Braunstein v. Robinson Family Ltd. P'ship Llp

• Decision Date: 08 March 2010
• Docket Number: No. S-08-0115.,S-08-0115.
• Citation: 2010 WY 26,226 P.3d 826
• Parties: Elsie L. BRAUNSTEIN, Appellant (Defendant),v.ROBINSON FAMILY LIMITED PARTNERSHIP LLP, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

226 P.3d 826

2010 WY 26

Elsie L. BRAUNSTEIN, Appellant (Defendant),v.ROBINSON FAMILY LIMITED PARTNERSHIP LLP, Appellee (Plaintiff).

No. S-08-0115.

Supreme Court of Wyoming.

March 8, 2010.

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Representing Appellant: Paul J. Drew and Anita Ann Czapeczka of Drew Law Office, P.C., Gillette, Wyoming.

Representing Appellee: Max Main of Bennett, Main & Gubbrud, P.C., Belle Fourche, South Dakota.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, BURKE, JJ.

GOLDEN, Justice.

[¶ 1] Since the earliest days of settlement and statehood, complaints and claims of adverse possession have occupied much of the time of the courts of Wyoming. Once again we are requested to grapple within that arena....

Snell v. Ruppert, 582 P.2d 916, 917 (Wyo.1978).

[¶ 2] Today, we consider the appeal of Elsie L. Braunstein (Braunstein), record owner of several parcels of land totaling 615.8 acres adjacent to ranch lands owned by the Robinson Family Limited Partnership LLP (Robinson) near Moorcroft, Crook County, Wyoming. Braunstein appeals the district court's order granting summary judgment to Robinson on its adverse possession complaint seeking title to Braunstein's several parcels of land.

[¶ 3] Because we find that most of the evidentiary materials submitted by Robinson in support of its summary judgment motion are legally insufficient under the requirements of W.R.C.P. 56 and our summary judgment case law, and fail to show the absence of genuine issues of material fact associated with the elements of the claim of adverse possession, and because issues in this case raise important questions about the application of Wyoming's “fence-out” doctrine in the context of an adverse possession claim, which questions require substantial factual development before they can be addressed, we reverse the district court's order granting summary judgment and remand for further proceedings consistent with this opinion.

ISSUE

[¶ 4] The dispositive issue in this case is whether Robinson properly supported its motion for summary judgment as required by W.R.C.P. 56 and our summary judgment case law.

BACKGROUND FACTS

[¶ 5] The principal allegations of Robinson's complaint seeking quiet title by adverse possession identified the property in question as the E 1/2 SW 1/4 of Section 2, the NW 1/4 of Section 11, and the E 1/2 NE 1/4 and S 1/2 (less State Highway of 24.2 acres) of Section 14, Township 49 North, Range 67 West, 6th P.M., Crook County, Wyoming, and averred:

4.

Plaintiff and its predecessors in interest have had hostile, actual, open, notorious, exclusive, and continuous possession of the property under a claim of right for more than ten (10) years last past. During all of such time, plaintiff and its predecessors have enclosed the property with fence and have grazed their livestock on the property.

5.

Defendants claim an estate or interest in the property adverse to plaintiff. Defendants' claim is without any right whatever, and defendants have no estate, right, title, or interest in or to the property, or any part of the property.

[¶ 6] Braunstein filed her answer which admitted she claimed an estate or interest in the property adverse to Robinson and which denied each and every other allegation in the complaint. In her answer she also pleaded a counterclaim alleging she was the owner and entitled to possession of the property in question. Robinson filed its reply to that counterclaim denying those allegations, alleging the ten-year statutory bar under Wyo. Stat. Ann. § 1-3-103, and alleging estoppels, laches, and waivers.

[¶ 7] With the issues thus joined by the pleadings, the parties engaged in discovery. Without addressing at this point in the opinion either the substantive sufficiency or admissibility of the evidence developed in that discovery, we can say that the parties generally agree for background purposes that Braunstein is the record owner of and has paid the property taxes assessed against the property and Robinson claims satisfaction of the several elements of adverse possession with respect to that property.

[¶ 8] On May 18, 2006, Braunstein filed her motion for summary judgment with accompanying evidentiary materials. Robinson opposed that motion. On October 19, 2006, the district court filed its decision letter in which it announced that Braunstein “has failed to demonstrate that there are no material issues of fact and that [she] is due judgment as a matter of law. Accordingly, each party's motion for summary judgment is denied.” The district court's order was filed on November 15, 2006.

[¶ 9] On December 3, 2007, Robinson filed its motion for summary judgment with accompanying evidentiary materials. Those evidentiary materials were:

1. Alden C. Robinson's June 23, 2006, affidavit.

2. Justen T. Robinson's June 23, 2006, affidavit.

3. Justen T. Robinson's Second Affidavit dated November 13, 2007.

4. Donald D. Zacher's October 24, 2007, affidavit.

5. June 9, 1976, Quitclaim Deed conveying the property to Melvin A. Braunstein and Elsie L. Braunstein.

6. Defendant Elsie L. Braunstein's Answers to Plaintiff's First Interrogatories.

7. The Robinson conveyances of the family ranch lands surrounding the property.

8. Elsie L. Braunstein's deposition.

[¶ 10] On May 21, 2008, the district court filed its order granting summary judgment in Robinson's favor, which order incorporated by reference the district court's decision letter which had been filed on April 9, 2008. This appeal followed.

STANDARD OF REVIEW

[¶ 11] As noted above, Braunstein filed a motion for summary judgment which the district court denied, and more than six months later Robinson filed its motion for summary judgment. In the district court's decision letter announcing its grant of Robinson's motion, it stated:

Preliminarily, the court notes that the issues presented in the motion are not wholly distinct from those addressed in the first motion for summary judgment filed by [Braunstein]. However, the court has determined to treat the current motion in the vein of a cross-motion to that of [Braunstein]. Certain details and facts have been expanded upon and clarified. The court will, therefore, re-evaluate both motions based on the evidence presented by each party to date.

In State v. Homar, 798 P.2d 824 (Wyo.1990), this Court was faced with a similar situation where all of the parties had filed motions for summary judgment but the district court had granted only one of them. Id. at 825. Stating that we were reviewing only the propriety of the district court's granting the Homars' motion for summary judgment, we explained:

The fact that all parties filed motions for summary judgment does not require the trial court to grant any of the motions and preclude the need for a trial. 10A Wright, Miller & Kane Federal Practice and Procedure: Civil 2d § 2720, pp. 16-25 (1983). Second, the denial of a summary judgment motion is not reviewable as it is not a final order. Kimbley v. City of Green River, 663 P.2d 871, 888 (Wyo.1983); see W.R.A.P. 1.04 and 1.05. Thus, our review of a grant of a summary judgment motion is the same whether the review is of a grant of the first motion filed or of a cross-motion. See, e.g., Stratman v. Admiral Beverage Corp., 760 P.2d 974 (Wyo.1988).

The propriety of the court's granting the Homars' motion for summary judgment is reviewed in this appeal.

Homar, 798 P.2d at 825-26.

[¶ 12] In the appeal before us now, we make it clear that we are reviewing only the propriety of the district court's granting Robinson's motion for summary judgment.

[¶ 13] All courts and practicing attorneys in this state know that summary judgment procedure is governed by Rule 56 of the Wyoming Rules of Civil Procedure. This Court's cases are legion in which we discuss and explain the application of the important legal principles contained in that rule to all manner of claims litigated in our courts. In the case before us, Robinson is the party seeking to recover on its adverse possession claim and, under Rule 56(a), it has moved with supporting affidavits, a deposition, answers to interrogatories, and other material for a summary judgment in its favor upon that claim. As Rule 56(c) provides, “[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories ... together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Because Robinson has supported its motion with affidavits, Rule 56(e) becomes applicable. That provision requires that supporting affidavits “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” We require that “[t]he material presented to the trial court as a basis for a summary judgment should be as carefully tailored and professionally correct as any evidence which is admissible to the court at the time of trial.” Newton v. Misner, 423 P.2d 648, 650 (Wyo.1967); see also White v. Woods, 2009 WY 29A, ¶ 18, 208 P.3d 597, 602 (Wyo.2009).

[¶ 14] In many cases we have found summary judgment material that failed this requirement. See, e.g., Bangs v. Schroth, 2009 WY 20, 201 P.3d 442 (Wyo.2009) (affidavit insufficient for failing to state specific facts, for stating only categorical assertions of ultimate facts without specific supporting facts, and for failing to attach sworn or certified copies of papers referred to in affidavit); Greenwood v. Wierdsma, 741 P.2d 1079 (Wyo.1987) (same); Western Surety Co. v. Town of Evansville, 675 P.2d 258 (Wyo.1984) (affidavit containing significant opinions and conclusions that may be critical in the outcome of the case must reveal the underlying...