WY 60

Summary of Decision May 15, 2013

Chief Justice Kite delivered the opinion for the Court. Affirmed.

Case Name: IN THE MATTER OF THE GUARDIANSHIP OF ROBERT A. SANDS v. RICHARD BROWN, Guardian and Conservator.

Docket Number: S-12-0209

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Laramie County, the Honorable Michael K. Davis, Judge

Representing Appellant: Mitchell E. Osborn, Cheyenne, Wyoming.

Representing Appellee: No appearance.

Date of Decision: May 15, 2013

Facts: The district court entered orders appointing Richard Brown as guardian and conservator for Robert A. Sands. Mr. Sands sought to terminate the guardianship and the district court denied his petition. Six months later, however, the district court held a review hearing and terminated the guardianship. Mr. Brown filed a motion for attorney fees and costs and the district court reopened the guardianship for the purpose of deciding the motion. Before the motion was heard, Mr. Sands filed a complaint alleging that Mr. Brown had breached his duties. After a hearing, the district court entered an order ruling in favor of Mr. Brown on Mr. Sands’ complaint and awarding Mr. Brown and his attorney fees and costs. Mr. Sands appealed claiming the district court erred when it denied his petition to terminate the guardianship, reopened the guardianship for the purpose of awarding fees and costs and dismissed his complaint.

Issues: We rephrase the issues Mr. Sands presents as follows:

1. Whether the district court properly continued the guardianship and conservatorship of Mr. Sands over his objection and the objections of this family members.

2. Whether the evidence supports the district court’s holding that Mr. Brown substantially complied with the guardianship and conservatorship statutes and did not breach his fiduciary duties.

3. Whether the district court properly ruled on the matters asserted in Mr. Sands’ complaint at the final hearing on Mr. Brown’s petition for fees and costs.

Mr. Brown did not file a brief in this Court.

Holdings: At no time during the hearing did Mr. Sands’ counsel object to the proceedings. To the contrary, he voluntarily participated in the proceedings when, in response to the court’s statement that somebody had to address the misconduct issue and maybe it should be the party alleging it, counsel stated he “would be glad to go first” and proceeded to make an opening statement and call and examine witnesses to testify in an effort to prove Mr. Brown’s misconduct. Even when the district court stated that it intended to enter judgment and informed counsel that he had been “completely heard,” no objection was made. Likewise, when the district court made its ruling, counsel did not object. The Court held that any claim of error in the proceedings was waived by counsel’s unequivocal manifestation of intent to participate and failure to object. Affirmed.

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

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2013 WY 9

Summary of Decision January 25, 2013

Justice Golden delivered the opinion for the Court. Affirmed.

Case Name: IN THE MATTER OF ATTORNEY’S FEES AND COSTS IN THE TERMINATION OF PARENTAL RIGHTS TO: NRF and JWF, Minor Children, DONALD LEE TOLIN, Attorney for LMB, Natural Mother v. STATE OF WYOMING, DEPARTMENT OF FAMILY SERVICES.

Docket Number: S-12-0067

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Natrona County, Honorable Catherine E. Wilking, Judge.

Representing Appellant: Donald Lee Tolin, Law Offices of Donald Tolin, Casper, Wyoming.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Jill E. Kucera, Senior Assistant Attorney General; Susan K. Stipe, Senior Assistant Attorney General.

Date of Decision: January 25, 2013

Facts: Attorney Donald L. Tolin, who was court appointed to represent an indigent parent in a parental rights termination action filed by the State of Wyoming, Department of Family Services (DFS), which is a state agency legislatively obligated to pay for the costs of the action including the indigent parent’s attorney fee, Wyo. Stat. Ann. § 14-2-318(a) and (b) (LexisNexis 2011), appealed the district court’s fifty percent reduction of his requested amount of attorney fees for his representation in this action.

Issue: Mr. Tolin states the issue as:

Whether or not the [district court] abused its discretion in cutting attorney’s fees by 50% and whether or not its decision was unsupported by the evidence, arbitrary, and capricious.

Holdings: Having laboriously reviewed the record in light of the district court’s decision letter, Mr. Tolin’s contentions, and the considerations set forth in this opinion, the Court held that the district court did not abuse its discretion when it reduced Mr. Tolin’s fee application by fifty percent.

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

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 104

Summary of Decision July 31, 2012

Justice Burke delivered the opinion for the Court. Affirmed.

Case Name: JAMES HENRY and BARBARA HENRY, Husband and Wife, v. GEORGE BORUSHKO and LUCILLE BORUSHKO, Husband and Wife

Docket Number: S-12-0028

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Fremont County, Honorable Norman E. Young, Judge.

Representing Appellants: Pro Se

Representing Appellees: William L. Miller, Miller & Fasse, P.C., Riverton, Wyoming

Date of Decision: July 31, 2012

Facts: Appellants, James and Barbara Henry, and Appellees, George and Lucille Borushko, own adjoining properties in Fremont County, Wyoming. An irrigation canal separates the properties. In 2009, a dispute developed over the boundary between their properties. The Borushkos asserted that the boundary was the centerline of the irrigation canal. The Henrys claimed that it was at the fence along the north bank of the canal. Litigation ensued. The district court ruled in favor of the Borushkos. The Henrys appealed. Affirmed.

Issues: The issue is whether the deed to the Borushkos’ property should be interpreted to establish the property boundary at the centerline of the canal or along the fence on the north bank of the canal. A secondary issue, raised by the Borushkos, is whether there was reasonable cause for this appeal.

Holdings: The Court concluded that the Henrys’ conveyance of property bordering on the canal must be presumed to carry title to the center of the canal, and the specification of the acreage of the property was not sufficient evidence to defeat that presumption. The Court found no error in the district court’s decision. Having decided to affirm the district court’s ruling, The Court turned to the Borushkos’ contention that they should be awarded reasonable attorneys’ fees because there was no reasonable cause for this appeal. The Court has the authority to award such fees under W.R.A.P. 10.05, but did not do so in this case. The Henrys’ contention that the recitation of acreage in the deed was significant was not without merit. The Court considered carefully before determining that the recitation was insufficient to rebut the presumption that the reference to the canal meant the center of the canal. The Court could not say that the Henrys’ appeal was unreasonable, and declined to award attorneys’ fees. Affirmed.

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

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 98

Summary of Decision July 19, 2012

Justice Golden delivered the opinion for the Court. Affirmed.

Case Name: JOSHUA JORGEN HANSON v. MELANIE SMITH BELVEAL, f/n/a MELANIE ANN HANSON

Docket Number: S-11-0130, S-11-0131

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Sublette County, Honorable Marvin L. Tyler, Judge.

Representing Appellant: Elizabeth Greenwood and Inga L. Parsons, Attorneys at Law, Pinedale, Wyoming

Representing Appellee: Sky D. Phifer of Phifer Law Office, Lander, Wyoming

Date of Decision: July 19, 2012

Facts: These combined appeals arose out of post-divorce proceedings. In No. S-11-0130, Father appealed the district court’s order denying his petition to modify the parties’ divorce decree, which granted mother primary physical custody of their minor child, and to grant him primary physical custody of their child. In No. S-11-0131, Father appealed the district court’s order that he pay Mother $4,680 for attorney’s fees and costs that she incurred in defending Father’s petition to modify custody.

Issues: Father presented five issues for our review, which the Court has rephrased for the sake of simplicity as follows:

I. Whether the district court erred in finding unconstitutional a clause in the Stipulated Divorce Decree which provided that a move out of state by either party constituted a material change of circumstances sufficient to seek a modification of custody.

II. Whether the district court erred in finding there had not been a material change in circumstances to justify a change in custody

III. Whether the district court erred in finding that a modification of custody would not be in the best interests of the child.

IV. Whether the district court reversibly erred in admitting hearsay statements of the child’s treating physician and excluding certified copies of the criminal convictions of Mother’s brother and her current spouse.

V. Whether the district court erred in awarding Mother reasonable attorney fees.

Holdings: The clause in the parties’ divorce decree providing that either parties’ relocation outside Wyoming would constitute a material change of circumstances justifying consideration of custody modification was invalid as speculative, and the district court properly disregarded the provision. The Court further found Father was not prejudiced by the appealed evidentiary rulings, and found no clear error in the court’s determination that Father had not proven a material change of circumstances warranting a custody modification. Finally, the district court did not abuse its discretion in its award of attorney’s fees and cost. Affirmed.

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

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 96

Summary of Decision July 12, 2012

Chief Justice Kite delivered the opinion for the Court. The Court affirmed the district court’s order and judgment with the exception that the Court vacated the costs awarded for legal research.

Case Name: WILLIAM R. FIX v. SOUTH WILDERNESS RANCH HOMEOWNERS ASSOCIATION, a Wyoming unincorporated non-profit association and FRANK FORELLE.

Docket Number: S 11 0260
URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Teton County, Honorable James L. Radda, Judge.

Representing Appellant: William R. Fix, William R. Fix, P.C., Jackson, Wyoming.

Representing Appellee: South Wilderness Ranch Homeowners Association: Mathew E. Turner of Mullikin, Larson & Swift LLC, Jackson, Wyoming.

Representing Appellee: Frank Forelle: No appearance.
Date of Decision: July 12, 2012

Facts: The South Wilderness Ranch Homeowners Association (HOA) filed an action against William R. Fix to recover $2,500 in assessments he allegedly owed as a lot owner in the South Wilderness Ranches Subdivision. The HOA also sought interest and attorney fees. Mr. Fix denied that he owed the assessments and filed a counterclaim seeking a judicial determination that the covenants pursuant to which the assessments were to be paid were null and void. In the alternative, he sought damages for injuries he allegedly sustained when the HOA failed to enforce the covenants and allowed his neighbor to build a fence that violated the covenants.

After summary judgment proceedings, the district court entered an order granting judgment in favor of the HOA on its claim for the assessments, interest and attorney fees. Subsequently, the court severed Mr. Fix’s counterclaim from the rest of the case and entered judgment for the HOA on its complaint in the amount of the $2,500 assessments, plus pre-judgment interest, attorney fees and costs, for a total judgment of $22,077.38.

Mr. Fix appealed, claiming the district court erred in granting summary judgment against him on the HOA’s complaint and severing his counterclaim. He also claimed the attorney fees and costs awarded were excessive.

Issues: Mr. Fix, appearing pro se, presented the issues for the Court’s determination as follows:

I. The [district] court erred in granting summary judgment against the homeowner.

II. The [district] court awarded attorney fees that are excessive.

III. The severance ordered by the [district] court sua sponte constitutes error.

IV. The costs awarded by the [district] court are not permitted.

The HOA asserted the district court rulings were proper and sought leave to submit evidence of its fees, costs and expenses, including attorney fees, incurred in defending the appeal.
Holdings: The Court affirmed the district court’s order and judgment with the exception that the Court vacated the costs awarded for legal research.

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

[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. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2012 WY 8

Summary of Decision January 20, 2012

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it is issued.  You should use this citation whenever you cite the opinion, with a P.3d parallel citation.  You will also note when you look at the opinion that all of the paragraphs are numbered.  When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance] 

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

Case Name:  Thorkildsen v. Belden

Citation:  2012 WY 8

Docket Number: S-11-0146

URL:  http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=465034

Appeal from the District Court of Teton County, The Honorable Timothy C. Day, Judge

Representing Appellant (Defendant):  David G. Lewis, Attorney at Law, Jackson, Wyoming

Representing Appellee (Plaintiff): Richard J. Mulligan, Mulligan Law Office, Jackson, Wyoming; Heather Nobel, Jackson, Wyoming

Date of Decision: January 20, 2012

Facts:  In the fourth appeal of this matter, the Court took the unusual step of making a factual determination that the attorney fees Appellant requested were reasonable and directed the district court to enter an order awarding attorney fees in the amount of $77,475.00.  On remand, Appellant modified his attorney fee motion to also request a seven-percent prejudgment interest on the fee award.  The district court entered an order awarding the directed amount in attorney fees and denying the requested prejudgment interest. In this fifth appeal, Appellant challenged the district court’s entry of the order directed by this Court, claiming he is entitled to prejudgment interest on the fee award.  

Issues: Whether the District Court erroneously decided that the Appellant was not entitled to have prejudgment interest assessed on the attorney fees awarded him by the Wyoming Supreme Court in its decision Thorkildsen v. Belden, et al., 2011 WY 26, ¶ 27, 247 P.3d 60, 67 (Wyo. 2011); and 2) Whether the District Court correctly interpreted the decision in Thorkildsen v. Belden, et al., 2011 WY 26, ¶ 27, 247 P.3d 60, 67 (Wyo. 2011) to foreclose the defendant from seeking an award of prejudgment interest in any event.

Holdings:  The Court affirmed the district court’s Order Awarding Attorney’s Fees.

The court found the award of Appellant’s attorney fees was not a liquidated claim because this argument failed to consider the analysis and discretion a court brings to an award of attorney fees.  Appellant was therefore not entitled to prejudgment interest on the award.  The Court denied Appellee’s request for sanctions.

J. Golden delivered the opinion for the court.

Summary 2011 WY 162

Summary of Decision December 19, 2011

[SPECIAL NOTE:  This opinion uses the "Universal Citation."  It was given an "official" citation when it is issued.  You should use this citation whenever you cite the opinion, with a P.3d parallel citation.  You will also note when you look at the opinion that all of the paragraphs are numbered.  When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number.  The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name:  Rosendahl v. Rosendahl

Citation:  2011 WY 162

Docket Number: S-11-0046

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=464927

Appeal from the District Court of Lincoln County, The Honorable Dennis L. Sanderson, Judge

Representing Appellant (Defendant):  Michael Stulken, Green River, WY.

Representing Appellee (Plaintiff):  Eric F. Phillips, Rock Springs, WY.

Date of Decision:  December 19, 2011

Facts:  The parties married in 2002.  Wife (Appellee) brought children into the marriage from another relationship, and though the children lived with the parties during the marriage, Husband (Appellant) never adopted them.  The marriage did not produce any children.

Wife filed for divorce in 2009.  The court ordered Husband to reimburse Wife $45,000.00 for the mortgage debt, to be paid in monthly installments.  One-half of the orthodontia bill was to be paid by Husband, as were one-half of Wife’s attorney’s fees and costs.

Issues:  Husband raised five issues: 1) Whether the trial court abused its discretion in the distribution of the parties’ marital assets and the allocation of the parties’ marital debts; 2) Whether the trial court abused its discretion in the award of attorney fees to [Wife]; 3) Whether the trial court’s mandate that Husband is to pay for one-half of an orthodontia bill incurred for the benefit of the Wife’s children of a previous relationship is supported by the record; 4) Whether the trial court appropriately entered a final Judgment and Decree of Divorce; and 5) Whether the trial court erred by deciding [Husband’s] Motion to Amend Judgment and Decree of Divorce or, in the Alternative, Motion for New Trial on Limited Issues without a hearing.

Holdings:  The District Court was affirmed.  The district court did not abuse its discretion when it required Husband to pay $45,000.00 of the mortgage debt because the original refinance of the home was necessitated by Husband’s expenses, in part due to Husband being unemployed at the time of the refinance.  As to the home equity, it was within the district court’s discretion to award the entirety of the equity to Wife, as the home was her premarital asset.  Furthermore, the court’s mandate that Husband pay one-half of the orthodontia bill was entirely within the district court’s discretion.  Regarding attorney’s fees, the Court assumed the award was supported by the evidence.  The Court found that Husband’s W.R.C.P. 58 argument did not apply to the procedure employed by the district court in this instance, and finally, that no hearing was required on Husband’s post-judgment motion.  No sanctions apply.

J. Hill delivered the opinion for the court.

Summary 2011 WY 106

Summary of Decision July 8, 2011


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Elk Ridge Lodge, Inc. v. Sonnett

Citation: 2011 WY 106

Docket Number: S-10-0191, S-10-0192

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463902

Appeal from the District Court of Sublette County, Honorable Marvin L. Tyler, Judge

Representing Elk Ridge Lodge (Plaintiff/ Third-Party Defendant): Larry B. Jones and William L. Simpson, Burg, Simpson, Eldredge, Hersh & Jardine, Cody, Wyoming.

Representing The Sonnetts (Defendants/Third-Party Plaintiffs): Wendy Z. Burgers-Sonnett and George M. Sonnett, Jr., Washington, Virginia

Date of Decision: July 8, 2011

Facts: The Sonnetts purchased approximately twenty acres of land and improvements in Sublette County, Wyoming, from Elk Ridge Lodge, Inc. To finance part of the purchase price, the Sonnetts gave Elk Ridge a promissory note secured by a mortgage on the property. They later defaulted on the note, and Elk Ridge filed suit against the Sonnetts seeking judgment and foreclosure on the property. The Sonnetts responded with counterclaims against Elk Ridge claiming breach of the implied covenant against emcumbrances. Both parties filed competing motions for summary judgment. The district court granted summary judgment in favor of Elk Ridge on its foreclosure claim, and against the Sonnetts on their counterclaims. In Docket No. S-10-0192, the Sonnetts appeal that decision. The district court also denied Elk Ridge’s request for attorneys’ fees and costs pursuant to the terms of the promissory note and mortgage. In Docket No. S-10-0191, Elk Ridge appeals that decision.

Issues: Issues S-10-0192: Whether the district court erred in granting summary judgment to Elk Ridge, and in denying summary judgment to the Sonnetts, on the Sonnetts’ counterclaim of breach of warranty (breach of the implied covenant against encumbrances), ruling, as a matter of law, that language contained in the deed of conveyance excluded a recorded encumbrance from Elk Ridge’s warranty. Whether the district court erred in granting summary judgment on Elk Ridge’s claim for a money judgment and request for a decree of foreclosure where the Sonnetts’ counterclaim may diminish or defeat Elk Ridge’s claim. Whether the district court erred by granting summary judgment to Elk Ridge on its request for the equitable relief of foreclosure where the Sonnetts invoked equity in defense and where the court made no findings as to the equities.

Issue S-10-0191: Whether the decision of the trial court, in denying Elk Ridge Lodge, Inc.’s motion for attorneys’ fees and costs, was an abuse of discretion.

Holdings: The party moving for summary judgment bears the initial burden of establishing a prima facie case with admissible evidence. The necessary elements of a foreclosure claim are (a) the agreement; (b) a default; (c) a notice of default and declarations thereof; and, (d) the amount due. A review of the record confirms the district court’s ruling that Elk Ridge established its prima facie case for summary judgment on its foreclosure claim. The Sonnetts do not dispute these facts, and indeed, admitted nearly all of them in their answer to Elk Ridge’s foreclosure complaint. The Sonnetts assert, however, that summary judgment in favor of Elk Ridge was precluded by their counterclaim against Elk Ridge for breach of the covenants of the Warranty Deed conveying the property from Elk Ridge to the Sonnetts.

It is undisputed that Elk Ridge conveyed the property to the Sonnetts by Warranty Deed. A Warranty Deed includes the covenant that the property conveyed is free from all incumbrances. Consequently, any encumbrance on the seller’s title needs to be specifically listed and excluded from the warranty. Otherwise, the seller will be in breach of the warranty. Elk Ridge’s Warranty Deed did not specifically list and exclude the Master Plan. The Sonnetts contend that the Master Plan is an encumbrance, and therefore, that Elk Ridge breached its warranty. While Elk Ridge’s Warranty Deed does not specifically list and exclude the Master Plan, it more generally states that the deed is “SUBJECT TO reservations and restrictions contained in the United States patents or other matters of public record, to easements and rights-of-way of record or in use and to prior mineral reservations of record. It is undisputed that the Master Plan, having been recorded and indexed in the Sublette County property records, is “of public record.” Therefore, the district court’s conclusion that the Sonnetts’ breach of warranty claim is not viable, and that Elk Ridge was entitled to summary judgment on that claim is upheld. The district court did not err in granting summary judgment to Elk Ridge, and in denying summary judgment to the Sonnetts, on the Sonnetts’ counterclaim of breach of warranty.

As presented by the Sonnetts, their second issue arises only if we reverse the district court’s grant of summary judgment in favor of Elk Ridge. Because that decision has been upheld, there is no need reach the Sonnetts’ second issue.

In their third issue, the Sonnetts point out that foreclosure is equitable relief, and that they “invoked equity in defense” of Elk Ridge’s foreclosure claim. The Sonnetts contend that it was error for the district court to grant foreclosure to Elk Ridge without making specific findings as to the equities. The Sonnetts are correct that the district court did not make a separate ruling on their equitable defenses to foreclosure. However, it is apparent that the district court’s grant of summary judgment in favor of Elk Ridge implicitly ruled against the Sonnetts on these defenses. The Sonnetts’ equitable defenses were variations on their counterclaim that Elk Ridge wrongfully failed to disclose the existence of the Master Plan. As Elk Ridge’s nondisclosure did not violate the covenants of the Warranty Deed, the record does not support the applicability of the Sonnetts’ equitable defenses.

Segregation of fees between multiple clients and/or multiple claims is required when it is possible. Implicit in this directive is the requirement that a party must show segregation is impossible before he may recover for claims for which there is no authorization of fee shifting. Applying these legal concepts, the district court then made specific findings to support its decision. First, it found that Elk Ridge’s defense of the Sonnetts’ counterclaims were inextricably intertwined and impossible to segregate from Elk Ridge’s prosecution of the foreclosure action. In contrast, it found that the Sonnetts’ third party claims against the two shareholders of Elk Ridge were separable, and all fees and costs related to such must be segregated. It found that Elk Ridge had not adequately and appropriately segregated the hours worked, rate charged, and expenses incurred in defending issues against Elk Ridge and the individual Third-Party Defendants, Terry Reach and Daniel Fox, for piercing the corporate veil, intentional misrepresentation, fraud, and willful and wanton misconduct. The district court applied the rule that once a party is given an opportunity to present sufficient evidence of attorneys’ fees and fails to do so, the party will not be given another chance. While noting the “harsh result,” the district court denied Elk Ridge’s request for attorneys’ fees in its entirety. A careful review the district court’s ruling shows no error in its careful adherence to Wyoming precedent regarding the award of attorneys’ fees. Under the applicable standard of review, the ultimate question is whether the district court could reasonably conclude as it did. In this case, the district court presided over this litigation for nearly a year and a half before reaching its decision to deny Elk Ridge’s motion for attorneys’ fees. It had held numerous hearings and decided many different motions. Under the circumstances, the district court was in a better position than we are to decide whether the Sonnetts’ third party claims against Mr. Reach and Mr. Fox were inextricably intertwined with Elk Ridge’s foreclosure claim. The district court’s decision was not beyond the bounds of reason.

The district court’s decisions in both Docket No. S-10-0191 and Docket No. S-10-0192 are affirmed.





J. Burke delivered the opinion for the court.

Summary 2011 WY 102

Summary of Decision June 30, 2011


SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Magin v. Solitude Homeowner’s Inc.

Citation: 2011 WY 102

Docket Number: S-10-0166, S-10-0177

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463609

Appeal from the District Court of Teton County, Honorable Norman E. Young, Judge

Representing Appellant in case S-10-0166 (Defendant): Gerard R. Bosch and Mark J. Longfield of Law Offices of Jerry Bosch, Wilson, Wyoming.

Representing Appellee in case S-10-0166 (Plaintiff): Glenn M. Ford of Garland Ford & Potter, Jackson, Wyoming.

Date of Decision: June 30, 2011

Facts: The district court granted Appellee summary judgment on its claims that Appellant had violated the subdivision’s protective covenants by erecting screens, brush, log piles, and fencing. The district court also awarded Appellee attorney fees. On appeal, Appellant challenges the district court’s refusal to disqualify Appellee’s counsel for having a conflict of interest and its refusal to allow her additional time to respond to Appellee’s summary judgment motion. She also claims the district court erred by granting summary judgment to Appellee on the covenant violations and awarding Appellee attorney fees.

Issues: Whether the district court abused its discretion when it denied Appellant’s Motion to Disqualify Appellee’s attorney under Rule 1.9 of the Wyoming Rules of Professional Conduct for Attorneys at Law and for a hearing on the matter. Whether the district court abused its discretion by denying Appellant’s motion to continue the summary judgment hearing and/or motion for extension of time to respond to Appellee’s motion for summary judgment. Whether the district court erred by granting summary judgment in favor of Appellee on the basis that Appellant had violated the covenants. Whether the district court abused its discretion by awarding Appellee attorney fees

Holdings: Although the attorney representing Appellee did not formerly represent Appellant, another member of his firm did. Rule of Professional Conduct for Attorneys at Law 1.10(a) imputes a conflict of interest to all members of a law firm the representation of the client by the remaining lawyers in the firm. Four elements need to be proven to establish a Rule 1.9 violation: 1. there must have been a valid attorney-client relationship between the attorney and the former client; 2. the interests of the present and former clients must be materially adverse; 3. the former client must not have consented, in an informed manner, to the new representation; and 4. the current matter and the former matter must be the same or substantially related. Appellee concedes that all of the elements of the test are met in this case, with the exception of the last element.

Matters are “substantially related” for purposes of this Rule if they involve the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been obtained in the prior representation would materially advance the client’s position in the subsequent matter. A former client is not required to reveal the confidential information learned by the lawyer in order to establish a substantial risk that the lawyer has confidential information to use in the subsequent matter. A conclusion about the possession of such information may be based on the nature of the services the lawyer provided the former client and information that would in ordinary practice be learned by a lawyer providing such services.

In the present action, the materials submitted by Appellant establish that the genesis of the first dispute was a claim by Appellee and her neighbors that certain structures and fences constructed on her property by her predecessor violated the covenants. Appellant’s submissions showed that Appellee’s attorney advised her with regard to interpretation of some of the same covenants at issue here and negotiated with Appellee with regard to the covenant violations. However, Appellant surrendered her right to disqualify Appellee’s attorney because she did not file a motion to disqualify within a reasonable time after she discovered the conflict. Appellant did not file her motion for disqualification until over a year after representation began. During that time, the parties performed significant work on the case, including conducting discovery, locating expert witnesses and filing dispositive motions. An order by the district court requiring withdrawal at that late date would have wasted judicial resources and prejudiced Appellee by requiring it to find new counsel costing additional time and money and unnecessarily delaying resolution of the matter. Therefore, the district court did not abuse its discretion by denying the motion or refusing to reconsider its denial.

A district court has broad discretion to grant or deny a motion for continuance and absent a manifest abuse of discretion, its ruling will not be disturbed. In the present action, Appellee filed its motion for summary judgment in August 2009. Appellant filed motions for extension of time to respond to the summary judgment motion in August and September 2009, citing Appellee’s failure to comply with her discovery requests. At a hearing on September 29, 2009, the district court ordered Appellee to produce the documents requested by Appellant and make its board members and experts available for depositions. Appellee produced documents to Appellant in October 2009. The record contains no evidence that Appellant made any effort to depose the Appellee board members and experts following the district court’s ruling that she was entitled to do so. If she did and was refused by Appellee, Appellant filed no motion to compel. Additionally, after Appellee produced the documents in October 2009, the record contains no evidence that Appellant requested additional information or used the documents produced to prepare a response to Appellee’s motion for summary judgment.

On February 22, 2010, the district court sua sponte set a hearing on all pending motions for April 1, 2010. Appellant still took no action to prepare a response to the summary judgment motion and on March 26, 2010, filed a motion to continue the hearing on Appellee’s summary judgment motion. The district court denied the motion to continue on March 30, 2010. On the day of the hearing, Appellant filed a memorandum requesting additional time to respond to Appellee’s summary judgment motion under W.R.C.P. 56(f), citing among other reasons, the need to depose several witnesses. The district court denied the request and granted summary judgment on the merits in favor of Appellee.

The fact that a district court has not set deadlines for discovery or filing responses to dispositive motions does not mean the parties can allow a matter to languish. Wyoming Rule of Civil Procedure 6(b) and (c) set forth the time for responding to motions when the district court has not set other deadlines and a means for seeking an order from the district court establishing different deadlines. If Appellant wanted different deadlines set, she should have filed a motion asking for them. In addition, nearly six weeks passed between the February 22, 2010, order setting the summary judgment hearing and the actual hearing on April 1, 2010, during which Appellant could have prepared a response to Appellee’s summary judgment motion.

Appellant also claimed she was entitled to additional time to conduct discovery under W.R.C.P. 56(f). However, a litigant cannot use Rule 56(f) to excuse his failure to move forward with discovery, etc. and forestall summary judgment when he has had ample time to conduct discovery and respond to a summary judgment motion. Appellant did not establish that she had insufficient time to obtain the necessary discovery or that she had a valid reason for being unable to present facts essential to her position. She had over six months from the time the district court granted her discovery requests until the summary judgment hearing was held. Even after the denial of her motion for disqualification, she had four months to prepare. Appellant simply ignored her obligations to move forward with discovery and present a response to Appellee’s summary judgment motion. Thus, the district court acted well within its discretion and consistent with the letter and spirit of the rules and did not abuse its discretion by denying the motion for a continuance or refusing Appellant additional time to respond to the summary judgment motion under Rule 56(f).

The party requesting a summary judgment bears the initial burden of establishing a prima facie case for summary judgment. If he carries his burden, “the party who is opposing the motion for summary judgment must present specific facts to demonstrate that a genuine issue of material fact exists. In the present action. Appellee’s submissions established a prima facie case that the conditions on Appellant’s property violated the covenants. Appellant filed no substantive response to Appellee’s motion for summary judgment, and, thus, failed to raise any genuine issue of material fact regarding the violations of the covenants. The district court properly granted Appellee’s motion for summary judgment under Rule 56 and ruled that Appellant must bring her property into compliance with the covenants.

Wyoming follows the American rule regarding recovery of attorney fees, meaning that each party is generally responsible for its own attorney fees. Nevertheless, a prevailing party may be reimbursed for its attorney fees under a contractual or statutory provision which allows for fee shifting. The award in this case was based upon an amendment to the subdivision covenants which provides for payment of the Appellee’s attorney fees in actions it takes to enforce the covenants. The district court properly ruled as a matter of law that Appellee was entitled to recover its attorney fees for enforcing the covenants.

However, the attorney fees provision only allows Appellee to recover fees for enforcing the covenants. The attorney fees associated with clearing the conflict of interest were not “incurred in enforcing” the covenants. Segregation of fees allowed by the contract from those that are not is required, if possible. A party must show segregation is impossible before he may recover for claims for which there is no authorization for fee shifting. When segregation is possible but is not done, the entire fee award is subject to reversal. In the present circumstances, segregation was obviously possible and, yet, was not done.

There are also equitable reasons to deny Appellee’s request that Appellant reimburse it for Mr. Ford’s attorney fees. Wyo. Stat. 1-14-126(b) (2009) states that the court may award attorney fees “in its discretion.” Forfeiture of attorney fees is recognized as one of the remedies for violating Rule 1.9’s prohibition against conflicts of interest. It is hard to imagine a circumstance where this principle would apply with greater force than here. Appellee requested that Appellant pay the fees generated by an attorney who had an obvious conflict of interest. It would certainly be inequitable to require her to pay his fees under these circumstances.

The same rationale does not, however, apply to the award of fees for the work done by the first law firm that represented Appellee. The district court did not abuse its discretion by awarding Appellee fees for the first firm, and that portion of the award is affirmed. The remainder of the award is reversed.

Appellee’s counsel had a conflict of interest; however, the district court did not err by refusing to disqualify the firm because Appellant’s motion to disqualify was untimely. The district court also did not abuse its discretion by refusing to allow Appellant additional time to respond to Appellee’s summary judgment motion and properly granted summary judgment in favor of Appellee and ordered Appellant to bring her property into compliance with the covenants. However, the district court abused its discretion by ordering Appellant to pay the attorney fees generated by her former firm because it failed to segregate the non-recoverable fees associated with clearing the conflict.

Affirmed in part and reversed in part.


C.J. Kite delivered the opinion for the court.

Summary 2011 WY 74

Summary of Decision May 2, 2011


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Joe’s Concrete and Lumber, Inc. v. Concrete Works of Colorado, Inc.

Citation: 2011 WY 74

Docket Number: S-10-0036

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462090

Appeal from the District Court of Sublette County, Honorable Marvin L. Tyler, Judge

Representing Appellants (Plaintiffs): Andrea L. Richard of The Richard Law Firm, Jackson, Wyoming.

Representing Appellee (Defendants): William H. Twichell, Pinedale, Wyoming.

Date of Decision: May 2, 2011

Facts: After a jury found that Appellees breached its contract with them, Appellants presented evidence documenting its claim for attorney fees. The district court declined to consider the documentation on the ground that it was not presented at trial, concluded the evidence presented at trial did not support an attorney fees award and denied the attorney fees claim in its entirety. On appeal, Appellants contend the district court erred in failing to consider the evidence.

Issues: Whether the district court properly denied attorney fees.

Holdings: Generally, Wyoming subscribes to the American rule regarding recovery of attorney fees, making each party responsible for its own attorney fees unless an award of fees is permitted by contract or statute. In this case, the jury found the invoices Appellant presented to Appellee with each truckload of concrete constituted contracts and that Appellee breached the contracts when it failed to pay the invoice amounts in full. The contracts provided that in the event Appellant was forced to take action to collect on the accounts, Appellee would be charged for the costs and attorney fees incurred in the collection efforts. Appellant did, in fact, take action to collect on the accounts and a jury awarded it in damages. In accordance with the terms of the contracts, Appellee was obligated to pay costs and attorney fees.

The issue of attorney fees may be addressed as an element of damages, or it may be addressed through the filing of a post-judgment motion as described in W.R.C.P. Rule 54. Pursuant to the language in Rule 54(A), claims for attorney fees are to be made by motion unless the substantive law governing the action provides for their recovery as an element of damages to be proved at trial. Where the parties’ contract provides that legal costs were part of the damages available in the event of its breach, the attorney fees fall within the substantive claim exception to F.R.C.P. 54 and are to be proven at trial, not by post-trial motion. In contrast, where the contract provides for the recovery of fees by the prevailing party, such fees are not an element of damages to be proved at trial but are collateral to the merits of the case requiring a Rule 54(d)(2) motion.

The contracts at issue in the present case did not provide that attorney fees were an element of damages to be proved at trial nor did they expressly provide that the prevailing party was entitled to fees. The contracts provided only that in the event Appellant was forced to take action to collect on the accounts, Appellee would be charged for the attorney fees incurred in the collection efforts. However, it is logical to conclude the parties intended that Appellee, as the buyer, would only be obligated to pay attorney fees if Appellant successfully proved Appellee actually owed the amounts claimed to be due under the contracts. In essence, these contracts were prevailing party contracts. As contemplated by the contract language, Appellant was forced to take action to collect amounts due on the accounts. Appellant filed a breach of contract action in which it prevailed. It was, therefore, entitled to recover its fees. Under these circumstances, the attorney fees were not an element of damages to be proved at trial but were collateral to the merits of the case.

The case is reversed and remanded with instructions that Appellant is contractually entitled to attorney fees. The district court must consider all attorney fees evidence currently contained in the record and determine whether: 1) the fee charged represents the product of reasonable hours times a reasonable rate; and 2) other factors of discretionary application should be considered to adjust the fee either upward or downward.

C.J. Kite delivered the opinion for the court.

Summary 2011 WY 40

Summary of Decision March 8, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Pennant Service Company, Inc. v. True Oil Company, LLC

Citation: 2011 WY 40

Docket Number: S 09 0234, S 09 0235

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461800

Appeal from the District Court of Sweetwater County, Honorable Nena R. James, Judge

Representing Pennant Service Company, Inc.: Rex O. Arney and Orintha E. Karns of Brown, Drew & Massey, Sheridan, WY.

Representing True Oil Company, LLC: Scott P. Klosterman and Patrick J. Murphy of Williams, Porter, Day & Neville, Casper, WY.

Date of Decision: March 8, 2011

Facts: This is an appeal and a cross-appeal between True Oil Company, LLC, and Pennant Service Company, Inc., a Colorado corporation. Both companies were originally involved in a negligence action brought by Christopher Van Norman after he was injured in an oil well accident. True Oil settled out of court with Van Norman for $500,000.00. The original suit was resolved in 2005, leaving only a third-party suit that alleged breach of contract and indemnification between True Oil and Pennant. After a bench trial on those issues, the trial court found in favor of True Oil. Pennant was found to have breached the contract, and the court awarded True Oil $500,000.00 in damages.

Issues: Case 09-0234

Whether the indemnitee was entitled to damages after failing to prove its damages came as a result of the breach of contract. In the alternative, if the indemnitee is entitled to the award of damages from the indemnification clause, then: whether the trial court erred by ruling that an indemnitee’s burden of showing potential liability is met merely by the existence of the original plaintiff’s claim and whether the trial court erred by ruling that when only an indemnity issue is presented, there is no right to a jury trial.

Case 09-0235

Whether the district court abused its discretion when it failed to award attorney’s fees to True when an express contractual provision exists for such an award, and True proved its fees at trial without rebuttal from Pennant. Whether the district court abused its discretion when it failed to award prejudgment interest to True on the liquidated settlement sum of $500,000.00 and the attorney’s fees it incurred.


Holdings: Indemnity has its roots in equitable principles of restitution and unjust enrichment. A person who has been unjustly enriched at the expense of another is required to make restitution to the other. In general, the action for indemnity was premised on the desirable shifting of liability from a party who has paid damages but who should not have had to bear the entire burden alone.

Wyoming endorses the universal view that where an indemnitor declines to approve a proposed settlement or assume the burden of defense, then the indemnitee is only required to prove a potential liability to the original plaintiff in order to support a claim against the indemnitor. A showing of “potential liability” is required because the indemnitee must not be a mere volunteer who has settled the underlying claim when there was no exposure to legal liability that obligated him or her to do so. Only if the indemnitor is not given notice and an opportunity to assume responsibility for the claim must the settling indemnitee show that it was actually liable to the plaintiff. Where notice has been given to the indemnitor and the indemnitor has elected not to act to protect himself, he, in effect, consents to allow the indemnitee to act for him and will not be heard to complain about the outcome.

The indemnitee may settle for a reasonable amount and then recover that amount from the indemnitor by showing that it was not liable on any theory outside the indemnity agreement and was potentially liable on a theory covered by the agreement. If, before settlement is concluded, the indemnitor is offered a choice between approving the settlement or taking over the defense of the claim, and refuses to do either, the indemnitee can recover by showing potential liability to the original plaintiffs and need not prove actual liability.

In the present action, potential liability was established when the Van Norman complaint was amended to include a claim for vicarious liability. This conclusion was based upon much more than the mere allegation, but the showing by True Oil throughout the lawsuit that it was potentially liable. However, Pennant stipulated to the reasonableness of the settlement in this case and had to have considered the possibility of indemnification in accordance with the contract. Pennant was asked repeatedly to participate in the settlement negotiations with Van Norman, or to approve the settlement amount. Pennant did not object or respond in any manner until it stipulated to the reasonableness of the amount of the settlement. Pennant argues that “only those damages which are the natural and foreseeable result of a breach of contract are recoverable.” True Oil actually agrees with that statement, and contends that the $500,000.00 settlement payment was absolutely within the contemplation of the parties.

Pennant executed this contract which expressly states that Pennant must indemnify True Oil for settlements or judgments to Pennant’s employees arising out of Pennant’s acts or omissions. Pennant was well aware of True Oil’s vicarious liability risk, and Pennant agreed, through the contract, to indemnify True Oil for any damages resulting therefrom. Furthermore, by stipulating to the reasonableness of the $500,000.00 settlement paid by True Oil to Van Norman, Pennant supported True Oil’s “potential liability” for Pennant’s negligence.

The issue of reasonable apprehension of liability was clearly established in this instance, and that the damages in this case were proven to a reasonable degree of certainty. As evidenced by the contract, Pennant and True Oil each contemplated indemnification damages for bodily injuries when they signed. The district court’s award of $500,000.00 to True Oil is affirmed.

Although Wyoming generally subscribes to the American rule regarding the recovery of attorney’s fees, under which rule each party pays his or her own fees, a prevailing party may be reimbursed for attorney’s fees when provided for by contract or statute. However, a trial court in its discretion may properly disallow attorney’s fees altogether on the basis that such recovery would be inequitable.

An indemnity provision is interpreted in the same manner as any other contract, affording the language its plain meaning. However, Wyoming Wyo. Stat. 30-1-131 is an oil field specific anti-indemnity statute which invalidates indemnification clauses under certain circumstances. An agreement containing a provision violative of the anti-indemnity statute is not void and unenforceable in total, but only to the extent that it violates the statute. Further, indemnification is not prohibited except for the indemnitee’s own negligence. Although indemnification is not available for liability arising from negligence, reasonable attorney’s fees and costs expended in the defense of the underlying action are available to be recovered.

The district court determined the accident that injured Van Norman was caused 100% by Pennant. Thus, the indemnification provision was not a basis to be relied upon by the district court in denying True Oil’s request for attorney’s fees. It is a valid and enforceable part of the agreement. Relieving True Oil of any negligence, but then denying its attorney’s fees in defending itself against Pennant was an abuse of discretion by the district court. True Oil is thus entitled to its attorney’s fees incurred in defending the claims associated to this case. However, nothing in the clause suggests that it provides for the recovery of legal expenses incurred in establishing the right to indemnity. Accordingly, the trial court did not abuse its discretion when it determined that True Oil was not entitled to attorney’s fees incurred pursuing those claims.

Prejudgment interest is an accepted form of relief in Wyoming where the claim is “liquidated,” which is defined as one that is readily computable by basic mathematical calculation. The general principle is that he who retains money which he ought to pay to another should be charged interest upon it. The successful claimant is compensated for the lost “use value” of the money owed. That is, an award of prejudgment interest is in the nature of preventing the unjust enrichment of the defendant who has wrongfully delayed payment.

True Oil paid $500,000.00 to Christopher Van Norman to settle all claims asserted against it by him. The amount sought to be recovered was a sum certain of which Pennant had notice prior to the trial court’s decision. Both parties were well aware of the settlement amount between True Oil and Van Norman, as was the court. The $500,000.00 sum awarded by the court was a liquidated sum. Given the circumstances present in this case, the trial court’s ruling that this was not an appropriate case for prejudgment interest is reversed.

Pennant breached its contract with True Oil, and the court’s award of $500,000.00 to True Oil is affirmed. Regarding attorney’s fees, the trial court was half right in its decision. Reversing the trial court, True Oil is entitled to its attorney’s fees incurred in defending the negligence claims associated with case. However, the court’s ruling that True Oil is not entitled to attorney’s fees incurred asserting its indemnity claims is affirmed. Finally, the trial court’s ruling that this was not an appropriate case for prejudgment interest is reversed.

J. Hill delivered the opinion for the court.

J. Burke concurred in part and dissented in part. The district court’s denial of True’s claim for attorney fees incurred prior to the filing of the amended complaint should be affirmed. True was being sued solely for its own negligence. Any agreement to indemnify True for its own negligence was void pursuant to Wyo. Stat. 30-1-131(a)(iii) (2009). The “freedom to contract” is restricted by Wyo. Stat. 30-1-131, which specifically provides that agreements to indemnify an entity for its own negligence are against public policy and are void and unenforceable.

Summary 2011 WY 26

Summary of Decision February 17, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Thorkildsen v. Belden

Citation: 2011 WY 26

Docket Number: S-10-0154

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461765

Appeal from the District Court of Teton County, Honorable Nancy J. Guthrie, Judge

Representing Appellant (Defendant): David G. Lewis, Jackson, Wyoming.

Representing Appellee (Plaintiff): Richard J. Mulligan of Mulligan Law Office, Jackson, Wyoming; Heather Noble, Jackson, Wyoming.


Date of Decision: February 17, 2011

Facts: After the Supreme Court affirmed judgment in his favor in an action filed against him for payment on a loan, Appellant filed a motion for attorney fees. The district court ultimately denied the motion and Appellant appealed.

Issues: Whether the district court erred when it denied Appellant’s motion for attorney fees under the terms of an LLC operating agreement as the prevailing party in a legal action.

Holdings: Generally, Wyoming subscribes to the American rule regarding recovery of attorney fees, making each party responsible for its own attorney fees, unless an award of fees is permitted by contract or statute. In the present case, there is a contract permitting the award of attorney fees. Despite the clear language of the operating agreement authorizing reimbursement to the prevailing party in an action to enforce or prevent breach of the agreement, Appellees argued Appellant was not entitled to such reimbursement since many of the claims did not arise out of or involve the operating agreement but turned on side agreements or other legal theories independent of the operating agreement.

The rule in Wyoming is that segregation of fees between multiple clients and/or multiple claims is required when it is possible. To avoid application of this rule, the party seeking a fee award must clearly establish that the claims arose out of the same transaction or were so interrelated that segregation of the resulting attorney fees is not possible. In the present case, despite the last minute efforts by Appellees to broaden the scope of their claims in order to take them outside the parameters of the operating agreement, it is clear that the LLC operating agreement was the basis of the case from the beginning. Four of the five claims alleged in the complaint arose directly out of the LLC operating agreement. The only claim arguably not based upon the operating agreement was a claim for money owed to the Appellees on a note the LLC assumed at the time the company was formed. Once Appellant filed his answer, alleging that he had no personal liability for the debt, and his counterclaim, alleging the efforts to collect the debt from him breached the operating agreement, the claim for money owed became inextricably intertwined with the operating agreement. His liability for the debt could not be determined without reference to the operating agreement provisions precluding the imposition of personal liability on members or managers for LLC debts. Segregation of his counsel’s fees for time spent defending against the claims brought by Appellees was not required.

Appellant’s attorney fee request included the affidavit of counsel, which contained six pages itemizing the time he spent in representing his client between May of 2002, when the dispute arose, and June of 2008, when he appeared before the Supreme Court. It does not include the time spent preparing for and appearing at the two subsequent district court hearings, one in which the court awarded costs and no fees, and a second in which the district court denied the motion for fees. It also does not include the time counsel spent preparing and appearing for argument in the Supreme Court in two subsequent appeals. Although Appellees complain the fee is unreasonable because it includes travel time charged at counsel’s usual hourly rate for the first two appeals and more time for research and brief writing than their counsel spent on those activities, any excess is more than balanced out by the time spent on later proceedings that is not included in the billing statement. It should also be noted that Appellees supported their claim that the fees were unreasonable not with the affidavit of an uninvolved third party but only with their own attorney’s self-serving affidavit.

Litigation must come to an end. After four district court proceedings, the retirement of the district judge who presided over the proceedings and four appeals, it is time for this matter to come to an end. While it is true that when the Court reverses a ruling on an issue of law, it is typically remanded for a factual determination by the district court. W.R.Civ.P. 1 provides that the rules of civil procedure, which govern procedure in all courts of record in Wyoming, “shall be construed and administered to secure the just, speedy, and inexpensive determination of every action.” There may be no more important provision in the rules of procedure than the provision in Rule 1 for a just and speedy determination of every action. Contrary to the rule, this case has been unnecessarily protracted, causing Appellant’s counsel to expend numerous hours attempting to obtain for his client the fees to which he was entitled as the prevailing party. Under these particular circumstances, his request for attorney fees is fair and reasonable and another remand is unnecessary.

The matter is reversed and remanded to the district court for entry of an order awarding Appellant attorney fees in the amount of $77,475.00 as requested in his January 2009 motion.

C.J. Kite delivered the opinion for the court.

2011 WY 9

Summary of Decision January 21, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: American National Bank, Trustee of the Louise J. Sara Irrevocable Trust v. Sara

Citation: 2011 WY 9

Docket Number: S-10-0104

URL: http://tinyurl.com/4moelj8

Appeal from the District Court of Laramie County, Honorable T.C. Campbell, Judge

Representing Appellant (Petitioner): Harriet M. Hageman and Kara Brighton of Hageman & Brighton, P.C., Cheyenne, Wyoming. Argument by Ms. Hageman.

Representing Appellee (Respondent): Scott W. Meier and Lucas E. Buckley of Hathaway & Kunz, P.C., Cheyenne, Wyoming. Argument by Mr. Buckley.

Date of Decision: January 21, 2011

Facts: Appellant, acting as trustee of the irrevocable trust, appeals the district court’s denial of their motion to enforce a settlement agreement between family members. Appellant is also appealing the district court’s denial of attorneys’ fees and costs associated with filing the motion to enforce.

Issues: Whether the district court erred in finding that the current action was a quiet title action and therefore the district court did not retain jurisdiction to decide the matter. Whether the district court erred in finding that the Release, Waiver and Satisfaction of All Claims did not discharge the mortgage and note at issue in this case. Whether the district court abused its discretion by ordering the parties to pay their own attorneys’ fees and costs.

Holdings: The district court erred in holding that Appellant’s motion to enforce was a quiet title action and that the district court lacked jurisdiction to determine such an action. Appellant’s motion clearly sought to enforce the terms of the Release. Furthermore, the district court erred in determining that the note and mortgage at issue in this case were not discharged by the Release. The clear intent of the parties entering into the Release was to discharge and release any and all claims that the parties had against each other, either individually or in their capacity as personal representatives or trustees. The note and mortgage were claims held by Appellee prior to entering into the Release and were subsequently discharged upon signing the Release. Accordingly, the Court reversed that portion of the district court’s order and remanded the matter to the district court for entry of an order discharging the note and mortgage at issue. Finally, the district court did not abuse its discretion in applying the American rule and requiring the parties to pay their own attorneys’ fees and costs. Reversed and remanded.

Justice Voigt delivered the opinion for the court.

Summary 2010 WY 169

Summary of Decision December 21, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Zaloudek v. Zaloudek

Citation: 2010 WY 169

Docket Number: S-10-0068

URL: http://tinyurl.com/2f35huv

Appeal from the District Court of Uinta County, The Honorable Nancy J. Guthrie, Judge

Representing Appellant (Defendant): William L. Combs of Combs Law Office, L.L.C., Evanston, Wyoming

Representing Appellee (Plaintiff): Richard J. Mulligan of Mulligan Law Office; and Heather Noble, Jackson, Wyoming

Date of Decision: December 21, 2010

Facts: Appellant (Husband) and Appellee (Wife) divorced in 2008. As part of the divorce decree, Husband was ordered to pay a certain dollar sum to Wife to equalize assets. Husband did not make a material payment until more than a year after the divorce decree was entered. Husband herein appeals the district court’s order requiring him to pay interest on the amount he owed from the date of the rendition of the divorce decree.

Issues: Whether improper interest was added to awards to Appellee from Appellant’s IRA accounts that were not yet due during the period in which those accounts were frozen and in the control of the Court by Appellee’s Writ of Garnishment, and improperly require an immediate lump sum cash payment of the total amount? Whether the lower Court abused its discretion by improperly allowing attorney fees and costs to Appellee for claimed enforcement efforts that served to delay resolution of Decree compliance issues?

Holdings: The application of § 1-16-102 clearly requires payment from the date of rendition. A district court must expressly set a different date for payment of a judgment in order to override the application of the statute. Also, the garnishment of funds is not equivalent to a party depositing money with a court. The Court found that the district court did not abuse its discretion by ordering Husband to pay judgment interest from the date of rendition of the divorce decree. The Court further found the issue of attorney fees was still pending before the district court at the time of this appeal and was thus not appealable. Affirmed.

J. Golden delivered the opinion for the court.

Summary 2010 WY 163

Summary of Decision December 15, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: McMurry v. McMurry

Citation: 2010 WY 163

Docket Number: S-10-0039

URL: http://tinyurl.com/3amf7cm

Appeal from the District Court of Sublette County, The Honorable Marvin L. Tyler, Judge

Representing Appellant (Plaintiff): Weston W. Reeves and Anna Reeves Olson, Park Street Law Office, Casper, Wyoming. Argument by Mr. Reeves.

Representing Appellee (Defendant): Kim D. Cannon and Alison Ochs of Davis & Cannon, Sheridan, Wyoming. Argument by Mr. Cannon.

Date of Decision: December 15, 2010

Facts: Appellant (Husband) challenges the Decree of Divorce entered of record by the district court. There are very few facts in dispute. The principal source of controversy in this case arises because much of the marital estate was amassed through gifts from Husband’s father. The district court resolved the disputes over the division of the marital estate in an 18 page Decision Letter and a nine-page Decree of Divorce. The district court divided the marital estate into, more or less, two equal shares. In addition, the district court ordered that Husband pay to wife for her attorney’s fees and court costs.

Issues: Whether the district court’s conclusion that Husband intended to gift one-half of his overriding royalty interests to Wife is clearly erroneous. Whether the district court abused its discretion by allocating one-half of the parties’ combined estates to Wife. Whether the district court erred by awarding Wife attorney’s fees when she plainly did not need them to defend the action.

Holdings: The district court gave full recognition to the circumstance that Husband received gifts from his father. However, even if the property was Husband’s separate property, it was still within the jurisdiction of the district court to divide between husband and wife, incidental to dissolution of the marriage and the distribution of all marital assets. Although previous cases have never held that “equitable” means “equal,” likewise the Court have never held that “equal” shares are not “equitable.” Previous cases are very clear on the point contested by Husband, i.e., all property of the parties is subject to distribution. The Court held that the distribution of assets fashioned by the district court was not an abuse of discretion, and it did not shock the conscience of the Court.

The award of attorney’s fees in cases such as this is not designed to punish one party or the other, it is only designed to allow for the payment of such attorney’s fees, within the sound discretion of the district court, in those circumstances where the expenditures become “necessary” for a party because that party has no choice but to incur the expenses in defending against, or pursuing, a complaint for divorce. The district court did not abuse its discretion by ordering an award of attorney’s fees to Wife.

The Court affirmed the decree of divorce in all respects, as well as the award of attorney’s fees.

J. Hill delivered the opinion for the court.

Summary 2010 WY 138

Summary of Decision issued October 26, 2010

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Bellis v. Kersey

Citation: 2010 WY 138

Docket Number: S-10-0013

URL: http://tinyurl.com/2aooar4

Appeal from the District Court of Platte County, Honorable John C. Brooks, Judge

Representing Appellants (Defendants/Plaintiffs): Frank J. Jones of Wheatland, Wyoming.

Representing Appellees Ronny L. Kersey and Peggy J. Kersey (Plaintiffs): Gay Woodhouse of Woodhouse Roden, Cheyenne, Wyoming

Representing Appellees Benjamin H. Howard, Jr., Benjamin H. Howard, IV and Rocky Mountain Timberlands, Inc. (Defendants): William H. Vines of Wheatland, Wyoming.

Date of Decision: October 26, 2010

Facts: The Appellants were the plaintiffs in a quiet title and declaratory judgment action filed on April 4, 2006, against Torey S. Hanks and Julie B. Hanks [the Hanks subsequently sold their land to the General Education Foundation], Benjamin H. Howard, Jr. and Benjamin H. Howard IV, and Rocky Mountain Timberlands, Inc (RMT). The Hanks, Howards, and RMT filed an Answer denying the Appellant’s claims, but presented no counterclaims. Prior to the filing of that action, the Appellants were the defendants in an action filed by Appellees alleging trespass and seeking quiet title, injunctive relief, and ejectment. In their counterclaim against the Appellees, the Appellants asked that title be quieted in them. The district court consolidated the two cases because both disputes involved a contiguous area that had been under common ownership and the Appellant’s claim of ownership to the disputed area of each parcel was based on the same evidence in regard to adverse possession. After a bench trial, the district court concluded that the appellants had not proven ownership of the disputed land through adverse possession, ordered their ejectment from a portion thereof, to which portion title was also quieted in the record owners, and ordered the appellants to pay trespass damages and costs.

Issues: Whether the district court erred in ruling against the Appellants on their claim of adverse possession. Whether the district court erred in ordering the ejectment of the Appellants from the Appellees’ tract. Whether the district court erred in denying the Appellants’ quiet title claim, and in granting the Appellees’ quiet title claim. Whether the district court erred in granting trespass damages to the Appellees. Whether the district court erred in granting costs to the Appellees.

Holdings: The district court’s findings of fact are not clearly erroneous as they relate to the denial of the Appellants’ claim of adverse possession against the Appellees, as they relate to the grant of the Appellees’ claims of trespass and ejectment against the Appellants, or as they relate to the actual trespass damages awarded to the Appellees. Finding no error of law in any of those determinations, the district court is affirmed to that extent. The grant of the Appellees’ quiet title claim is reversed, however, because the Appellees did not prove that they were in possession of the disputed portion of their tract. In fact, they proved the opposite. The award to the Appellees of $1,500.00 as “nominal damages and to aid them in the cost of erecting a boundary fence” is reversed because there are no findings of fact in the record from which this Court can determine how much of the award is for nominal damages and how much is for fence construction, because the Appellees have not produced convincing precedent allowing the recovery of both actual and nominal damages, and because the Appellees did not plead the statutory cause of action for the sharing of the expense of construction of a partition fence. The award of costs to the Appellees is reversed because the certificate of costs was untimely.

Remanded to the district court for entry of an order consistent herewith.

J. Voigt delivered the opinion for the court.

Summary 2010 WY 110

Summary of Decision issued August 5, 2010

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

Case Name: Terris v. Kimmel

Citation: 2010 WY 110

Docket Number: S-10-0028

Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge.

Representing Terris: Katherine D. Peters and Thomas S. Peters of Peters Associates, LLC, Teton Village, Wyoming.

Representing Kimmel: Peter F. Moyer of Jackson, Wyoming.

Facts/Discussion: The Terrises appealed the district court’s Judgment, arising from a dispute relating to a lease agreement with Edwal Enterprises, Inc. and Edward Kimmel as principal (Kimmel.) The Terrises rented a storage unit from Kimmel in 1998 and continued doing so until the summer of 2006. The Terrises were over seven months behind in rental payments when Kimmel and his employees smelled gas fumes coming from the unit. They removed three propane tanks and two gas containers from the unit. Storage of flammable items was prohibited by the lease agreement.

Breach of lease agreement: The lease agreement provided for monthly payment of the rent. The manager of the storage facility was not authorized to amend the written lease agreement. Kimmel testified that he never authorized a modification of the contract and that he sent late payment notices three months prior to entering the storage unit. The Terrises prepared several lists of items they claimed were missing from the storage unit. However, they failed to persuade the district court that the items of personal property they listed as missing had existed or that Kimmel had disposed of them. The Court found nothing in the record to suggest otherwise.
Conversion: The Terrises argued that Kimmel violated the implied covenant of good faith and fair dealing and committed a conversion of their property when he failed to follow the lease agreement which required Kimmel to store or sell their property instead of disposing it at the dump. The claims rely on proof that Kimmel removed and disposed of the property which the Terrises failed to prove.
Attorney’s fees and costs: The Terrises argued that the district court erred by awarding attorney’s fees and costs to Kimmel because at the time of the breach, Kimmel had not yet incurred any fees or costs relating to the breach. The attorney’s fees provision of the lease agreement does not limit the availability of fees and costs only to those arising out of claims initiated by the landlord.

Conclusion: The Terrises failed to prove by clear and convincing evidence that the written lease agreement was modified. Consequently, the district court did not err in finding the Terrises in breach of the lease agreement for failure to make timely rental payments. The Terrises also failed to prove that Kimmel removed or disposed any of the Terrises’ personal property. As a result, the district court did not err in finding that Kimmel had not breached the lease agreement, committed a conversion, acted willfully in violation of the lease agreement, or violated the covenant of good faith and fair dealing. Nor did the district court abuse its discretion in awarding attorney’s fees and costs to Kimmel pursuant to the lease agreement, as those fees and costs were a direct result of the Terrises’ default under the lease agreement.

Affirmed.

J. Voigt delivered the decision.

Link: http://tinyurl.com/2cc2fn8 .

[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 using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2010 WY 91

Summary of Decision issued June 29, 2010

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

Case Name: Garwood v. Garwood

Citation: 2010 WY 91

Docket Number: S-09-0092

Appeal from the District Court of Platte County, the Honorable John C. Brooks, Judge.

Representing Orlan O. Garwood and Carol A. Jones as Trustees: Scott W. Meier and Lucas E. Buckley, Hathaway & Kunz, PC, Cheyenne, Wyoming.

Representing William J. Garwood: No appearance.

Facts/Discussion: William Garwood filed a lawsuit seeking an order directing the Trustees (Orlan O. Garwood and Carol A. Jones), who are two of Mr. Garwood’s children and two of the three designated Trustees of the W.J. Garwood and Mildred E. Garwood Trust (Family Trust) to pay him a sum of money from the Family Trust sufficient to provide for his support as provided by the terms of the trust. The district court issued an order allocating trust assets and directing payments to Mr. Garwood. The Trustees appealed. The Court affirmed. (No personal representative filed notice or filed a brief for Mr. Garwood who died in 2009.)

Jurisdiction: The Trustees argued that once they filed their notice of appeal in Garwood I, the district court was without jurisdiction to rule on Mr. Garwood’s motion for removal of Trustees and recovery of attorneys’ fees expenditures by the Trustees. The question of attorneys’ fees and costs in a given civil action is a common issue that a trial court may address and it does not require the filing of a separate action or a motion to amend a judgment. The issue was properly placed before the district court by Mr. Garwood’s timely filing of a post-judgment application for fees and costs. Consistent with Rule 6.01, the Court has held that during the pendency of an appeal, the district court has the right and power to enforce its decrees and orders and to protect the parties as to any rights they acquired in the district court proceedings. The district court acted prudently in delaying its consideration of the issue until the Court had ruled on the Garwood I appeal.
Abuse of discretion: The Trustees contended that even if the district court had jurisdiction to enter its order on the Trustees’ fees and costs, the court abused its discretion in allowing the Trustees only $10,000 in fees and costs. Generally, Wyoming subscribes to the American rule regarding recovery of attorneys’ fees, making each party responsible for its own attorneys’ fees unless an award of fees is permitted by contract or statute. Wyoming has adopted the Uniform Trust Code (UTC) which authorizes an award of fees and costs in judicial proceedings involving the administration of a trust. The Court may award costs and expenses including reasonable attorneys’ fees to any party to be paid by another party or from the trust that is the subject of the controversy. The Trustees contended that a trustee involved in a legal proceeding over a trust may simply pay the costs of litigation as an ordinary expense of administering the trust. Based upon the UTC, it is for the trial court to determine whether fees and costs were properly incurred in a trustee’s official capacity and if so, what constitutes a reasonable amount for those fees and costs. The litigation at issue was a judicial proceeding involving the administration of a trust and it was for the district court to determine the amount of fees and costs. The district court found and the Court affirmed that not only did the trust not benefit Mr. and Mrs. Garwood, the litigation made necessary by the Trustees’ refusal to sell the Wheatland property likewise did little to benefit the Family Trust. The Court could not find that the district court abused its discretion in limiting the amount of fees to the percentage it did. The Trustees contended the district court should have reviewed the billing statements of the Trustees’ attorneys to ascertain what fees benefited the Trust. The Trustees had opportunity to submit an application for an award of fees and costs supported by the billing statements and did not do so. Under the circumstances in the instant case, the Court would not remand to review the billing statements. The Trustees contended they were exposed to an award of damages in their personal capacities without notice and in violation of their due process rights. The order directing the Trustees to reimburse the Family Trust was not a damages award. Referring to the district court’s findings, the Trustees acted primarily in their personal interests in the litigation. The Trustees had ample notice and opportunity to defend their decision to unilaterally withdraw funds from the Family Trust for their litigation expenses.

Conclusion: The district court had jurisdiction to address issues relating to an award of attorneys’ fees and costs. The district court did so in a proper manner, and the Court found no abuse of discretion in the court’s decision.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/2u6449l .

[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 using the Universal Citation format, please contact the Wyoming State Law Library.]