Summary 2013 WY 54

Summary of Decision May 8, 2013


Justice Hill delivered the opinion for the Court. Answered in the Negative.

Case Name: In re: RALPH GIFFORD and BETTY J. GIFFORD, Debtors, GARY A. BARNEY, TRUSTEE v. BAC HOME LOANS SERVICING, L.P., its assigns and successors.

Docket Number: S-12-0177

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

W.R.A.P. 11 Certified Question from the United States Bankruptcy Court for the District of Wyoming, the Honorable Peter J. McNiff, Judge

Representing Appellant: Bradley T. Hunsicker and Stephen R. Winship of Winship and Winship, P.C., Casper, WY. Argument by Mr. Hunsicker.

Representing Appellee: Thomas M. Hefferon of Goodwin Proctor LLP, Washington, D.C.; and James R. Belcher of Belcher & Boomgaarden LLP, Cheyenne, WY. Argument by Mr. Hefferon.

Date of Decision: May 8, 2013

Facts: The United States Bankruptcy Court for the District of Wyoming certified a question to this Court concerning the effect of two Wyoming statutes on a debtor’s mortgage. Specifically, the bankruptcy court asks whether the mortgage must comply with Wyo. Stat. Ann. §§ 34-2-122 and 34-2-123.

Issues: The United States Bankruptcy Court for the District of Wyoming certified the following question to this Court:

Whether the mortgage must comply with Wyo. Stat. Ann. §§ 34-2-122 and 34-2-123?

Holdings: The Court answered the question in the negative. Wyo. Stat. Ann. §§ 34-2-122 and 123 are notice statutes intended to protect third parties from conflicting claims of a principal and agent. The Mortgage at issue in this case was not required to comply with Sections 122 and 123 because a) the recorded assignment of the Mortgage did not identify the grantee as acting in a representative capacity; and b) there were no conflicting claims of a principal and agent from which a third party would require protection.

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 2008 WY 53

Summary of Decision issued May 9, 2008

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

Case Name: PBS Enterprises, Inc. v. CWCapital Asset Management LLC

Citation: 2008 WY 53

Docket Number: S-07-0024; S-07-0251

Appeal from the District Court of Park County, the Honorable Dan Spangler, Judge.

Representing Appellant (Defendant): Timothy Charles Kingston, Graves, Miller & Kingston, PC, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Colin MacKenzie Simpson, Burg, Simpson, Eldredge, Hersh & Jardine, PC, Cody, Wyoming.

Facts/Discussion: PBS appealed the district court’s entry of summary judgment in favor of CWC. They also challenged the confirmation of the foreclosure sale which took place while the first appeal was pending. PBS owned and operated two hotels, one in Cody and another in Norfolk, Nebraska. CWC held PBS’s promissory note secured by the “Norfolk” mortgage. They also held promissory notes secured by two “Cody” mortgages on the Cody property. The Cody mortgages included cross-default provisions such that a default under the Norfolk mortgage was also a default under the Cody mortgage.
Default: It was undisputed that PBS defaulted on the Norfolk mortgage. PBS did not contest CWC’s foreclosure on that mortgage in Nebraska state court. Regardless of whether the parties agreed to change the payment schedule under the Cody mortgages, PBS’s default under the Norfolk mortgage also put it in default under the Cody mortgages. In the “Pre-Negotiation Agreement”, PBS conceded there were no modifications to the written agreement and confirmed that the written documents continued to define their legal and enforceable obligations.
Negligent or Intentional Misrepresentation: PBS complained that CWC misrepresented amounts due under the Cody mortgages. The Court’s review of the record showed that the Cody mortgage assigned the duty to provide the correct and accurate pay off amount to PBS, not CWC. Because PBS failed to establish that CWC had any duty to provide it with figures for the amount owed under the Cody mortgages, PBS could not sustain its intentional or negligent misrepresentation claims against CWC.
Confirmation of Foreclosure Sale: While PBS’s initial appeal was pending before the Court, CWC proceeded with the foreclosure sale. It then filed a motion asking the district court to confirm the foreclosure sale and enter a deficiency judgment against PBS. The district court retained the right and power to enforce its decree that CWC was entitled to foreclose against PBS even though that decision had been appealed. PBS did not seek to stay the district court’s order. Absent the stay, the district court did not exceed its authority to enforce the judgment.

Holding: The district court properly granted summary judgment to CWC in its foreclosure action against PBS and properly granted summary judgment against PBS’s counterclaims. The district court also had jurisdiction to confirm the foreclosure sale.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/5aydoj .

[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 39

Summary of Decision issued April 8, 2008

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

Case Name: In re Kite Ranch

Citation: 2008 WY 39

Docket Number: S-07-0196; S-07-0197

Appeal from the District Court of Albany County, the Honorable Jeffrey A. Donnell, Judge

Representing Dunmires: M. Gregory Weisz of Pence and MacMillan LLC, Laramie, Wyoming.

Representing Hedstroms: William H. Vines of Jones, Jones, Vines & Hunkins, Wheatland, Wyoming.

Representing Powell Family of Yakima, LLC and Brickmans: F. Scott Peasley and Frank D. Peasley of Peasley Law Office, Douglas, Wyoming.

Facts/Discussion: All of the parties to this appeal are members of Kite Ranch, LLC which owns a ranch in Albany County. The Dunmires and Hedstroms filed a declaratory judgment action seeking a determination of the parties’ respective rights in the company. Powell and Brickman petitioned the district court for a preliminary injunction granting Powell the right to manage Kite Ranch during the pendency of the litigation and enjoining the Dunmires and Hedstroms from interfering with its management. The district court granted and subsequently amended a preliminary injunction in favor of Powell and Brickmans. Dunmires and Hedstroms appealed claiming the district court improperly amended the preliminary injunction without allowing them to be heard and the amended preliminary injunction was improper because it did not require Powell to preserve the status quo of the limited liability company during the pendency of the litigation.
Procedure for Amendment of Preliminary Injunction Order: The Court considered the district court’s decision letter issued prior to the entry of the original preliminary injunction order important to their conclusion that the change the court made to the final order was clerical. A fair reading of the letter indicated that the immediate management needs for Kite Ranch included dealing with the mortgage and note which was in default at the time of the hearing and arranging for the lands to be leased. The district court clearly intended that Powell have the right to mortgage and lease the property as part of its management authority and duties during the term of the preliminary injunction. The written order did not accurately reflect the district court’s intent. It was therefore a clerical matter to correct the order by clarifying that Powell had those management rights.
Terms of the Preliminary Injunction: To justify an injunction, there must be a showing the potential harm is irreparable. Powell claimed it was entitled to manage the LLC under § 17-15-116 because there was no operating agreement and it had the only positive capital account. The evidence at the hearing supported Powell’s claim. The district court referred to § 17-15-104 as delineating Powell’s management powers but in deference to Dunmires’ and Hedstroms’ concerns, the court limited Powell’s powers. Dunmires and Hedstroms were focused on Powell’s actions after the preliminary injunction was entered. These actions have not been addressed by the district court and are therefore not ripe for review by the Court. The Court stated that maintaining the status quo of an ongoing business does not mean decisions cannot be made.

Holding: The district court did not abuse its discretion by granting a preliminary injunction giving Powell management authority over Kite Ranch during the pending litigation. The propriety of the specific actions taken by Powell including the terms of the refinancing is yet to be determined by the district court. The Court presumed that would happen during the impending litigation. In the meantime, Powell was properly given the right to take the actions necessary to keep the company’s business viable, including mortgaging and leasing the property.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/5cj5e9 .

[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 2007 WY 116

Summary of Decision issued July 27, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, please contact the Wyoming State Law Library.]

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

Case Name: Pinther v. Ditzel

Citation: 2007 WY 116

Docket Number: 06-231

Appeal from the District Court of Laramie County, Honorable Wade E. Waldrip, Judge

Representing Appellant (Defendant): Donald Eugene Miller of Graves, Miller & Kingston, Cheyenne, Wyoming

Representing Appellee (Plaintiff): Terry Wynn Connolly, of Patton & Davison, Cheyenne, Wyoming

Date of Decision: July 27, 2007

Issue: Whether the district court properly applied the tort of negligent misrepresentation to reduce the payoff amount on a mortgage.

Facts/Discussion: Ditzel wanted to pay off a loan and extinguish the mortgage on his property, but he and Pinther could not agree on the payoff amount. Ditzel filed a declaratory judgment action asking the district court to determine the payoff amount.
Standard of Review: Following a bench trial the Court reviews a district court decision using a clearly erroneous standard for factual findings and a de novo standard for conclusions of law.
A published foreclosure notice had stated that the payoff amount on the mortgage would be $37,609.73. Ditzel contended that Pinther was bound by that amount, even if it proved to be incorrect, and even though the foreclosure sale had been canceled. In contrast, Pinther relied on the mortgage agreement, which allowed him to include certain filing fees, insurance premiums, attorney’s fees, and taxes that he had mistakenly failed to include in the published payoff amount for a payoff amount of $57,675.93 as of the foreclosure sale date. Pinther asserted that, because the foreclosure sale on the senior mortgage had been canceled, he was not obligated to accept as the payoff amount the mistaken figure published in the foreclosure notice. The district court accepted Ditzel’s argument, and ruled that the payoff amount, as of the foreclosure sale date, was the lower figure of $37,609.73.

Negligent misrepresentation is a tort claim. Ditzel did not actually assert negligent misrepresentation as a separate tort claim. The ‘negligent misrepresentation’ issue was forwarded only as a method for the court to determine the amount necessary to pay the note and release the mortgage. Tort theories may not be used to change the terms of a written agreement. Where the parties have a contractual agreement, the contractual relationship controls, and parties are not permitted to assert actions in tort in an attempt to circumvent the bargain they agreed upon. Absent a completed foreclosure sale, Pinther owed no duty to Ditzel in representing the payoff amount on the senior mortgage. Accordingly, there was no foundation for the conclusion that the tort of negligent misrepresentation justifies a departure from the terms of the mortgage agreement.

Holdings: The district court erred when it used the tort of negligent misrepresentation to vary the terms of a written agreement. The payoff amount should have been calculated in accordance with the parties’ written agreement.

Reversed and remanded.

J. Burke delivered the opinion for the court.

Link: http://tinyurl.com/37h7kg .