Summary 2013 WY 37

Summary of Decision March 27, 2013

Justice Hill delivered the opinion for the Court. Dismissed.

Case Name: SARAH FERRELL v. EARL KNIGHTEN

Docket Number: S-12-0174

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

Appeal from the District Court of Hot Springs County, Honorable Robert E. Skar, Judge

Representing Appellant (Plaintiff/Defendant): Mary L. Scheible, Thermopolis, WY.

Representing Appellee (Plaintiff/Defendant): Michael S. Messenger and James A. Michel Jr. of Messenger and Overfield, P.C., Thermopolis, WY.

Date of Decision: March 27, 2013

Facts: Appellant Sarah Ferrell challenges an order dismissing her professional negligence claim against a real estate agent who represented the sellers in Ferrell’s 2001 purchase of a commercial property. On appeal, Ferrell claims that the agent was negligent in failing to provide a property disclosure statement.

Issues: Ferrell presents one issue: Whether a realtor acting as seller’s agent has a duty of care to the buyer.

Holdings: Due to Ferrell’s failure to challenge the statute of limitations ruling by the district court, this case is dismissed.

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 118

Summary of Decision September 7, 2012

Justice Burke delivered the opinion for the Court. Affirmed.

Case Names:  ANNE UHR WHITE v. SHANE EDEBURN CONSTRUCTION, LLC; PARIS L. EDEBURN; and PAUL B. TOZER and SHANE EDEBURN

ANNE UHR WHITE v. CONNIE WEBB, SHANE EDEBURN, PARIS L. EDEBURN, and PAUL B. TOZER

Docket Number: S-11-0218, S-11-0219

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

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

Representing Appellant (Plaintiff/Defendant):  Pro se.

Representing Appellee, Connie Webb: Billie LM Addleman and Amanda M. Good, Hirst Applegate, LLP, Cheyenne, Wyoming.

Representing Appellees, Shane Edeburn Construction, LLC, Paris L. Edeburn, Paul B. Tozer, and Shane Edeburn: Karen Budd-Falen and Brandon L. Jensen, Budd-Falen Law Offices, LLC, Cheyenne, Wyoming.

Date of Decision: September 7, 2012

Facts: The issues presented in these appeals involve three parcels of land formerly owned by Appellant, Anne Uhr White, in the Table Mountain Ranches (“TMR”) subdivision in Laramie County, Wyoming.  In early 2011, Appellees Shane Edeburn Construction, LLC, Paris Edeburn, and Paul Tozer, initiated legal action to terminate Ms. White’s lease on Lot 2 and Tract 12 of the TMR subdivision.  Ms. White counterclaimed against these parties and added Shane Edeburn as a third-party defendant, asserting that they had violated the covenant of good faith and fair dealing in attempting to terminate the lease.  Ms. White also filed a separate action against Appellees Shane Edeburn, Paris Edeburn, Paul Tozer, and real-estate agent, Connie Webb, claiming that they committed fraud and wrongfully conspired to deprive her of an opportunity to repurchase Lot 11 after she lost the property in foreclosure.  In Docket No. S-11-0218, Ms. White challenged the district court’s grant of summary judgment declaring the lease on Lot 2 and Tract 12 to be terminated and ordering Ms. White to vacate the property.  She also challenged the district court’s dismissal of her claim for breach of the implied covenant of good faith and fair dealing.  In Docket No. S-11-0219, Ms. White challenged the dismissal of her claims of fraud and conspiracy to commit fraud relating to the sale of Lot 11.

Issues: In Docket No. S-11-0218, Ms. White presented two issues, which the Court rephrased as follows:

Did the district court err in granting summary judgment in favor of the Edeburns with respect to their claim that Ms. White breached the lease agreement? Did the district court err in dismissing Ms. White’s claim for breach of the implied covenant of good faith and fair dealing?

The Edeburns stated the issues in a substantially similar manner as above, but presented the following additional issue: Is the appeal of the termination of the lease agreement moot because the Appellant no longer has an interest in the real estate?

In Docket No. S-11-0219, Ms. White presented three issues, which can be set forth as a single issue: Did the district court err in dismissing Ms. White’s claims for fraud and conspiracy to commit fraud?

Holdings: The Court affirmed the decisions of the district court in both appeals.

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 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 2010 WY 23

Summary of Decision issued March 3, 2010

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

Case Name: Throckmartin v. Century 21 Top Realty; Throckmartin v. Nelson

Citation: 2010 WY 23

Docket Number: S-08-0250; S-08-0269

Appeal from the District Court of Campbell County, the Honorable Michael N. Deegan, Judge.

Representing Appellant Throckmartin: Jessica Rutzick, Jackson, Wyoming and John R. Vincent, Riverton, Wyoming.

Representing Appellee: Billie L.M. Addleman and Gary R. Scott, Hirst Applegate, LLP, Cheyenne, Wyoming, representing Century 21 Top Realty. Kathy Hove, Casper, Wyoming; P. Craig Silva and Patrick J. Murphy of Williams, Porter, Day & Neville, PC, Casper, Wyoming representing Vicki Means Nelson and Real Estate Professionals, Inc., d/b/a Re/Max Professionals.

Facts/Discussion: In November 2005 the Throckmartins purchased a house in Gillette. In August 2006 they discovered the basement of the house leaked very badly during significant rainfall, that the foundation had crumbled, and that the house was becoming uninhabitable. Eventually it was condemned by the city. The Throckmartins filed suit naming two real estate firms and their respective agents as well as the sellers of the home and the home inspection experts. Other litigation remains pending in the district court with respect to the sellers and the inspection specialists.

Case No. S-08-0250: The only contention the Throckmartins brought against Hove and Century 21 was that as a real estate agent in Gillette, Hove had a duty to know the “actual condition” of all the properties she sold to buyers. Hove denied having any actual knowledge of the problems and the Throckmartins did not point to pertinent authority that Hove had a duty to be aware of the condition of the properties she showed to buyers. Although the principle of caveat emptor has been blunted in the arena of real estate by case law and statute, the primary responsibility for obtaining adequate inspections of newly purchased homes falls on the buyer. The record on appeal did not support a factual finding that Hove did anything to frustrate, discourage or impede the Throckmartins’ full right to have complete inspections done on the home they decided to purchase.
Case No. S-08-0269: The Throckmartins contended that Nelson and Re/Max owed them a duty to fully disclose material facts and to affirmatively verify the truth of information or to investigate the property. In addition, they contended the duty was breached amounting to a claim for negligent nondisclosure and negligent representation. However, since Nelson and Re/Max were both considered intermediaries, in Wyoming they had no duty to conduct an independent inspection of the property for the benefit of the buyer and no duty to independently verify the accuracy or completeness of statements made by the seller or independent inspectors.

Conclusion: The district court concluded there were no genuine issues of material fact since the Throckmartins were unable to come forward with any facts that suggested the adverse material facts at issue were “actually known” to Hove and Century 21. Hove and Century 21 were entitled to judgment as a matter of law. The facts supported the conclusion that there was no contract between Nelson and Re/Max and the Throckmartins. Without a contract, there was no basis for imposition of the implied covenant, whether in contract or in tort, because either cause of action arises out of the contractual relationship.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/ygnw9xc .

[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.]