Cordova v. Gosar
Decision Date | 20 May 1986 |
Docket Number | No. 85-271,85-271 |
Citation | 719 P.2d 625 |
Parties | Elmer CORDOVA and Dorothy Cordova, husband and wife, Appellants (Defendants), v. Antonia GOSAR, Appellee (Plaintiff). |
Court | Wyoming Supreme Court |
Robert A. Magee, Cheyenne, for appellants.
John W. James of James & James, Rock Springs, for appellee.
Before THOMAS, C.J., and BROWN, CARDINE, URBIGKIT and MACY, JJ.
By summary judgment the trial court, for contended mutual mistake, invalidated a 12-year-old deed description which would terminate the interest of an 80-year-old widow in her home after the grantee served a notice to quit. Grantee, unsuccessful in the trial court, appeals and is now again denied by this court's affirmance.
In June, 1973, Antonia Gosar, as seller, entered into a sales agreement with Elmer Cordova and Dorothy Cordova for the sale of real estate in Rock Springs, Wyoming. Described in the agreement was Lot 13, Block 2, Pilot Butte Addition (417 Tisdel), City of Rock Springs, and by separate paragraph a portion of Block 7 (810 Pilot Butte Avenue) of the same subdivision. The payment price was $12,000, payable after down payment on monthly installments to an escrow agent which also held a document escrow including the unrecorded executed deed. The payment schedule carried a time period of approximately ten years. At the expiration of that period, 1983, the escrow was closed and legal documents were delivered to the buyer, who then recorded the deed which documented the conveyance of two separate parcels of land and two noncontiguous houses.
Cordova occupied one parcel after initial purchase, and Gosar continued to occupy her home on the other parcel, without notable event until October, 1984, when a notice to quit was served on Gosar by Cordova for failure "to pay rent since November 7, 1983, when we became legal owners," which apparently is the day that the escrow payments were completed and the deed was delivered to the buyer by the escrow holder.
Gosar, of Yugoslavic extraction, was aged 80 years, and had lived 54 years continuously on the Tisdel Street property. She first came to know that the original sales documents included both properties, one of which was her home, by receipt of the notice to quit, as she had continued to pay taxes and provide insurance for the property to current time.
Reacting to the notice to quit, Mrs. Gosar filed suit, claiming adverse possession, mutual mistake of fact and failure of consideration, and requested a temporary restraining order and injunction to retain possession during the litigation. Cordova answered in essence by general denial, and did not include any affirmative defenses or counterclaim in the pleading. A temporary restraining order and interim injunction was granted by the trial judge.
The simplistic resolution of this appeal which could have been afforded after a trial is denied by the district court's grant of summary judgment; consequently more detailed factual and pleading review is mandated.
Following entry of the temporary restraining order, counsel for Cordova, on October 29, 1984, moved for change of judge, which motion was denied by order entered October 30, 1984. Rule 40.1(b), W.R.C.P., the Wyoming peremptory judicial disqualification rule affording disqualification opportunity as of right, had been eliminated in 1982, and then reinstituted effective October 31, 1984, one day after the denial order was entered.
A request for admission was served by Gosar and answered by Cordova, with the parties pursuing other discovery. The case then came, in July, 1985, from filing date of October, 1984, to a motion for summary judgment by Gosar. It is from the affidavits spawned by that motion that this resolution is now required.
Gosar averred ownership, tax payment, fire insurance coverage, execution of the 1973 agreement, continuous possession, and:
Jere Ryckman, a practicing attorney in Green River, stated by affidavit as to the Tisdel property:
Robert L. Bath, the drafting attorney for the original agreement related in his affidavit the sales events, and stated that it was not intended to include both homes, that the purchase price was insufficient for both, and that inclusion of the Gosar house in the description was a mistake.
Further included in support of the motion for summary judgment was an affidavit of the deputy assessor of the county, involving a telephone call with Mrs. Cordova discussing the description mistake and the erroneous inclusion of two parcels instead of only the one which had been occupied by purchaser. Gosar filed an extensive brief in support of the motion for summary judgment. Cordova filed a brief in opposition, contending that the issues of fact should render summary judgment inappropriate. Attached to the brief were affidavits of Elmer Cordova and Dorothy Cordova.
Elmer Cordova, by responsive affidavit, denied facts stated by Gosar, Bath and Ryckman, stated that both properties were properly included, and "4. That in fact, for many months before June, 1973, Antonia Gosar had offered to sell the residences at 417 Tisdel and 810 Pilot Butte to me.
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