Summary 2010 WY 120

Summary of Decision issued August 24, 2010

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

Case Name: Dorr v. Smith, Keller & Assoc.

Citation: 2010 WY 120

Docket Number: S-09-0249

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

Representing Dorr: Greg L. Goddard of Goddard, Wages & Vogel, Buffalo, Wyoming.

Representing Smith, Keller & Assoc.: W. Perry Dray and Timothy L. Woznick of Dray, Thomson & Dyekman, PC, Cheyenne, Wyoming.

Facts/Discussion: Dorr appealed from the district court’s denial of his motion to declare Smith, Keller & Associates’ (SKA) judgment against him satisfied. He challenged the district court’s rulings that posting a supersedeas bond did not stop interest from accruing on the judgment and he was not entitled to credit against the judgment for settlements made by third parties in related actions.

Accrual of interest on judgment after posting supersedeas bond: Dorr posted a supersedeas bond to prevent SKA from executing on the judgment while the case was on appeal. He claimed that when he posted the bond, interest stopped accruing on the judgment and release of the bond to SKA satisfied the judgment. In V-1 Oil Co. v. People, the Court confirmed that posting a supersedeas bond does not constitute accomplished payment until an unqualified right to the proceeds accrues after the judgment is affirmed on appeal. If the legislature intended for the filing of a supersedeas bond to stop interest from accruing on the judgment, it would have specified that and not simply stated that interest accrues until the judgment is “paid.” If interest did not continue to accrue after a supersedeas bond was posted, the judgment creditor would not be fully compensated and the purpose of the statutory interest requirement would not be served. In Parker v. Artery, the Court ruled that payment of the entire judgment into the court absolved the defendant from further accrual of interest.
The fact that the bond should be set in an amount sufficient to cover all aspects of the judgment creditor’s damages does not mean that the judgment creditor will be limited to recovery of the amount of the bond. The purpose of a supersedeas bond is to protect nonappealing parties by maintaining the status quo during the appeal and insuring that those who have obtained the judgment under review will not be prejudiced by a stay of the judgment pending the final determination of the appeal. To hold that the release of the bond to SKA satisfied judgment would undermine the purpose of post-judgment interest and would deprive the judgment creditor of the value of the money he is owed.
Credit for third party settlements: In a separate action, SKA alleged that Dorr and his associates fraudulently conveyed property in which it had an interest to Dorr’s father and First Interstate Bank, among others. Dorr argued that the district court erred by refusing to credit the settlement amounts against SKA’s monetary judgment. A judgment debtor is entitled to credit against a judgment for a settlement that pertains to claims included in the judgment. The district court has discretion in determining whether to allow a set off. An evidentiary hearing was held on the set off matter. The district court’s decision letter noted that the arbitration award rendered against Dorr & Assoc. contained two components: $105,163.78 for unpaid compensation for 1988 and the portion of 1989 before dissolution and for violation of the dissolution provisions of the partnership agreement; and it directed Dorr & Assoc. to return the proceeds of a particular bank account, all accounts receivable existing as well as sums paid on those accounts and all computer software. Dorr asserted that SKA’s fraudulent conveyance complaints and subsequent amendments showed that it believed that its fraudulent conveyance claims were inseparable from the claims which led to the monetary award. The Court noted the documents seemed to include broad, general allegations about the arbitration award. The judgment at issue covered the monetary portion of the arbitration order awarding damages to SKA for unpaid compensation and violation of the dissolution provisions of the partnership agreement. Dorr did not direct the Court to evidence showing the fraudulent conveyance action was specifically directed at recovering for the claims covered by the monetary judgment.

Conclusion: The district court properly concluded that filing a supersedeas bond did not toll the accrual of interest on a judgment and the judgment creditor’s recovery is not limited to the bond amount. Dorr did not provide a transcript of the evidentiary hearing. Taking the district court’s factual findings as true, the Court agreed that Dorr did not satisfy his burden of proving that the settlements were related to the monetary judgment. The district court did not abuse its discretion by refusing to credit the Bill Dorr and First Interstate Bank settlements against SKA’s judgment.

Affirmed.

C.J. Kite delivered the decision.

Link: http://tinyurl.com/2bxxxl4 .

[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 37

Summary of Decision issued March 25, 2010

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

Case Name: Morris v. CMS Oil & Gas Co.

Citation: 2010 WY 37

Docket Number: S-09-0103; S-08-0104

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

Representing Appellant Morris (Plaintiff): Patrick G. Davidson and Rebecca L. Winkler of Daly Law Associates, LLC, Gillette, Wyoming.

Representing Appellee CMS Oil & Gas Co. (Defendant): Thomas F. Reese, Drake D. Hill and Orintha E. Karns of Brown, Drew & Massey, LLP, Casper, Wyoming.

Facts/Discussion: Morris owns an overriding royalty interest in gas wells operated by CMS. Morris brought suit under the WRPA because she believed that CMS was not reporting production or paying her royalties properly.

Royalty payments: Morris failed to prove she was owed royalties or interest beyond what CMS had paid as of November 2002. She expressly testified she was unsure of the amount owed but that her expert would know. The expert testified that while there were some irregularities in the reports, they ultimately were resolved. Morris claimed she was unable to prove her damages because CMS refused to produce the necessary documentation during discovery. CMS’s expert testified he provided Morris’ expert with all the pertinent material he had in his possession and Morris’ expert acknowledged the same. Relying on an internal CMS memo, Morris asserted that the documentation provided was unreliable. The Court stated that while the memo disclosed that CMS had some initial problems with its reporting on some wells, it does not prove that the information ultimately provided was unreliable. Morris argued that CMS’s reported production numbers differed from those reported to the WOGCC as reflected on the website. The evidence suggested that the WOGCC numbers that Morris relied upon were not reliable. Morris’s expert testified he found thirty-three wells for which she had never received payment but he was never asked to calculate the royalty amount due on those wells. CMS’s expert testified only three such wells existed and testified the production numbers and volumes calculated by Morris’ expert were correct. No competent evidence on the sales price was presented. The Court upheld the district court’s conclusion that CMS ultimately paid Morris more than she was due.
Lack of reporting: The district court concluded that CMS failed to properly report for twenty-nine months. Neither party challenged the district court’s finding that CMS failed to report during the specified time period or argued that the finding was not supported by the record. The district court concluded that a producer who fails to submit a complete monthly report is liable to the interest owner in the amount of $100 per month. The clear intent of § 30-5-305(b) was that interest owners would receive all of the information identified in subparagraphs (i) through (xi) on a regular monthly basis. It authorizes the information to be provided by lease, property or well. Anyone who failed to do so would be liable to the interest owner for $100 for each month that a complete report was not provided. The district court correctly determined that CMS was liable to Morris in the amount of $100 for each month complete reporting did not occur. The evidence supported the district court’s determination that CMS failed to submit complete monthly reports from July 2000 through March 2002. The district court found CMS was required to report beginning December 1999. The Court noted the first sale was in December 1999 making the first payment and report due July 2000. On remand, the district court should consider the issue and determine the proper penalty.
Attorney’s fees and costs: The Court has defined whether a party is a prevailing party (for purposes of awarding costs of litigation) as one who improves his or her position by the litigation. Morris obtained payments she otherwise would not have, proved that CMS violated the WRPA and obtained a judgment requiring CMS to pay reporting penalties thereby improving her position. The Court upheld the district court’s determination that Morris was the prevailing party for the purposes of attorney’s fees. Morris claimed the district court erred in awarding fees to CMS. The district court’s award of attorney fees to CMS when Morris was the prevailing party cannot stand. The practical effect of the district court’s award of attorney’s fees to CMS was to punish Morris for not voluntarily dismissing her claim once CMS made some payment. This runs counter to the entire purpose of the WRPA as well as the express language of § 30-5-303(b) authorizing an attorney’s fee award to the prevailing party.
Application of the escrow provision: Morris asserted the district court erred when it held CMS was not in violation of the WRPA once it escrowed the funds in April 2002. She claimed the ruling failed to take into account that there were some wells for which she never received payment or reports so that CMS was continuing to violate the WRPA after it escrowed the funds. Therefore the calculation of the reporting penalty was incorrect. The testimony and evidence tended to show that upon paying Morris $38,657.41 as of November 2002, CMS had paid approximately $3,000 more than it owed. The ruling was supported by the evidence.

Conclusion: The district court’s conclusion that Morris received all the royalty payments she was due was supported by the evidence. The district court correctly concluded CMS failed to submit reports as required by WRPA. The district court’s conclusion that CMS violated the WRPA by failing to either pay Morris the royalties due or place them in escrow was supported by the evidence. Morris was the prevailing party and was properly awarded her attorney’s fees. The district court erred in awarding CMS attorney’s fees.

Affirmed in part, reversed and remanded in part.

J. Kite delivered the decision.

J. Golden, dissented: The Justice’s review of the record noted that attached to every payment made was a check detail containing the requisite statutory information. He would have reversed the district court’s ruling on reporting penalties. The Justice discussed the “catalyst theory” which the Court has never expressly commented upon. The theory runs directly contrary to the language and intent of § 30-5-303(b). The United States Supreme Court discussed the definition of “prevailing party” at length in Buckhannon. In order to be deemed a prevailing party, there must be a material modification in the legal relationship of the parties. The Justice would hold that a party can only be considered a “prevailing party” in a juridical action if the party receives some form of juridical relief such as judgment on the merits or a court ordered consent decree or court-approved settlement agreement. The Justice would follow the lead of the United State Supreme Court and adopt a bright-line rule defining a person who improves her position through litigation as a person who receives relief sought by means of some form of juridical action. Only juridical action can change the legal relationship between parties, the proper function of any legal action.

Link: http://tinyurl.com/yefmdqw .

[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 36

Summary of Decision issued March 23, 2010

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

Case Name: Ultra Resources, Inc. v. Hartman

Citation: 2010 WY 36

Docket Numbers: S-08-0258, S-08-0259, S-08-0260, S-08-0261, S-08-0262, S-08-0263, & S-08-0264

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

Representing Appellant Ultra Resources, Inc. and Williams Production Rocky Mountain Co. (Defendant): Douglas J. Mason of Mason & Mason, Pinedale, Wyoming; George W. Mueller of Burns, Wall, Smith and Mueller, P.C., Denver, Colorado.

Representing Appellant Arrowhead Resources (U.S.A.) LTD (Defendant): Nancy D. Freudenthal of Davis & Cannon, Cheyenne, Wyoming; Rebecca Hitchcock Noecker of Beatty & Wozniak, Denver, Colorado.

Representing Appellant Lance Oil & Gas Company, Inc. (Defendant): Paul J. Hickey of Hickey & Evans, Cheyenne, Wyoming; David W. Stark and Ezekiel J. Williams of Faegre & Benson, Denver, Colorado.

Representing Appellants Shell Rocky Mountain Production, LLC and SWEPI, LP (Defendants): David B. Hooper of Hooper Law Offices, Riverton, Wyoming; Phillip D. Barber of Phillip D. Barber, P.C., Denver, Colorado.

Representing Appellees Doyle and Margaret M. Hartman, John H. Hendrix Corporation, Michael L. Klein and Jeanne Klein, Ronnie H. Westbrook and Karen Westbrook (Plaintiffs): Michael J. Sullivan and John A. Masterson of Rothgerber, Johnson & Lyons, Casper, Wyoming; James M. Lyons and D. Elizabeth Wills of Rothgerber, Johnson & Lyons, Denver, Colorado; J.E. Gallegos and Michael J. Condon of Gallegos Law Firm, Santa Fe, New Mexico.

Facts: This case encompasses seven appeals and cross-appeals and involves seven plaintiffs and six defendants. The contest is over a net profits interest (NPI) granted by Malco Refineries, Inc., El Paso Natural Gas Company, and Continental Oil Company (referred to in the documents as “First Parties”) to Novi Oil Company (Novi) in the 1950s. The NPI was consideration for Novi’s assignment of certain oil and gas leases to First Parties. Generally, the district court concluded that the NPI continues to exist and is owned by the plaintiffs, who are successors to Novi, and the defendants, as successors to First Parties, are obligated to pay net profits to them. The district court also awarded statutory penalties, interest and attorney fees to the plaintiffs.

Issues: Whether the plaintiffs were entitled to summary judgment on the question of whether the NPI survived termination of the Pinedale Unit. Whether the plaintiffs were entitled to summary judgment on the question of whether they own the NPI and whether the defendants have standing to contest plaintiffs’ claim of ownership. Whether the district court erred by granting the defendants’ Rule 52(c) motion regarding the plaintiffs’ duty to provide proof of their ownership of the NPI under Section 5 of the Pinedale Unit Area Net Profits Contract (Unit NPI Contract) or by determining that the plaintiffs gave sufficient notice of their ownership. Whether the district court erred in granting the defendants’ Rule 52(c) motion on the plaintiffs’ claim for breach of the implied covenant of good faith and fair dealing. Whether the district court erred in granting the non-operator defendants’ Rule 52(c) motion on the plaintiffs’ Wyoming Royalty Payment Act, Wyo. Stat. §§ 30-5-301 through 305 (2009) (WRPA) claims. Whether the district court correctly determined that the non-operating defendants breached the Unit NPI Contract by failing to pay the NPI. Whether the district court erred by ruling that plaintiffs were entitled to be awarded WRPA interest and penalties against the operating defendants Shell and Ultra when the Unit NPI Contract provided that they could withhold payment of net profits, without interest, during the pendency of any dispute regarding ownership of the NPI. Whether the district court properly determined that State Lease 79-0645 was a “replacement lease” under the Unit NPI Contract. Whether the district court erred by ruling that plaintiffs’ claims were not time barred under either the statute of limitations or the equitable doctrine of laches. Whether the district court erred by refusing to exclude certain expenses from the net profits calculation. Whether the district court erred by holding all defendants jointly and severally liable for the entire judgment. Whether the district court properly granted credit to the defendants for plaintiffs’ settlement with Questar/Wexpro. Whether the non-operators were the prevailing parties and, therefore, entitled to an award of attorney fees under the WRPA. Whether the district court abused its discretion by awarding plaintiffs over $3.9 million in attorney fees.


Holdings: The district court properly granted summary judgment on the plaintiffs’ claim that the NPI continued to encumber the relevant leases after termination of the Pinedale Unit. To the extent that the district court’s second summary judgment order stated that the plaintiffs had provided a sufficient showing of their ownership of the NPI to entitle them to payment from the defendants, the decision is affirmed. However, to the extent that it was intended to quiet title in the plaintiffs against any claims by others who are not parties to this action, there was no justiciable controversy and the decision is reversed.

The district court properly granted the defendants’ Rule 52(c) motion regarding the plaintiffs’ obligation to give notice under Section 5 of the Unit Net Profits Contract and correctly ruled that plaintiffs’ letter was sufficient notice under the contract to obligate the defendants to start paying the NPI in March 2006. The district court also properly granted the defendants’ Rule 52(c) motion on the plaintiffs’ claim for breach of the implied covenant of good faith and fair dealing and the non-operator defendants’ Rule 52(c) motion on the plaintiffs’ WRPA claims.

After the bench trial, the district court correctly concluded that the non-operating defendants breached the Unit NPI Contract, although they did not violate the WRPA. Operating defendants Shell and Ultra were rightly found liable under the WRPA for interest and penalties for failing to pay or escrow the NPI payments after the plaintiffs’ gave notice of their ownership of the NPI. The district court also properly determined that State Lease 79-0645 is a “replacement lease” under the Unit NPI Contract and, therefore, burdened by the plaintiffs’ NPI and the plaintiffs’ claims were not time barred under either the statute of limitations or laches.

The district court, however, made some errors in its damages award. Although it properly interpreted the overhead expense provisions of the First Parties’ and Novi’s agreement, it incorrectly concluded that produced gas used on the lease was to be included as revenue for the net profits calculation. This aspect of the judgment is reversed and remanded for recalculation of the damages. The district court also erred by making the non-operators jointly and severally liable for the entire judgment, and the district court’s ruling is reversed in that regard. The district court properly granted credit to the defendants for plaintiffs’ settlements with Questar/Wexpro.

Finally, we conclude the district court properly determined that plaintiffs were the prevailing parties in this litigation and did not abuse it discretion in making its attorney fees award.

Affirmed in part; reversed and remanded in part.

J. Kite delivered the opinion for the court.

Link: http://tinyurl.com/ykawvn6 .

C.J. Voigt dissented: The state of the record is not such that the plaintiffs have given the defendants sufficient notice of their ownership of the NPI, if it exists at all, to require the plaintiffs to pay them millions of dollars to satisfy the NPI. Summary judgment should not have been granted to the plaintiffs on the ownership issue.

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

Summary 2009 WY 120

Summary of Decision issued September 29, 2009

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

Case Name: Cellers v. Adami

Citation: 2009 WY 120

Docket Number: S-08-0110; S-08-0111

Appeal from the District Court of Johnson County, the Honorable John G. Fenn, Judge.

Representing Nora Cellers: Greg L. Goddard of Goddard, Wages & Vogel, Buffalo, Wyoming.

Representing Adami: Benjamin S. Kirven and Dennis M. Kirven of Kirven & Kirven, PC, Buffalo, Wyoming.

Facts/Discussion: This review of a summary judgment involves the interpretation of a marital settlement agreement. The primary issue was whether in that agreement the former wife relinquished her right as the named beneficiary to the proceeds of an investment account maintained by her former husband, now deceased.

Adami relied on Aetna Life Ins. Co. v. Bushnell arguing that the Court should apply it to the Cellers’ marital settlement agreement and hold that Nora Cellers relinquished her expectancy interest as the beneficiary by signing that agreement which contained language that set over to Stewart Cellers the investment account as his sole and separate property. Nora Cellers relied upon Costello v. Costello and stated that Costello appeared to have softened Bushnell’s implied renunciation rule in favor of a specific disclaimer rule. The Court noted in Wadsworth that the failure to distinguish properly between present property rights in insurance policies and the expectancies of beneficiaries has created confusion in interpreting property settlement agreements incorporated in divorce decrees and made difficult the court’s task of determining to whom insurance proceeds should be paid. There the court adopted a rule that to the extent no community property rights are invaded, the named beneficiary will generally be entitled to the proceeds. The Court commented on decisions from other states and noted that one of the rules that has been adopted was that the language must be an explicit waiver or relinquishment of the beneficiary’s interest. The Court agreed with those courts that hold the language in the property settlement agreement or divorce decree must reveal a specific and explicit waiver or relinquishment of the named beneficiary’s expectancy interest.

Conclusion: The Court held that under the unambiguous language of the marital settlement agreement, the former wife did not relinquish her right as the named beneficiary to the investment account proceeds; consequently, it reversed and remanded on that issue with directions that the district court enter judgment in favor of the former wife because further proceedings would serve no useful purpose.

Reversed and remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/ycgkrz2 .

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

Summary 2008 WY 139

Summary of Decision issued November 25, 2008

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

Case Name: Bd. Of County Comm., Campbell County, WY v. Rio Tinto Energy America, Inc.

Citation: 2008 WY 139

Docket Number: S-08-0052

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

Representing Appellant Campbell County: Carol Seeger, Deputy Campbell County Attorney, Gillette, Wyoming.

Representing Appellee Rio Tinto Energy America, Inc.: Hadassah M. Reimer of Holland & Hart LLP, Jackson, Wyoming and Patrick R. Day of Holland & Hart LLP, Cheyenne, Wyoming.

Facts/Discussion: This was an appeal from a district court’s reversal of a county’s calculation of statutory interest owed upon underpaid taxes. The question to the court: does Wyo. Stat. Ann. § 39-14-108(c)(i) require counties to offset overpaid taxes against underpaid taxes across tax years in an audit when calculating interest on underpaid taxes.
Rio Tinto operates two coal mines in Campbell County. After an audit covering the tax years 1999, 2000 and 2001, the Wyoming Department of Audit concluded that Rio Tinto had undervalued its production at both the mines for tax years 1999 and 2000 but that it had overvalued production for tax year 2001. The Department of Revenue certified to Campbell County notices of the valuation changes for the three tax years. Campbell County issued tax notices to Rio Tinto for the additional ad valorem taxes and interest due. The County Treasurer did not credit the 2001 overpayment against the 1999 and 2000 underpayments under the theory that the statute contemplated netting overpayments and underpayments during an audit period only between mines for the same tax year and not between tax years.
The County Treasurer would apply the statute by assessing interest on the 1999 underpayment from the due date until paid, would assess interest against the 2000 underpayment form the due date until paid, and would remit to Rio Tinto the 2001 overpayment upon receipt of notice form the Department of Revenue of the overpayment in the form of a rebate check and it would have no effect on the interest accrued during the audit period.
Rio Tinto would apply the statute by assessing interest on the 1999 underpayment from its due date and interest on the 2000 underpayment from its due date until receipt of the notice of the 2001 overpayment at which time it would subtract the overpayment from the total and assess interest only on the balance due form that point.
The Court agreed with the district court’s conclusion that the statute is unambiguous. The unequivocal mandate of the statute is that a net deficiency be computed, and that any offsetting credit be subtracted in determining the net deficiency for computing interest during the audit. This was the only reading of the statute that gave effect to both its requirement for the determination of a net deficiency and for its requirement that any offsetting credit be subtracted if within the cope of the audit period.

Holding: The district court correctly applied the statute to require the Campbell County Treasurer to determine Rio Tinto’s net ad valorem tax deficiency for the audit period by subtracting a 2001 overpayment credit from the gross deficiencies for 1999 and 2000.

Affirmed and remanded to apply the 2001 offsetting overvaluation credit in determining Rio Tinto’s net deficiency.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/68pb54 .

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

Summary 2008 WY 94

Summary of Decision issued August 14, 2008

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

Case Name: Burnett v. Steeley

Citation: 2008 WY 94

Docket Number: S-07-0225; S-08-0051

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

Representing Appellant: Jared S. Crecelius of Bailey, Stock & Harmon PC, Cheyenne, Wyoming.

Representing Appellee: William L. Hiser of Brown & Hiser, LLC, Laramie, Wyoming.

Facts/Discussion: Following divorce proceedings, the district court entered a judgment requiring Burnett (Husband) to pay Steeley (Wife) the amount of $417,609 in cash or property by April 1, 2006. Burnett did not pay or make any effort to pay the judgment by the date due. The district court entered another order requiring Burnett to pay the amount owed to Steeley in cash. The court entered an order awarding Steeley attorney’s fees and costs.
Authority to Order Payment in Cash: The judgment was to be paid by April1, 2006. It was not paid and Burnett’s initial offer to transfer property involved parcels to which he did not have clear title. Burnett’s subsequent offers of property appeared to have included provisions or complications making acceptance by Steeley impossible or at least difficult in light of her financial situation and her out of state residence. Once the judgment became final, Steeley had the legal right to proceed with enforcement. The district court had the discretion to determine the manner in which to enforce the judgment including the discretion to order Burnett to pay the unsatisfied amount in cash.
Order of Interest Deemed Proper: Burnett claimed the district court erred in ordering him to pay interest on the judgment after May 1, 2007, the date when he offered to convey property by warranty deed to Steeley in satisfaction of the judgment. He contended that Steeley’s rejection of his offer tolled the accrual of statutory interest. The words “until paid” as used in § 1-16-102(a) do not require the payment of a judgment amount to be made and accepted by the prevailing party to toll the accrual of statutory interest. By paying the judgment to the district court, i.e. surrendering control to the court, the defendant has “paid” the judgment amount and stopped the accrual. Burnett did not pay the judgment amount to the district court. Depositing quitclaim deeds for property to which he did not have clear title did not constitute “payment” such as would stop the accrual of interest, nor did his offer to convey property by warranty deed upon receipt of $43,000 from Steeley.
Attorney’s Fees: On appeal of an award of attorney’s fees, the burden is on the party attacking the district court’s ruling to show an abuse of discretion, and the ultimate issue is whether the court could reasonably conclude as it did. Upon consideration of the motions, affidavits and the arguments of counsel, the district court entered an order granting Steeley’s attorney’s fees motion. Given the evidence presented, Burnett did not meet his burden of showing an abuse of discretion.

Holding: After Burnett failed to satisfy the 2006 judgment, the district court had the authority to enforce it by ordering him to pay the unsatisfied amount in cash. They district court also properly ordered Burnett to pay statutory interest on the amount owing from the date it entered the judgment until it was paid. The court did not abuse its discretion when it awarded attorney’s fees Steeley incurred in enforcing the 2006 judgment.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/63ngv7 .

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

Summary 2008 WY 46

Summary of Decision issued April 16, 2008

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

Case Name: Stewart Title Guaranty Co. v. Tilden

Citation: 2008 WY 46

Docket Number: S-07-0208

Appeal from the District Court of Park County, the Honorable Gary P. Hartman, Judge

Representing Appellant (Defendant): Andrea L. Richard and Erika M. Nash of the Richard Law Firm, PC, Jackson, Wyoming.

Representing Appellee (Plaintiff): Jessica Rutzick of Jessica Rutzick Attorney at Law, PC, Jackson, Wyoming and John R. Vincent of Vincent Law Office, Riverton, Wyoming.

Facts/Discussion: Stewart Title appealed the district court’s award of statutory attorney’s fees and interest to Tilden. This is the third trip to the Court for the instant case.
Whether the filing deadline of W.R.C.P. 54(d)(2) applied: The unambiguous language of W.R.C.P. 54(d)(2) does not place a 14-day filing deadline upon application for fees in a case where the cause of action is for attorney’s fees. There was no reason to require the filing of a motion for attorney’s fees because the only reason any additional filing was required was that a partial summary judgment had been granted resolving the fact that statutory attorney’s fees were due but not establishing the amount.
Whether doctrine of res judicata bars award: The district court found that the arbitrator denied the attorney’s fee claim on the grounds that he had no authority to decide it. The language and intent of the Interim Order was clear. The arbitrator did not address and decide Tilden’s claim for statutory attorneys’ fees therefore, the issue was not barred by the doctrine of res judicata.
Whether contingent fees can be included: In its brief, Stewart Title did not mention the existence or effect of contingent fees. The Court noted that attorney’s fees must be proven to be reasonable. Whether or not attorney’s fees are fixed or contingent is one factor a district court is to consider in determining the reasonableness under the federal “lodestar” test adopted by the Court. The district court listed and considered the required lodestar factors.
Whether amounts billed in violation of Wyo. R. Prof. Conduct 8.4(g) can be included: Stewart Title contended that one of Tilden’s lawyers violated the rule by hiring and charging Tilden for the services of a certain paralegal. The Court summarily affirmed the district court’s rejection of Stewart Title’s objection to inclusion in the attorney’s fees award of amounts paid to the paralegal.
Whether prejudgment interest can be included: Wyo. Stat. Ann. § 26-15-124(c) does not clearly indicate whether prejudgment interest is available only upon the underlying claim or loss that the insurer refused to pay or also upon the attorney’s fees incurred both in vindicating that claim and in pursuing the attorney’s fees claim under the statute. The Court noted again that the arbitrator declined to decide the attorney’s fees issue because he concluded that he lacked the jurisdiction to make such a determination under applicable arbitration rules and that there was no prevailing party statute for him to apply. Attorney’s fees owed at any given time could have been readily computed and if Stewart Title had asked for the amount, they could have cut off the accrual of fees and interest. An insured, wronged by the dilatory tactics of an insurer cannot be made whole if he or she loses more in attorney’s fees and interest that he or she obtains in an underlying damage award.

Holding: The filing deadline of W.R.C.P. 54(d)(2) did not apply to an application for fees under Wyoming Statutes. The present action was not barred by the doctrine of res judicata because it was not raised, and could not be raised, in the arbitration. The district court did not err by including in the final judgment attorney’s fees that might have been contingent or attorney’s fees paid to a certain paralegal or prejudgment interest on the fees awarded in the judgment.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/6mzkeg .

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