Befumo v. Johnson

• Decision Date: 13 September 2005
• Docket Number: No. 04-202.,No. 04-203.,04-202.,04-203.
• Parties: Paul BEFUMO, Appellant (Defendant), v. Craig A. JOHNSON; Beverly Tourville; Robert Wilkoske Trust; Nona Wilkoske Trust, Mitchell E. Osborn, Trustee, Appellees (Plaintiffs). Clamp Holdings, Inc., Appellant (Defendant), v. Craig Johnson; Beverly Tourville; Robert Wilkoske Trust; Nona Wilkoske Trust, Mitchell E. Osborn, Trustee, Appellees (Plaintiffs), and David Trefren Trust, Appellee (Defendant/Third Party Plaintiff).
• Court: Wyoming Supreme Court

119 P.3d 936

2005 WY 114

Paul BEFUMO, Appellant (Defendant), v. Craig A. JOHNSON; Beverly Tourville; Robert Wilkoske Trust; Nona Wilkoske Trust, Mitchell E. Osborn, Trustee, Appellees (Plaintiffs).

Clamp Holdings, Inc., Appellant (Defendant), v. Craig Johnson; Beverly Tourville; Robert Wilkoske Trust; Nona Wilkoske Trust, Mitchell E. Osborn, Trustee, Appellees (Plaintiffs), and David Trefren Trust, Appellee (Defendant/Third Party Plaintiff).

No. 04-202.

No. 04-203.

Supreme Court of Wyoming.

September 13, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Representing Appellant Befumo: Pro se.

Representing Appellees: Johnson, Tourville, Wilkoske Trusts and Mitchell E. Osborn: Mitchell E. Osborn of Grant & Osborn, Cheyenne, Wyoming.

Representing Appellant Clamp Holdings, Inc.: C.M. Aron of Aron & Hennig, LLP, Laramie, Wyoming.

Representing Appellee David Trefren Trust: Don W. Riske of Riske & Arnold, P.C., Cheyenne, Wyoming.

Before HILL, C.J., and GOLDEN, KITE, VOIGT, JJ., and YOUNG, D.J.

KITE, Justice.

[¶ 1] Craig Johnson and Beverly Tourville were beneficiaries under the Robert Wilkoske and Nona Wilkoske trusts (the original trusts). First Estate Management Corp. (FEMCO) was the trustee. FEMCO's vice-president, Paul Befumo, created the RW & NW Trust (new trust), named himself trustee, and transferred the trust property to the new trust. The new trust then sold the trust assets, two parcels of real estate, to Clamp Holdings, Inc., (Clamp). Clamp in turn sold one of the parcels to the David Trefren Trust (Trefren).

[¶ 2] Mr. Johnson, Ms. Tourville and the original trusts sought to have the sale of the trust property to Clamp set aside.¹ Following a bench trial, the trial court entered an order quieting title in Trefren's name to the parcel of trust property it purchased from Clamp and awarding Trefren damages for property removed from the parcel. The trial court quieted title in the name of the original trusts to the second parcel of trust property still held by Clamp. The trial court also granted judgment in favor of the original trusts and against Mr. Befumo in the amount of $35,000 (the amount he collected in attorney's fees from the trusts although he was not a licensed attorney) and Clamp for $170,420.32 (the amount it received in payment for the parcel of trust property it sold to Trefren).

[¶ 3] Clamp appealed, claiming the trial court abused its discretion in reopening the evidence after the original trusts failed to carry their burden, erred in finding Clamp was not a bona fide purchaser of one of the parcels and erred in rescinding the sale without also ordering restitution of the amount Clamp paid for the property. Mr. Befumo, appearing pro se, also appealed claiming the trial court deprived him of his right to a fair trial and erred in allowing the claims against him to go forward and awarding damages against him. We affirm.

ISSUES

[¶ 4] Mr. Befumo presents the following issues for our consideration:

ISSUE 1: Did the district court err in failing to dismiss Plaintiff's claim against Defendant Befumo based on principles of res judicata, or, alternatively, collateral estoppel?

ISSUE 2: Did the district court deprive Defendant Befumo of his right to a fair trial by:

a) Conducting trial without allowing Mr. Befumo time to answer the complaint, in violation of Rule 12; and

b) Denying Mr. Befumo the opportunity to conduct any discovery whatsoever, in violation of Rules 26 through 33?

ISSUE 3: Did the district court err in awarding damages that were not requested in the complaint, and which were not supported by any evidence?

Clamp presents the following issues:

1. Was it an abuse of discretion to reopen the evidence, sua sponte, after finding a failure by plaintiffs to sustain the burden of proof?

2. Was it error to conclude that Clamp was not a bona fide purchaser on one of two parcels in the same transaction?

3. Was it error to order rescission of a real estate sale without return of the consideration paid for the purchase?

Mr. Johnson, et al. restate the issues as follows:

1. Did Appellants comply with the requirements of Rule 3.02 when they failed to make provisions for the entire transcript of the proceedings to be included in the record on review and not presenting a statement of the issues they intended to present in their respective notices of appeal?

2. Is Appellant Befumo barred by the doctrines of collateral estoppel and res judicata from asserting his claim that the District Court erred in denying him "his right to a fair trial"[?]

3. Did the district court err in awarding Plaintiff a judgment for damages against Defendant Befumo[?]

4. Did the court close the evidence prior to May 28, 2004 and, if so, was it an abuse of discretion to reopen the evidence, sua sponte, pursuant to W.R.C.P. Rule 59[?]

5. Was it error for the district court to conclude that Appellant Clamp was not a bona fide purchaser[?]

6. Was it error for the district court to order rescission of the real estate sale to appellant Clamp[?]

Trefren states the following issues:

1. Whether appellant seeks review by this Court of that judgment on crossclaim of defendant Trefren Trust.

2. Whether appellant seeks review by this court of the findings of fact, conclusions of law and order regarding Trefren Trust's bona fide purchaser defense and third party complaint.

FACTS

[¶ 5] This appeal involves some of the same parties and facts as Johnson v. Sikorski, 2004 WY 137, 100 P.3d 420 (Wyo.2004). Mr. Johnson and Ms. Tourville were beneficiaries of the original trusts. The trust property consisted of two parcels of real estate, referred to as the missile site and the salvage yard. Mr. Befumo, as vice president of FEMCO, created a new trust, named himself trustee and sold both parcels to Clamp. Clamp then sold the salvage yard to Trefren. After both parcels were sold, Mr. Johnson mortgaged the property purchased by Trefren.

[¶ 6] As reflected in Johnson, ¶ 10, in an order entered by the trial court and affirmed by this Court, all conveyances from the original trusts to the new trust were declared null and void and Mr. Befumo was relieved of his duties as trustee. The original trusts, their beneficiaries, and Mr. Osborn, the newly appointed trustee of the Robert Wilkoske Trust, then filed a complaint for declaratory judgment against FEMCO, Mr. Befumo, Trefren, Clamp and Jack Sikorski (Clamp's operations manager and vice president²) seeking to set aside the conveyances to Clamp, to quiet title to the trust property in the name of the original trusts and money damages. The original trusts and their beneficiaries also filed a motion for temporary restraining order seeking to prohibit the removal of assets from the trust property.

[¶ 7] Clamp, Mr. Sikorski and Trefren filed answers to the complaint. Trefren raised the affirmative defense that it was a bona fide purchaser for value of the parcel it purchased from Clamp. Trefren also filed a third party complaint³ and a counterclaim seeking to quiet title to the property in its name alone. Additionally, Trefren filed a cross-claim against Clamp and Mr. Sikorski for breach of warranty and breach of contract. Clamp then filed a counterclaim against Mr. Johnson alleging that he interfered with Clamp's negotiations, contract and prospective economic advantage and seeking compensatory and punitive damages. Clamp also filed a cross-claim against Trefren alleging conversion of property and seeking monetary damages.

[¶ 8] After a hearing on the original trusts' motion for temporary restraining order, the trial court entered an order on March 26, 2004, restraining the parties from removing or selling any property from the missile site pending a bench trial scheduled for May 10, 2004. Prior to trial, Mr. Befumo, who for reasons that do not appear in the record, was not served with the complaint until several months after it was filed, filed a pro se motion to dismiss the claims against him, claiming they were barred by res judicata and collateral estoppel.

[¶ 9] Following a hearing held prior to trial on May 10, 2004, the trial court denied Mr. Befumo's motion to dismiss. The case proceeded to trial and, the following day, the trial court entered findings of fact, conclusions of law and an order. The trial court found Trefren was a bona fide purchaser for value of the salvage yard and the original trust did not own the property at the time Mr. Johnson executed the mortgage. The trial court declared the mortgage void ab initio, quieted title to the salvage yard in Trefren and declined to set aside the conveyance from Clamp to Trefren. By separate order, the trial court dismissed the cross-claim against Mr. Sikorski, dismissed Trefren's breach of warranty claim against Clamp, and awarded Trefren judgment against Clamp in the amount of $12,868.25 for breach of contract. The trial court also entered an order setting the remaining matters for further evidentiary hearing on May 28, 2004.

[¶ 10] Prior to continuation of the hearing, the trial court entered an order dismissing all claims against Mr. Sikorski. Additional evidence on the remaining claims was presented on May 28, 2004. On June 15, 2004, the trial court entered judgment quieting title to the missile site in the name of the original trusts and awarding the original trusts $35,000 in attorney's fees from Mr. Befumo and $170,420.32 plus costs from Clamp.

DISCUSSION

1. Clamp's Claims

a. Reopening the Evidence

[¶ 11] Clamp claims the trial court abused its discretion in reopening the evidence sua sponte after finding the original trusts had not met their burden of proof at the May 10, 2004, trial. The limited portions of the record Clamp designated for our consideration on appeal suggest that, following the trial on May 10, 2004, the trial court made some rulings from the bench. The incomplete record submitted does not include the portions of the transcript containing the trial court's ruling....