Summary 2013 WY 150

Summary of Decision December 10, 2013

Justice Kite delivered the opinion for the Court. Affirmed.

Case Name: THE ESTATE OF JOAN M. MARUSICH v. STATE OF WYOMING, ex rel., DEPARTMENT OF HEALTH, OFFICE OF HEALTHCARE FINANCING/EQUALITYCARE

Docket Number: S-13-0036

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

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

Representing Appellant: Craig C. Cook and Dennis C. Cook of Cook & Associates, P.C., Laramie, Wyoming. Argument by Mr. Craig C. Cook.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; Robin Sessions Cooley, Deputy Attorney General; Kristin M. Nuss, Senior Assistant Attorney General. Argument by Ms. Nuss.

Date of Decision: December 10, 2013

Facts: After Joan M. Marusich died, the State of Wyoming ex rel. Department of Health, Office of Healthcare Financing/Equalitycare (Department) filed a lien against the home she owned with her husband, William Marusich, as tenants by the entirety. The Department sought to recover the cost of Medicaid benefits paid on behalf of Mr. Marusich, who had predeceased Mrs. Marusich. The Estate of Joan M. Marusich (Marusich Estate) filed a petition to remove a false lien. The district court granted summary judgment in favor of the Department, ruling that under the relevant federal and state laws, the lien was appropriate. After the district court entered a final judgment on the amount of the lien and denied the Marusich Estate’s motion to amend the petition, the estate appealed.

Issues: The Marusich Estate presents the following issues on appeal: Whether property owned by a married couple as tenants by the entireties may be subject to a lien against property in the estate of the surviving spouse for recovery of Medicaid expenses paid solely on behalf of the predeceased spouse. Whether the remedial provisions of W.S. § 29-1-601(b) may be invoked against appellee as claimant on a legally groundless and impermiss[i]ble recorded claim of lien. Whether the district court erred when it denied a motion to amend petition to conform the pleadings to the underlying cause of action in quiet title that was argued by the parties on cross motions for summary judgment. The Department’s issues are similar, though phrased differently.

Holdings/Decision: The district court correctly granted summary judgment upholding the Department’s lien. The district court stated in its decision letter that the Department was entitled to attorney fees and costs and the Department submitted an affidavit in support of its claim, the record does not indicate that the district court ever awarded fees and costs. In fact, the Marusich Estate concedes no such order was ever entered. We will not, therefore, further address the issue of whether the Department was entitled to attorney fees and costs. The quiet title claim propounded by the Marusich Estate was based upon the validity of the Department’s Medicaid lien. In fact, the motion to amend the petition specifically stated that the Marusich Estate “does not seek to amend or alter any factual allegation in its original Petition or prayer for relief. . . . The proposed amendment will not, in any way, alter Petitioner’s legal arguments already presented in this matter.” As the district court properly recognized, the validity of the lien had already been decided. Whether the Marusich Estate’s claim was restyled as a quiet title action or not, the result would be the same. The district court did not abuse its discretion by denying the Marusich Estate’s motion to amend the petition. 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 42

Summary of Decision April 11, 2013

Justice Voigt delivered the opinion for the Court. Affirmed.

Case Name: JASON THORNOCK and TRACY THORNOCK v. ERICK W. ESTERHOLDT, as Trustee of the Erik W. Thornock Revocable Trust dated August 6, 2009, and JEANNE M. ESTERHOLDT, as Trustee of the Jeanne M. Esterholdt Revocable Trust dated August 6, 2009.

Docket Number: S-12-0138

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

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

Representing Appellants: David M. Clark of Worrall & Greear, P.C., Worland, Wyoming

Representing Appellee: Sharon M. Rose, The Rose Law Firm, P.C., Evanston, Wyoming.

Date of Decision: April 11, 2013

Facts: The Thornocks filed an action against the Esterholdts and others, seeking to quiet title to certain lands in Lincoln County, Wyoming. The district court eventually granted summary judgment to the Thornocks as to some of the land, but denied summary judgment as to a certain strip of property. After a bench trial, the district court quieted title in the disputed strip of land in the Esterholdts. The Thornocks appealed.

Issues: 1. Whether an appurtenant easement was created by a deed that granted, in addition to tracts of fee title land, “[a]lso that right of way to be used in connection with said land and described as follows:…”

2. Whether, if the answer to the first question is in the negative, an appurtenant easement was created by a deed that granted “[a] right-of-way, described as follows, to wit:…”

Holdings: The district court’s findings of fact are not clearly erroneous in any material way, and they support the court’s conclusions of law. The Thornocks do not have an appurtenant easement in the disputed land, which is owned by the Esterholdts. The district court is 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 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 2009 WY 10

Summary of Decision issued January 29, 2009

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

Case Name: In re: Estate of Thomas

Citation: 2009 WY 10

Docket Number: S-08-0109

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

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

Representing Appellee Thomas: Russell Rauchfuss, Casper, Wyoming.

Facts/Discussion: Appellant Dickson requested review of a district court order which quieted title to the property at issue in the appeal, to Dickson and the estate of Thomas “in equal shares as tenants in common.” Thomas was Dickson’s brother. Dickson contended that the quiet title action should have resulted in recognition that the two siblings held title to the property as joint tenants with sole right of survivorship, and that the occurrence of Thomas’ death left Dickson as the sole owner of the property.

The grantor attempted to create a tenancy by the entireties in his son and daughter but he also used the words “with right of survivorship and not as tenants in common.” The Court thought the Exhibit 1 Deed evidenced an unintentional error (mistake.) A joint tenancy can only be created by an act of the parties but may also be the result of an attempt to create an impossible tenancy by the entirety. The Court concluded that the deed was not ambiguous when all of its language was read together because tenancy in common was forthrightly eliminated. That portion of the district court’s judgment was reversed and the Court remanded the district court enter a judgment reflecting that after the death of her brother, Dickson was now sole owner of the land described in the Exhibit 1 Deed.

The Court thought the circumstances were different with the Exhibit 2 Deed. Wyo. Stat. Ann. § 34-4-140 reflects the legislative intention that “joint tenancies” and “tenancies by the entireties” are created by the use of one or the other of those phrases. The Court considered the wording of the Exhibit and stated that since there was no apparent intention to create a tenancy by the entireties, by default it assumed that a tenancy in common was intended.

Conclusion: The Court held that the district court erred in treating the Exhibit 1 Deed as creating a tenancy in common. That portion of the district court’s judgment was reversed. The Court affirmed the district court’s order to the extent that it settled the ownership of the Exhibit 2 Deed property in Dickson and Thomas’s estate as tenants in common.

Affirmed in part, reversed in part.

J. Hill delivered the decision.

Link: http://tinyurl.com/bwkdcc .

[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 4

Summary of Decision issued January 22, 2009

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

Case Name: Shores v. Bucklin

Citation: 2009 WY 4

Docket Number: S-08-0033

Appeal from the District Court of Big Horn County, the Honorable Steven R. Cranfill, Judge.

Representing Appellant Shores: J. Craig Abraham, Plains Law Offices, LLP, Gillette, Wyoming.

Representing Appellee Bucklin: Stephen L. Simonton, Stephen L. Simonton, PC, Cody, Wyoming.

Facts/Discussion: The Shores appealed from the district court’s order entering judgment in favor of the Bucklins quieting title to a parcel of land in Big Horn County. The court ruled that summary judgment was proper, in that the Shores did not have evidence to support a “color of title” theory. Also, there was not satisfaction of the 10-year period for adverse possession. Pursuant to the Wyoming Rules of Civil Procedure (W.R.A.P.), dismissal was proper as a sanction for failure to comply with the scheduling order.

The Shores argued on appeal that there were genuine issues of material fact which a jury should be allowed to determine. The Court has previously held that the party seeking judicial review of an administrative action must comply with the W.R.A.P. and when they fail to do so, the Court may refuse to consider the contentions; assess costs; dismiss the appeal; or affirm the lower court’s decision. The Shores failed to comply with applicable rules, including failure to provide any citation to the record; they also failed to provide relevant argument or legal authority to support their contentions. The Court summarily affirmed the decision of the district court.

Conclusion: Summary judgment in favor of the Bucklins was affirmed. The Shores were ordered to reimburse costs and attorney’s fees generated in the defense of the instant appeal.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/d6zruq .

[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 111

Summary of Decision issued September 23, 2008

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

Case Name: Cook v. Eddy

Citation: 2008 WY 111

Docket Number: S-07-0272

Appeal from the District Court of Niobrara County, the Honorable Keith G. Kautz, Judge.

Representing Appellant: James A. Eddington, Torrington, Wyoming.

Representing Appellee: Frank D. Peasley, Douglas, Wyoming.

Facts/Discussion: After a bench trial, the district court quieted title to approximately 40 acres of Cook’s land to Eddy. Cook appealed claiming the district court erred by ruling that Eddy had quieted title to the property by adverse possession. Eddy and Cook own adjoining mountainous properties in Niobrara County. The fence that separated their properties did not follow the east-west township line; it was north of the line and, accordingly, enclosed 40.44 acres of Cook’s land inside Eddy’s pasture. Eddy has used the property for grazing his cattle since he contracted to purchase his property in 1988.
To establish adverse possession, the claiming party must show actual, open, notorious, exclusive and continuous possession of another’s property which is hostile and under claim of right or color of title. Eddy testified he occupied the disputed land each year by allowing his cattle to graze it and using it to access another pasture. Cook attempted to meet his burden by establishing that Eddy’s use of the disputed property was permissive because the fence was built off line as a matter of convenience. The district court concluded the fence was a boundary fence and not a fence of convenience because there was an old path cleared along the correct boundary; the fence departed severely from the property boundary; the fence runs in three straight sections with only small deviations within those sections to accommodate trees or rocks; and in general the route of the fence is across as irregular terrain as the route of the correct boundary. The Court concluded that based on the record, the district court’s finding that the fence was a boundary fence rather than a fence of convenience was not clearly erroneous. Cook also argued that he asserted ownership by paying taxes on it, spraying for grasshoppers, leasing the mineral rights, and by cutting posts and poles and repairing the fence.

Holding: The record supported the district court’s determination that Eddy was entitled to a presumption that he adversely possessed the property.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/4rr6oh .

[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 80

Summary of Decision issued July 14, 2008

[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: Lasen v. Anderson

Citation: 2008 WY 80

Docket Number: S-07-0138

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

Representing Appellant (Plaintiffs): Jerry M. Smith of Torrington, Wyoming.

Representing Appellee (Defendant): Howard P. Olsen Jr. of Simmons Olsen Law Firm, Scottsbluff, Nebraska

Date of Decision: July 14, 2008

Facts: Robert Anderson was the father of Barbara (Anderson) Lasen and Samuel L. Anderson. Samuel predeceased his father, dying in April of 1998. Robert passed away in February of 2003 after living most of his adult life in Scottsbluff, Nebraska. Prior to both men passing, Robert executed a deed in 1995 conveying a farm in Goshen County, Wyoming, to his children, Barbara and Samuel. After Samuel died, Robert executed another deed on July 2, 1998, conveying the same Goshen County farm to Barbara and her husband Paul (the Lasens). Disputing the validity of the new deed, in May of 1999 Samuel's children Tricia Rohloff and Lee Anderson filed a Notice of Execution and Delivery of Warranty Deed with the Goshen County Clerk asserting an interest in the farm based on the first deed executed in 1995. After Robert died, the 1998 deed was recorded on March 3, 2003, by the Lasens. And although the Lasens' complaint to quiet title asserted their rights to the Goshen County farm based upon the 1998 deed, Samuel's children argued that the 1995 deed was executed, delivered, accepted, and irrevocable - giving no effect to the 1998 deed. Samuel's children further asserted that their grandfather Robert was not competent to execute the 1998 deed, and that the 1998 deed was procured through undue influence on Robert by the Lasens. On July 11, 2005, the Lasens filed the complaint at issue in the instant case, asking the district court to quiet title in the Goshen County farm owned by Robert before he passed away. Named as defendants in the complaint, Tricia Rohloff and Lee Anderson responded and alleged numerous affirmative defenses. On March 21, 2006, First National Bank of Fort Collins, Colorado, as Trustee of the Anderson Family Irrevocable Trust No. 1 dated August 14, 1997, intervened as an additional defendant, claiming an interest in the Goshen County farm on behalf of the estate of Samuel Anderson. After a bench trial, the district court entered an Order Denying Plaintiffs' Complaint to Quiet Title and Granting Intervenor's Counterclaim to Quiet Title.

Issues: Whether the findings of the District Court are clearly erroneous as a matter of law and unsupported by the evidence. Whether the District Court erred in determining that the Plaintiffs exercised undue influence to gain execution of a 1998 Deed to the property. Whether the District Court erred in determining a 1995 Deed was properly delivered. Whether the District Court erred by not considering whether Defendants had unclean hands.

Holdings: In order to prevail on a claim of undue influence, the following must be proven: 1) opportunity to control; 2) a condition permitting subversion; and 3) activity on the part of the person charged. Upon review, the facts in the instant case amount to one of the clearest cases of undue influence the court has seen To support its conclusions, the district court noted that even before Samuel Anderson's funeral, the Lasens were making appointments with attorneys to assure that Robert Anderson's will was changed. The substantive changes to that will all but disinherited Samuel Anderson's children, gave most of the estate to Barbara Lasen, and ultimately Paul Lasen if he survived Barbara. The court also declared it "apparent" that by 1998, Robert's mental health was "seriously compromised," noting that one day Barbara took her father to the doctor to discuss his deteriorating mental status, and the very next day took him to an attorney to execute a new will and a new deed to the Goshen County farm, which deed was prepared by Mr. Lasen. The district court's findings do not stop there. The court observes in its decision letter that the Lasens took Robert to a nursing home with orders to not resuscitate him in the event of an emergency. Also, in violation of a court-ordered conservatorship, the Lasens used their power-of-attorney to transfer large sums of money from Robert to themselves, to buy a car and an airplane, and to sell Robert's Arizona townhouse for their own profit. The district court ultimately found that the Lasens clearly had an opportunity to control Robert Anderson. The activities of the Lasens after Samuel Anderson's death were continually directed towards causing Robert Anderson to change his will, his power-of-attorney, and the deed in question. Seeing no facts to the contrary, the district court is affirmed.

To effect a conveyance transferring title, a deed must be both executed and delivered. At the time of the delivery the grantor's intent is of primary and controlling importance. The Lasens argue that the deed was never delivered exactly as Robert instructed and that there is a "total lack of evidence of delivery." Undeniably, the deed was accepted by Samuel for filing upon his father's death rather than being given to Paul Lasen to hold in escrow until Robert's death as were the exact instructions. However, as the district court points out, the Lasens were "ready and willing to accept any and all of Robert Anderson's assets at any time." The district court found a "clear, irrevocable transfer" of the Goshen County property by Robert Anderson. The fact that a second deed was written and executed by the Lasens in 1998 does not obviate the first deed that was both executed and delivered.

Finally, the Lasens argue that Samuel Anderson's children come before this Court with unclean hands, alleging first that Samuel's children refused to give Robert his papers, files, and other property when requested, and second that Samuel embezzled funds from another trust, and from Barbara Lasen, and that the existence of the 1995 deed and escrow letter was concealed throughout the legal proceedings. This argument fails on appeal as it appears to be a "red herring" argument made by the Lasens in a last ditch effort to resurrect this case in their favor. Furthermore, the Lasens have failed to support what argument they make with citation to or analysis of pertinent legal authority.

The district court's Order Denying Plaintiff's Complaint to Quiet Title and Granting Intervenor's Counterclaim to Quiet Title is affirmed.

J. Hill delivered the opinion for the court.

Summary 2007 WY 34

Summary of Decision issued March 2, 2007

[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 with a citation using the Universal Citation form, 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: Wayt v. Urbigkit

Citation: 2007 WY 34

Docket Number: 06-125

Appeal from the District Court of Natrona County, the Honorable Scott W. Skavdahl, Judge

Representing Appellant (Plaintiff): Pro se.

Representing Appellee (Defendant): Marvin L. Bishop, III of Bishop, Bishop & Yaap, Casper, Wyoming.

Issues: Whether the district court erred in holding Wayt has failed to present clear, cogent, and convincing evidence to overcome the presumption that his signature on the notarized Warranty Deed is valid. Whether the district court erred in granting Urbigkit’s Motion for Summary Judgment by holding that since Wayt stated under oath he transferred the real property to Urbigkit by Warranty Deed that he is not allowed to recant in an effort to regain title to the property.

Facts/Discussion: Wayt appeals from the district court’s summary judgment order quieting title to certain Natrona County real property in Urbigkit. Wayt claimed that a warranty deed which conveyed property from him to Urbigkit was forged and was not supported by adequate consideration. The district court relied upon the statutory presumption of correctness afforded to documents supported by a notary’s certificate and granted summary judgment in favor of Urbigkit. The district court also concluded Wayt could not take the position that he did not sign the deed when he had admitted he made the conveyance in the prior civil action.
Standard of Review: On appeal the Court reviews a district court summary judgment order de novo.
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Pursuant to Wyo. Stat. Ann. § 32-1-107, if any document is notarized, the facts contained in the notary’s certificate are presumed correct. To rebut the presumption that the facts contained in the notary’s certification are true, the challenging party must provide cogent, clear and convincing evidence of their falsity. There is a presumption in favor of the correctness of a notary’s certificate. Wayt’s evidence does not prove that his signature was never notarized, rather it establishes there may be a question of fact about the date the deed was signed and acknowledged. Moreover, Wayt’s sworn statement in the lis pendens notice effectively prevents him from being able to meet the clear and convincing evidence standard necessary to overcome the presumption the facts contained in the notary certificate were true.
Wayt also claims summary judgment was improper because issues of fact existed as to the adequacy of the consideration for the conveyance. The factual dispute about the type or amount of the consideration for the deed was irrelevant. The deed included the recital the conveyance was made in consideration of ten dollars and other good and valuable consideration and Wayt acknowledged receipt of the consideration. That acknowledgement was prima facie evidence of that fact. Wayt did not present any evidence, other than his own uncorroborated statement, to rebut the presumption that he received consideration for the conveyance. Consequently, no issues of material fact existed as to the adequacy of the consideration.
Moreover, the law is well established that, as between the parties, a deed for conveyance of real property is good without consideration so long as there is no wrongful act, such as fraud or undue influence, on the part of the grantee.

Holding: The district court properly granted Urbigkit’s summary judgment motion and quieted title to the property in her.

Affirmed.

J. Kite delivered the decision.

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

Summary 2007 WY 10

Summary of Decision issued January 18, 2007

[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.]

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

Case Name: Wilson & Wilson v. Lucerne Canal and Power Co.

Citation: 2007 WY 10

Docket Number: 05-292

Appeal from the District Court of Goshen County, the Honorable Keith G. Kautz, Judge

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

Representing Appellee (Plaintiff): Jerry M. Smith of Jerry M. Smith Law Office, Torrington, Wyoming.

Issue: Whether the Wilsons’ claims are barred by the doctrine of res judicata or by the doctrine of collateral estoppel. Whether the Wilsons’ claims are barred by the doctrine of judicial estoppel. Whether the district court erred in refusing to quiet title to the property in the Wilsons as against Lucerne. Whether the district court erred in ordering the Wilsons to pay Lucerne’s attorney’s fees.

Facts/Discussion:
Are the Wilsons’ claims barred by the doctrine of res judicata or by the doctrine of collateral estoppel? The district court’s final order contained the following conclusion: Lucerne uses the same diversion and channel it always has, and such use was recognized by the 1990 Consent Decree. Wilsons are precluded by collateral estoppel and res judicata from now challenging that use. Two features of the doctrines are significant in light of the circumstances of the present case: claim preclusion bars not just issues that were actually litigated in the prior action but issues that could have been raised in that action; and consent decrees are the equivalent of litigated judgments for purposes of res judicata. The Consent Decree was a recognition of Lucerne’s right to use the eastern channel. The 1988 litigation does not bar the Wilsons’ current desire to have the courts quiet title in them to the unpatented riparian lands. The 1988 litigation was fundamentally an access easement controversy. It did not directly implicate ownership of the lands that had “arisen” through natural redirection of the river. The question of whether the Wilsons gained ownership over the unpatented riparian lands was not so intertwined with the road access question as to require that it be litigated at the same time. The “island” exists as a parcel of no-longer-submerged land and the question of its ownership needs to be resolved.
Are the Wilsons’ claims barred by the doctrine of judicial estoppel? The Court agreed with the district court’s application of judicial estoppel to the same extent that they agreed with its application of the doctrines of res judicata and collateral estoppel. The 1988 Consent Decree assumed Lucerne’s right to use the channel/canal to carry water from its diversion dam to its headgate. Therefore, the Wilsons are judicially estopped from taking a contrary position. On the other hand, the issues involved in the quiet title action that are now pending, in particular the question of reliction and the resultant ownership of formerly inundated lands were neither addressed nor resolved in the earlier litigation and judicial estoppel does not bar the present litigation of those issues.
Did the district court err in refusing to quiet title to the property in the Wilsons as against Lucerne? When a trial court has made express findings of fact and conclusions of law in a bench trial, the Court reviews the factual determinations under the clearly erroneous standard and the legal conclusions de novo. The Wilsons sought to quiet title to the lands underlying the old eastern channel of the river and the lands lying between that channel and the western channel. The district court found and concluded the eastern channel continues to be a river channel and the Wilsons had failed to prove that accretion had occurred. The Court defined reliction and accretion and stated the facts presented in the record clearly reveal the claims are based upon the doctrine of reliction rather than accretion. The essential finding and conclusion of the district court was that the Wilsons failed to prove the eastern channel no longer was a river channel, and failed to prove that reliction had occurred. A complete review of the record convinced the Court those findings and conclusions were erroneous. The facts lead to the conclusion that reliction had occurred and that title to the property should be quieted in the Wilsons. However, that conclusion does not answer the entire question and should not be construed as contradictory to the Court’s earlier conclusion regarding estoppel and res judicata. The stipulated resolution of the earlier proceedings included the presumption that Lucerne had the right to transport sufficient water down the eastern channel, now operated in fact as an irrigation canal, to operate its lower diversion and headgate at a fully functional level, including the right to release necessary overflow back into the North Platte River. Consequently, the Wilsons’ title to the property must be subject to that right.
Holding: The Court affirmed the conclusion of the district court that the Wilsons are barred from relitigating the issue of Lucerne’s right to transport water from its upper division dam to its lower headgate. As to the issue of quiet title the Court reversed and remanded the matter to the district court for an entry of an order quieting title to the property in the Wilsons subject to the right of Lucerne to transport water from its diversion dam to its headgate and beyond. If the precise location of such easement cannot be stipulated, the district court shall take additional evidence to identify the precise location including the survey originally ordered by the district court in its January 10, 1989 order. These conclusions lead to the additional conclusion that the district court erred in ordering the Wilsons to pay Lucerne’s attorney’s fees and that portion of the judgment was also reversed. The record does support the district court’s conclusion that Lucerne did not establish its damage claims by a preponderance of the evidence.

Affirmed.

C.J. Voigt delivered the decision.

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