Summary 2011 WY 103

Summary of Decision July 6, 2011


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

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

Case Name: Dunham v. Fullerton

Citation: 2011 WY 103

Docket Number: S-10-0242

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=463759

Appeal from the District Court of Natrona County, The Honorable David B. Park, Judge

Representing Appellant (Plaintiff): Todd Hambrick, Casper, Wyoming.

Representing Appellee (Defendant): James D. Bramer, Windsor, Colorado.

Date of Decision: July 6, 2011

Facts: Appellant filed a lawsuit against Appellee for injuries stemming from an automobile wreck. Appellee filed his answer to the complaint but passed away later the same year. Despite Appellee’s death, the parties’ counsel continued to negotiate a settlement. Appellee’s counsel made a Rule 68 offer of settlement of $36,000.00 to Appellant. Appellee’s counsel also filed a motion to dismiss, which alleged a failure to substitute party pursuant to W.R.C.P. 25(a)(i).

In response, Appellant filed a new civil action, this time against Appellee’s estate, but based upon the same accident. On the same date, Appellant also filed her Plaintiff’s Notice of Acceptance Pursuant to Rule 68, with language attempting to reserve the right to litigate the “estate case.” Appellee’s counsel filed the acceptance along with the offer of settlement.

Subsequently, the district court held a hearing on the motion to dismiss, and then entered an Order of Dismissal. As part of the Order of Dismissal, the court ruled that appellant’s acceptance was invalid, observing that one cannot agree to a full settlement and at the same time reserve the right to litigate issues that were “settled.” Appellant challenged the district court’s Order of Dismissal and argued that the court erred in refusing to enter judgment upon her acceptance of a W.R.C.P. 68 offer of settlement,

Issues: 1) Whether the lower court committed plain error in failing to enter Judgment against Appellee pursuant to a W.R.C.P. 68 Offer of Settlement and Acceptance of Offer of Settlement.

Holdings: The purpose of Rule 68 is to encourage settlement. Rule 68 accomplishes its objective of encouraging settlement by providing an expeditious process that forces the parties to weigh the costs and benefits of further litigation. Appellant argued that her formal written acceptance of Appellee’s Rule 68 Offer of Settlement was an unmodified mirror of the offer, but the Court disagreed. The Court found that the modifications changed the original offer, which was in direct opposition to the language of the rule. The Court observed that the district court recognized the legal requirement that a Rule 68 acceptance must mirror the offer.

The Court concluded that because Appellant’s acceptance was not unconditional, and that because it did not mirror the offer of settlement, she did not validly accept the Rule 68 offer of settlement. Furthermore, the court found the dismissal without prejudice was proper. The district court’s order was affirmed.

J. Hill delivered the opinion for the court.

2011 WY 9

Summary of Decision January 21, 2011

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

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

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

Citation: 2011 WY 9

Docket Number: S-10-0104

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

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

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

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

Date of Decision: January 21, 2011

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

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

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

Justice Voigt delivered the opinion for the court.

Summary 2010 WY 92

Summary of Decision issued June 29, 2010

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

Case Name: Western Municipal Construction of Wyo., Inc. v. Better Living, LLC

Citation: 2010 WY 92

Docket Number: S-09-0116

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

Representing Western Municipal Construction: Raymond W. Martin and Kristin M. Nuss of Sundahl, Powers, Kapp & Martin, LLC, Cheyenne, Wyoming.

Representing Better Living, LLC.: Anthony Todd Wendtland of Wendtland & Wendtland, Sheridan, Wyoming.

Facts/Discussion: Western Municipal Construction (Western) challenged the district court’s order granting summary judgment in favor of Better Living, LLC.
The appeal arose out of the dismissal of a complaint for declaratory judgment which sought to declare the parties’ rights under a settlement agreement resulting from a mediated dispute concerning a construction contract. A dispute arose concerning two items: the amount of liquidated damages, for which Better Living had assessed a $345,000 deduction against the $1.4M contract price and the amount due under a “Force Account” bid item.
The Court concluded that the language of the settlement agreement was unambiguous and the language of the underlying “Standard Conditions of the Construction Contract” need not, and should not be consulted in construing the language of the settlement agreement. The Court will not look behind a settlement agreement to see who would have prevailed in a dispute out of which the settlement agreement arose. If the settlement agreement itself meets contractual requirements, it will be enforced.

Conclusion: The Court concluded that the district court erred in failing to order Better Living to comply with the settlement agreement. The Court was not persuaded by Better Livings’ contentions that by cooperating in executing the closeout documents Western thereby waived its entitlement to the $250,000 settlement amount or that it thereby ratified Better Livings’ efforts to unilaterally modify the settlement agreement. Western was entitled to a payment in the amount of $250,000. If there are other disputes Better Living saw in this case, it was the one burdened with filing a claim, which it did not do. The district court’s order was reversed and the matter remanded. Western was also entitled to the fees and costs due it under W.R.A.P. 10.04.

Reversed and remanded.

J. Hill delivered the decision.

Link: http://tinyurl.com/2u5xt73 .

[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 65

Summary of Decision issued May 24, 2010

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

Case Name: Simek v. Tate

Citation: 2010 WY 65

Docket Number: S-09-0177

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

Representing Simek: Andrea L. Richard of the Richard Law Firm, PC, Jackson, Wyoming.

Representing Tate: Larry B. Jones, William L. Simpson, and Chris D. Edwards of Simpson, Kepler & Edwards, LLC, the Cody, Wyoming division of Burg Simpson Eldredge Hersh & Jardine, PC.

Facts/Discussion: This was an appeal from a district court order enforcing an oral settlement agreement requiring Simek to purchase certain real property from Tate (the Estate). There were two agreements: one from 2003 that was written and required the approval from the Illinois Probate Court and one from 2005 that was an oral settlement.

Simek’s motion for hearing: The Court affirmed the district court on the issue of the telephonic hearing because the numerous hearings provided the parties with ample opportunity to present evidence; the record revealed no reasons Simek, his witness, and attorney could not appear in person at the hearing; the parties consented; Simek showed no prejudice; the newly assigned district judge reviewed all the evidence that had been presented at all the hearings; and Yaekle v. Andrews stands for the proposition that a hearing is required if the terms or existence of a settlement agreement are in dispute not that a telephonic hearing is insufficient under such circumstances.
Simek’s motion to enforce earlier settlement agreement: The 2003 Agreement did not receive the required approval of the Illinois Probate Court. It therefore became void. The fact that some terms of the two agreements were inconsistent with one another was legally meaningless and had nothing to do with the question of whether the parties reached an oral settlement in 2005 or with the question of whether the 2005 Agreement should have been enforced. (There was extensive e-mail discussion between the attorneys regarding which agreement was in force.)
Estate’s motion to enforce settlement agreement despite statute of frauds: The district court concluded that the 2005 Agreement existed and that it was saved from the statute of frauds as a result of the doctrine of partial performance. The Court looked at the relations of the parties; the nature of the parol agreement; and the relative benefit and detriment derived by the parties. The district court concluded that the parties intended for their agreement to be effective upon its oral consummation. The issue became whether the Estate’s acts in partial performance of the 2005 Agreement were sufficient to estop Simek from asserting the statute of frauds as a defense, especially when coupled with Simek’s failure to disclaim the agreement in the face of that conduct. The Estate acted to its detriment in reliance upon the agreement by relinquishing possession of the property to Simek for several months, by allowing repeated access, and by informing the court that the civil action had been settled. Under the circumstances of the instant case, the court stated the acts of partial performance were sufficient to invoke equity to enforce the oral agreement.

Conclusion: The district court did not err in holding the final evidentiary hearing with one party and its witnesses appearing in person and the other party and its witnesses appearing by telephone. The district court also did not err in denying Simek’s motion to enforce the 2003 Agreement, which agreement was void due to its rejection by the Illinois Probate Court. Finally, the district court did not err in enforcing the parties’ oral 2005 Agreement inasmuch as the equitable doctrine of partial performance took the agreement out from the statute of frauds.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/278zupe .

[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 2009 WY 141

Summary of Decision issued November 17, 2009

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

Case Name: Asherman v. Asherman

Citation: 2009 WY 141

Docket Number: S-09-0050

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

Representing Appellant Richard Asherman: Michael A. LaBazzo of Law Offices of Michael A. LaBazzo, LLC, Cody, Wyoming.

Representing Appellee Robin Asherman: Jill Deann LaRance of LaRance & Syth, PC, Billings, Montana.

Facts/Discussion: In 2007, the district court entered a divorce decree, incorporating the parties’ Child Custody and Property Settlement Agreement. Later, Wife filed a motion asking the court to have funds from the sale of a property disbursed in accordance with the agreement. Specifically, she stated that three debts, including the remaining balance on a $155,000 debt on her residence, were to be paid from the proceeds of the sale, after which any remaining funds were to be split equally between the parties.
Several provisions of the settlement agreement address payment of the debt resulting from the purchase of the Alpine Avenue property. The provisions clearly established that the debt was to be paid out of the proceeds from the sale of the Logan Mountain property before the remainder was split equally between the parties. Husband argued that the settlement agreement was ambiguous concerning how the Alpine Avenue debt was to be paid and that the overall intent was to divide the parties’ assets according to their origin and the relative contributions of the parties. The Court has recognized that when the parties execute a detailed property agreement, it will enforce the plain language of the agreement even if argument can be made that a particular provision was not necessarily consistent with one of the parties’ interests. The Court concluded as it did in Brockway and Wunsch that the plain language of the agreement controlled. The settlement agreement was very detailed, addressing the parties’ assets and liabilities separately and with obvious care.
Husband also argued that there was an agreement to have Wife immediately reimburse Husband for all payments that he paid on the debt including principal and interest which meant that he could have paid off the loan prior to the closing of the Logan Mountain property sale and then required Wife to pay the entire amount out of her share. The Court agreed but noted it was simply a second procedure set out in the agreement. Although the two provisions might seem inconsistent, it did not render the agreement ambiguous. The provisions were not mutually exclusive. Wife reimbursed Husband out of her share of the sale proceeds for payments he had made on the Alpine Avenue debt prior to the Logan Mountain property sale.

Conclusion: The settlement agreement clearly stated that the outstanding balance on the $155,000 debt resulting from the purchase of Wife’s Alpine Avenue property would be paid out of the joint proceeds of the sale of the Logan Mountain property.

Affirmed.

J. Kite delivered the decision.

Link: Please visit the Judiciary website to see the full context of the opinion.

[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 of Decision issued September 11, 2009

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

Case Name: Lamar Outdoor Advertising v. Farmers Co-Op Oil Co. of Sheridan, WY

Citation: 2009 WY 112

Docket Number: S-08-0131

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

Representing Appellant Lamar: Timothy M. Stubson of Brown, Drew & Massey, LLP, Casper, Wyoming.

Representing Appellee Farmers: Clint A. Langer of Davis & Cannon, LLP, Sheridan, Wyoming.

Representing Appellee Maverick Country Stores: Steven T. Waterman of Ray Quinney & Nebeker PC, Salt Lake City, Utah.

Facts/Discussion: During litigation among the parties concerning Lamar’s claim that other parties had not honored Lamar’s lease-based right of first refusal that provided Lamar the opportunity to purchase certain property upon which Lamar maintained an advertising sign, the parties executed a settlement agreement. Lamar appealed the district court’s summary judgment order that under the terms of the parties’ unambiguous settlement agreement Sheridan failed to act on Lamar’s variance application within eight weeks from the date the variance application was submitted and consequently, the parties remained bound by the terms of their settlement agreement.
Farmers and Maverik argued that Lamar submitted its variance application on August 2, 2006 which started the eight week clock as provided in the parties’ settlement agreement. The parties agree that Sheridan acted on Lamar’s application when it denied it on October 12, 2006. The eight week clock expired on October 2, 2006. Consequently, under the language of the parties’ agreement, the settlement agreement became fully binding.
Lamar relied upon the Mentock affidavit attached to its response. The Court determined the affidavit was insufficient. The affiant’s statement that he was “familiar with the matters set forth herein and they are true to the best of his knowledge, information and belief” did not meet the “personal knowledge” requirement. In addition, the applications for the variation and the required letter of notification to property owners were not attached to the affidavit.

Conclusion: The Court held that Farmers’ and Maverik’s argument prevailed and that Lamar’s argument had no evidentiary support.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/nyow52 .

[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 2006 WY 161

Summary of Decision issued December 28, 2006

[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: Morrison, Smith & Hansen v. Clay & Clay

Citation: 2006 WY 161

Docket Number: 05-281 & 06-21

Appeal from the District Court of Natrona County, the Honorable W. Thomas Sullins, Judge

Representing Appellants (Plaintiffs): Judith Studer and Rick L. Koehmstedt of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming..

Representing Appellees (Defendants/Counterclaimants): Patrick Murphy of Williams, Porter, Day & Neville, P.C., Casper, Wyoming.

Issue: The Trust identified these issues for review: (1) Whether an unsigned arbitration award that violated Wyoming Statutes and the parties’ agreement be vacated. (2) Whether clear violations of the code of ethics governing the arbitration [constitute] “undue means” and/or “misconduct” that requires the arbitration award be vacated. (A) Whether the court applied an incorrect standard by requiring the plaintiffs show actual prejudice by clear and convincing evidence. (B) Whether the court abused its discretion in not allowing Professor Burman to opine the arbitrator’s failure to make the necessary disclosures as a violation of the code of ethics. (3) Whether the arbitrators exceeded their authority. And, if so, did such action require the award be vacated. (A) Whether the failure to conduct the arbitration in accordance with the American arbitration Association Rules, as agreed to by the parties, constituted a basis to vacate the award. (B) Whether the use of minority and marketing discounts to determine value of the stock, in violation of the stock purchase agreement, exceed the authority of the arbitrators, and therefore require the court to vacate the award. (4) Whether the court improperly awarded attorney fees. (A) Whether the limited provision in the settlement agreement that allowed for recovery of attorney fees applies. (B) Whether defendants’ failure to identify and segregate attorney fees and costs prohibited an award of fees.

Two issues from the Clays which the Court deemed pertinent to the resolution: (1) Whether the appeal was moot because Appellants failed to challenge the district court’s determination that they had contractually waived their right to appeal the arbitration award. (2) Whether, if the appeal is moot, Appellants’ waiver of any right to appeal the arbitration award nonetheless requires summary affirmation of the district court’s order.

Holding: Morrison, Smith and Hansen, in their representative capacities as Trustees of the Newell B. Sargent 1990 Living Trust, appealed a district court order confirming an arbitration award. The district court affirmed the award on its merits and ruled that the parties had agreed that the arbitration award would be final and binding. The court also determined that the parties had waived the right to challenge the selection and identity of the arbitrators and the arbitration process. On appeal, the Trust did not challenge those rulings. Because those rulings are dispositive, the issues raised concerning the arbitration award are moot. The Trust also appeals from the district court’s order granting attorneys’ fees to Appellees, the Clays. Finding no abuse of discretion, the Court affirmed the award of attorneys’ fees.

No. 05-281 Arbitration Award: The Court reviewed the Findings of Fact, Conclusions of Law, and Judgment from the district court and highlighted the language which made clear the parties agreed to conduct a final binding arbitration. The parties expressly waived and released any challenge to the enforceability of any arbitrators’ award or decision based on the arbitrator selection process or the identity of the arbitrators, or the submission of the matters to arbitration under the Stock Purchase Agreement. Further, any dispute arising out of or relating in any way to the Agreement would be resolved by a majority of the arbitrators agreed to in the Agreement through final, binding and non-appealable arbitration in accordance with the arbitration rules. The parties agreed the arbitration agreements were fully enforceable and binding, and that in the event of a dispute, all issues relating to the procedures for the arbitration, discovery, and management of the arbitration process would be resolved by the arbitrators. The Trust challenged the district court’s decision confirming the arbitration award. However, the Trust did not dispute the district court’s findings that the Trust breached the settlement agreement by refusing to comply with the provision providing that the decision before the arbitrators would be final and binding on all parties. Nor did the Trust contest the district court’s finding that it had waived the right to seek judicial review of the identity of and selection of the arbitrators or the arbitration process. Citing Ultra Resources, Inc. v. McMurry Energy Co., the Court agreed. The Court held that presenting the argument in a reply brief was not equivalent to framing the issues in an opening brief. In the instant case, the Trust failed to challenge dispositive rulings of the district court. As a result, all issues presented by the Trust concerning the arbitration award were moot and the appeal was dismissed.

No. 06-21 Attorney Fees: The Court reviews a district court’s decision awarding attorneys’ fees under an abuse of discretion standard. The Trust bore the burden of establishing that the trial court abused its discretion. The Trust reasoned that because the district court action was not arbitration, the agreement did not authorize an award of attorney fees. The Court rejected that reasoning because the obvious intent of the Settlement Agreement was to foreclose future litigation between the parties and to award attorney fees to the prevailing party in any dispute involving the Settlement Agreement. The Court reviewed the evidence provided by the Clays in segregating attorneys’ fees and establishing the reasonableness of those fees and determined the district court had ample evidence with which to make their decision.

Affirmed.

J. Burke delivered the decisions.

Link: http://tinyurl.com/yys5an .