Davis v. Davis

• Decision Date: 17 June 1993
• Docket Number: No. 92-167,92-167
• Citation: 855 P.2d 342
• Parties: Kenneth Wesley DAVIS, Appellant (Plaintiff), v. Virginia M. DAVIS; Russell A. Davis and Carol May Davis, husband and wife; and Ramsey E. Davis, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 342

855 P.2d 342

Kenneth Wesley DAVIS, Appellant (Plaintiff), v. Virginia M. DAVIS; Russell A. Davis and Carol May Davis, husband and wife; and Ramsey E. Davis, Appellees (Defendants).

No. 92-167.

Supreme Court of Wyoming.

June 17, 1993.

Roger Cowan, Harris, Morton & Cowan, P.C., Evanston, for appellant.

Dennis W. Lancaster, Phillips, Lancaster & Thomas, P.C., Evanston, for appellees.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.

THOMAS, Justice.

The primary issue to be resolved in this case is whether the statute of frauds forecloses Kenneth Wesley Davis (KWD) from a trial on his claim of an oral contract with his mother, Virginia M. Davis (VMD), to convey the family ranch to him. Embraced within this primary issue are collateral issues concerning whether KWD can avoid the statute of frauds by relying upon the doctrine of substantial part performance or the doctrine of promissory estoppel. An additional issue is present relating to whether the enforcement of his rights under any theory is foreclosed by the applicable statute of limitations. We hold that the evidence presented by KWD in opposition to the motion for summary judgment was not sufficient to satisfy the doctrine of substantial part performance or the doctrine of promissory estoppel and that any oral contract as to which he might have been able to avoid the statute of frauds should have been performed, if at all, more than ten years before he filed his action. The summary judgment entered by the trial court in favor of VMD and other members of the Davis family is affirmed.

KWD, as appellant, states the issues to be:

I. Whether there were material facts in dispute, whereby the district court erred in granting summary judgment and whether the district court's findings of fact are contrary to the evidence presented?

II. Whether upon the evidence most favorable to appellant, summary judgment was proper upon the defenses of:

A. Statute of Limitations?

B. Statute of Frauds?

VMD, Russell A. Davis and Carol May Davis, husband and wife, and Ramsey E. Davis, as appellees, state this single issue:

I. Whether the district court's order of dismissal and award of summary judgment to appellees, and related findings are supported by the facts, the record, and the law.

The basic factual background in this case is not in dispute. VMD was married to Kenneth Davis and, when he died in February of 1963, she became the owner in fee simple of their ranch in Uinta County. VMD had three sons, KWD, Russell A. Davis, who is married to Carol May Davis, and Ramsey E. Davis. On January 31, 1991, VMD conveyed the ranch by warranty deed to Russell A. Davis, his wife, Carol May Davis, and Ramsey E. Davis.

Prior to that time, KWD had occupied, used, and operated the ranch property from approximately February, 1963 to sometime in late 1990. KWD testified in his deposition that he had paid the remaining $12,000 on a mortgage on the ranch after his father's death in return for the promise of VMD that the ranch would be given to him. KWD admits there was no written agreement executed by VMD, as evidenced by the following excerpt of his testimony:

Q: You paid the $12,000 that paid for it?

A: I paid her until she said the mortgage was paid.

Q: Did you have any written agreements with your mother that if you made that payment that was your ground?

A: I had her word on several occasions.

Q: Listen to the question, Mr. Davis. Did you have any written agreement with your mother that if you made these payments that you've referred to that that would be your ground?

A: No.

Q: Did you have any written lease agreement or any other written agreement with your mother?

A: No.

VMD, on the other hand, stated that she had no recollection of any agreement of any nature with KWD regarding the ranch. She testified Q: Did you enter into any kind of an agreement with your son Wesley about what he was to do with the place?

A: It might have been on some points, I don't remember, but not entirely.

Q: What points would there have been that you had an agreement?

A: I suppose it was with sheep shearing or something. I can't remember. I can't remember.

Q: Did you have any agreement with your son Wesley regarding who was going to pay the expenses?

A: I don't remember.

Q: Did you have any agreement with your son Wesley about what you would do with any money that the ranch made?

A: I can't recall.

Q: Did you have any agreement with your son Wesley that he was to give you any money from the ranch?

A: I can't recall.

Later in her deposition, when she was asked if something happened to make her decide to give the property to her other two sons, she answered:

A: No, I don't--it just seemed like there had been enough years, Wes had had it for quite a number of years to use and I figured the others should have a chance at it too. That's all I could think of. No one did anything to make me think about it I know.

While this testimony discloses a difference as to the existence of any agreement with respect to the ranch, the undisputed fact is that there was no writing subscribed by VMD that reflected any agreement to convey the ranch to KWD.

In his complaint, KWD set forth six theories relating to his claim to recover for breach of an agreement to convey the ranch to him. These included: (1) promissory estoppel; (2) breach of promise; (3) resulting trust and lien; (4) quantum meruit; (5) unjust enrichment; and (6) tortious interference with a gift. VMD answered his complaint with a general denial of those allegations, and she submitted a counterclaim. In her counterclaim, VMD alleged: (1) breach of contract for an accounting and conversion based upon KWD's wrongful use and conversion of proceeds from the property; (2) wrongful sale and conversion of livestock, personal property, and mineral interest in the subject property; and (3) waste and loss of value resulting from KWD's misuse of the property. The district court granted appellees' Motion to Dismiss or in the Alternative Motion for Summary Judgment and entered an Order of Dismissal upon these motions. KWD appeals from the district court's Order of Dismissal.

In its decision letter, the trial court reported that it had considered the memorandum filed by each of the parties along with supporting affidavits; heard oral arguments; and granted the motion to publish the depositions of KWD and VMD. A Wyo.R.Civ.P. 12(b)(6) motion to dismiss is converted to a Wyo.R.Civ.P. 56 motion for summary judgment if materials outside the pleadings are considered. Stalkup v. State Dep't of Envtl. Quality, 838 P.2d 705 (Wyo.1992); Cranston v. Weston County Weed and Pest Bd., 826 P.2d 251 (Wyo.1992). We, therefore, apply the standard for review for summary judgments. That standard recently was summarized in this way:

When reviewing the propriety of a summary judgment, this court examines the record from the vantage point most favorable to the party opposing summary judgment to determine whether there exists a genuine issue of material fact to preclude disposition of the case as a matter of law. A genuine issue of material fact exists when a disputed fact, if proved, would have the effect of establishing or refuting an essential element to the cause of action or defense asserted by the parties. If upon such review no genuine issue of material fact is found to exist, we will uphold a summary judgment under any legal theory properly supported by the record.

Miller v. Campbell County and Bd. County Comm'rs, et al., 854 P.2d 71, 75 (Wyo.1993) (citing Abell v. Dewey, 847 P.2d 36, 38-39 (Wyo.1993). See Brown v. Avery, 850 P.2d 612 (Wyo.1993).

We have considered the record in the light most favorable to KWD in determining whether any genuine issue of material fact can be found that would preclude the resolution of this case as a matter of law.

The legal rule that KWD encountered in this case is the statute of frauds, since KWD conceded that his contractual claim is one based upon an agreement to convey land and that the agreement was not reduced to writing. The statute of frauds, as it relates to real property, is codified at Wyo.Stat. § 1-23-105(a)(v) (1988), which reads:

(a) In the following cases every agreement shall be void unless such agreement, or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith:

* * * * * *

(v) Every agreement or contract for the sale of real estate, or the lease thereof, for more than one (1) year * * *.

For more than thirty years, the legislative policy that justifies the statute of frauds in relation to real property has been recognized by this court. In support of that legislative policy we said:

The tendency has been to restrict rather than enlarge and multiply the cases of exceptions to the statute, and the courts should not be tempted to turn aside from its plain provisions merely because of the hardship of the particular case.

Crosby v. Strahan's Estate, 78 Wyo. 302, 324 P.2d 492, 496 (1958).

Unless this case fits within one of the recognized exceptions to the statute of frauds, summary judgment as a matter of law was properly entered.

KWD argues that there are recognized exceptions, which he contends are applicable in this instance, relying upon Allen v. Allen, 550 P.2d 1137 (Wyo.1976). We said in that case:

If performance on one side of a contract is fully executed, the contract is not within the statute of frauds. Hageman & Pond v. Clark, 1951, 69 Wyo. 154, 172, 238 P.2d 919, 926.

Even if it should be considered that there has not been full performance by the Plaintiff because he has yet to convey his paper interest in the * * * [property] to the defendants, his substantial part performance is enough to remove the contract from the statute of frauds. Crosby v. Strahan's Estate, 1958, 78 Wyo. 302, 324 P.2d 492.

Allen, 550 P.2d at 1143. See also Richardson v. Schaub, 796 P.2d 1304 (Wyo.1990).

This doctrine does permit an avoidance of a defense of the statute of...