Cordova v. Gosar

Decision Date20 May 1986
Docket NumberNo. 85-271,85-271
Citation719 P.2d 625
PartiesElmer CORDOVA and Dorothy Cordova, husband and wife, Appellants (Defendants), v. Antonia GOSAR, Appellee (Plaintiff).
CourtWyoming Supreme Court

Robert A. Magee, Cheyenne, for appellants.

John W. James of James & James, Rock Springs, for appellee.


URBIGKIT, Justice.

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:

"17. Any claims of the said Defendants, and each of them, are without right whatever, that the said Defendants have no right, title, claim, lien, estate, interest or equity whatever in, to or upon said real property and premises or any part thereof, which property is described in Paragraph 3 hereof, namely the said Lot 13, Block 2, of the Pilot Butte Addition to the City of Rock Springs, Sweetwater County, Wyoming.

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"19. For a continuous period of more than ten years last past, Plaintiff and her predecessors in title have, under claim of ownership, been in open, notorious, exclusive, hostile, adverse, lawful, peaceable and actual possession of, and have owned in fee simple, all of the above described real property and premises described in Paragraph 3 above, during all of which time they have asserted such ownership against the above named and mentioned Defendants, and against all the world.

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"21. In signing Exhibits 'C' and 'D', which are attached hereto, being the sales agreement and the warranty deed, respectively, it was not the intent of either the seller in that contract, the Plaintiff herein, nor the intent of the buyers in that contract, the Defendants herein, to sell and transfer to the Defendants the above described real property and premises more particularly described in Paragraph 3 above."

Jere Ryckman, a practicing attorney in Green River, stated by affidavit as to the Tisdel property:

"2. That during the latter part of August, 1984, or the beginning of September, 1984, Dorothy Cordova sought legal advice from affiant in connection with a sales agreement dated June 1, 1973, between Dorothy Cordova and her husband Elmer Cordova, as buyers, and Antonia Gosar, as seller.

"3. At the time Dorothy Cordova spoke with affiant regarding said sales contract for real property, she indicated her concern to be that Robert L. Bath would some how attempt to retake the property she had purchased under the contract, located at 810 Pilot Butte Avenue, which was her residence and which is more particularly described as follows:


"and that a second parcel of property had been mistakenly included in the said contract of sale and deed.

"4. Dorothy Cordova was further concerned that she would be assessed real property taxes by the County of Sweetwater for two parcels of property located in Rock Springs, Wyoming, when she only owned one, which was her residence above mentioned, located at 810 Pilot Butte Avenue.

"5. In order to protect her residence and to negate the possibility of paying taxes on property she did not own, which from my information seemed to be Antonia Gosar's home located at 417 Tisdel, Rock Springs, Wyoming, Dorothy Cordova authorized me to contact attorney John James, who she thought was representing Antonia Gosar, and advise Mr. James of the above circumstances set forth in Paragraphs 2, 3 and 4, and take whatever steps were necessary in order to clear up the mistake in the above mentioned contract and the deed prepared pursuant thereto so that Dorothy Cordova's home would be protected and Mrs. Gosar's property would again be in her name alone. It was my understanding from speaking with Dorothy Cordova that the contract mistakenly included Mrs. Gosar's home located at 417 Tisdel and so did the deed. Dorothy Cordova authorized me to advise Mr. James that she and her husband, Elmer Cordova, would sign a deed conveying Mrs. Gosar's home, located at 417 Tisdel, back to her, which property is more specifically described as:


"in order to remedy the mistaken inclusion of this property in the said contract of sale and deed of June 1, 1973.

"6. Pursuant to the authorization of Dorothy Cordova to contact John James and advise him of the above, affiant contacted John James a couple of days prior to September 18, 1984, by telephone and advised him of the above. Pursuant thereto Mr. James prepared the deed conveying the property at 417 Tisdel from Dorothy Cordova and Elmer Cordova to Antonia Gosar, along with a transmittal letter dated 9/18/84, which is attached hereto and made part hereof as Exhibit 'A.' Upon receiving the deed attached as Exhibit 'A,' affiant advised Dorothy Cordova of such receipt and advised that it was ready to be executed by her and her husband, Elmer Cordova. After receiving this information, Dorothy and Elmer Cordova refused to execute said deed, and obtained other legal counsel in regard to this matter."

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.

"5. That during that period, Antonia Gosar said she would sell both residences to him 'cheap' because she said she 'wanted to go back to the old country.'

"6. That Antonia Gosar, prior to the sale, said she wanted to stay in the residence at 417 Tisdale [sic] until she went 'back to the old country' and would pay the taxes and insurance on that residence until then.

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"10. That several months after the agreement was signed, Antonia Gosar remarked to Affiant that he might remodel the...

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