Estate of Jedrzejewski v. Bierma

• Decision Date: 18 December 2008
• Docket Number: No. S-07-0268.,S-07-0268.
• Citation: 2008 WY 151,197 P.3d 1254
• Parties: ESTATE OF Elsie M. JEDRZEJEWSKI, by and through the Personal Representative, David G. SEVERN, Appellant (Plaintiff), v. Janet L. BIERMA, Appellee (Defendant).
• Court: Wyoming Supreme Court

197 P.3d 1254

2008 WY 151

ESTATE OF Elsie M. JEDRZEJEWSKI, by and through the Personal Representative, David G. SEVERN, Appellant (Plaintiff), v. Janet L. BIERMA, Appellee (Defendant).

No. S-07-0268.

Supreme Court of Wyoming.

December 18, 2008.

Representing Appellant: Susan L. Feinman and Laura J. Jackson of Long Reimer Winegar LLP, Cheyenne, Wyoming.

Representing Appellee: Alexander K. Davison of Patton & Davison, Cheyenne, Wyoming; William D. Bagley of Bagley, Karpan, Rose & White LLC, Cheyenne, Wyoming.

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

GOLDEN, Justice.

[¶ 1] Elsie Jedrzejewski, through her estate, is appealing the district court's decision upholding a deed of her residence in favor of Janet Bierma. Jedrzejewski alleges Bierma obtained her signature on the deed by wrongful act. She also claims the deed is unenforceable due to lack of consideration and lack of proper notarization. Finding no error in the district court's decision, we affirm.

ISSUES

[¶ 2] Jedrzejewski presents three issues for review:

A. Did the District Court err when it declared as a matter of law that the Appellant [sic] holds title to the property described in the 1997 deed purportedly signed by the Appellant in favor of the Appellee ("purported deed") despite the lack of acknowledgement or of proper acknowledgement pursuant to Wyo. Stat. § 34-1-113?

B. Did the District Court err when it concluded as a matter of law that the purported deed is a valid contract between the Appellant and the Appellee despite the lack of consideration paid by the Appellee to the Appellant for the property?

C. Did the District Court err when it concluded as a matter of law that the purported deed is a valid contract between the Appellant and the Appellee despite evidence that the Appellee obtained the Appellant's signature on the purported deed through a wrongful act?

FACTS

[¶ 3] Bierma is Jedrzejewski's stepdaughter. Jedrzejewski married Bierma's father in the early 1980's. Bierma's father died a few years later. After his death, Jedrzejewski and Bierma maintained a close relationship. Jedrzejewski spent holidays with Bierma and went on vacations with her. When Bierma moved to Wyoming, Jedrzejewski followed to remain close to her. Upon arrival in Wyoming in 1995, Jedrzejewski bought the house at issue in this case.

[¶ 4] In March of 1997, Jedrzejewski underwent successful surgery to remove a benign brain tumor. In May 1997, Jedrzejewski, with Bierma's help, reviewed and updated her estate plan. This included updating her will. Jedrzejewski also signed the title of her automobile over to Bierma. The will was signed by Jedrzejewski and purportedly notarized on May 29, 1997. The automobile title was signed by Jedrzejewski and purportedly notarized on May 22, 1997.

[¶ 5] Also on May 22, 1997, a general power of attorney and a warranty deed from Jedrzejewski to Bierma were signed and purportedly notarized. Jedrzejewski testified she never signed either document. She thought her signature might have been forged by Bierma. Bierma, on the other hand, testified Jedrzejewski was concerned about potential future creditors attaching her property. In order to avoid this, Jedrzejewski, of her own volition, decided to deed her house to Bierma. Bierma understood that deeding the house to her was only an estate planning mechanism. Jedrzejewski would maintain possession of the house and pay all related bills until her death. Bierma paid no consideration for the deed and Jedrzejewski did, in fact, remain in the house, paying all bills.

[¶ 6] Bierma testified Jedrzejewski signed all three documents—the power of attorney, warranty deed to the house, and title to the automobile—in her presence and in the presence of a notary on May 22, 1997. These three documents, along with Jedrzejewski's will dated May 29, 1997, were purportedly notarized by a notarial officer whose notary commission had expired in November 1995.

[¶ 7] Jedrzejewski testified she first discovered the deed to her house was in Bierma's name in 2001. She did not, however, confront Bierma about this. According to Jedrzejewski's testimony, she and Bierma maintained a friendly and trusting relationship. Their relationship changed, however, in March 2002 when they stopped speaking. According to Jedrzejewski's testimony, nothing untoward happened. According to Bierma's testimony, Jedrzejewski became upset because Bierma's adult son was staying with her but was not helping with any household expenses. Bierma had told Jedrzejewski from the beginning not to let her son move in with her. An argument ensued, and Jedrzejewski stopped talking to Bierma, refusing to return Bierma's telephone calls.

[¶ 8] This action was begun in May 2006 when Jedrzejewski filed a complaint requesting the district court quiet title to her house in her name. After a bench trial, the district court ruled against Jedrzejewski. After the decision letter was issued, but before the final order was entered, Jedrzejewski passed away. Her estate was substituted as the complaining party. The estate now appeals the district court's ruling.

DISCUSSION

Standard of Review

[¶ 9] This Court applies a clearly erroneous standard when reviewing findings of fact made by the district court after a bench trial. A finding is clearly erroneous when, even though substantial evidence supports it, the reviewing court is left with the definite and firm conviction that a mistake was made.

We do not substitute ourselves for the trial court as a finder of facts; instead, we defer to the trial court's findings unless they are unsupported by the record or erroneous as a matter of law. Although the factual findings of a trial court are not entitled to the limited review afforded a jury verdict, the findings are presumptively correct.

This Court may examine all of the properly admissible evidence in the record, but we do not reweigh the evidence. Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses. We accept the prevailing party's evidence as true and give to that evidence every favorable inference which may fairly and reasonably be drawn from it. Findings may not be set aside because we would have reached a different result.

Snelling v. Roman, 2007 WY 49, ¶¶ 7-8, 154 P.3d 341, 345 (Wyo.2007) (citations omitted). See also Garrison v. CC Builders, Inc., 2008 WY 34, ¶ 22, 179 P.3d 867, 873-74 (Wyo. 2008). We review legal conclusions de novo. Campbell County School Dist. v. State, 2008 WY 2, ¶ 10, 181 P.3d 43, 49 (Wyo.2008); Mullinnix LLC v. HKB Royalty Trust, 2006 WY 14, ¶ 12, 126 P.3d 909, 916 (Wyo.2006).

Sufficiency of the Evidence

[¶ 10] Because Jedrzejewski relies upon her version of the facts to support her arguments in her other two issues, we will review the district court's factual determinations first. Jedrzejewski argues she had no intention of conveying the property to Bierma and Bierma must have forged the deed or otherwise committed fraud to obtain the deed. The district court ruled otherwise. The district court expressly found "the conveyance of Elsie M. Jedrzejewski's residence to Janet L. Bierma was not induced by fraud or undue influence." This factual finding is presumptively correct.

[¶ 11] In reviewing Jedrzejewski's appellate argument in light of the record, we are unconvinced that this finding is clearly erroneous. Jedrzejewski and Bierma offered almost diametrically opposed testimony. The factual findings therefore came down to a determination of credibility. The district court was in the best position to make this determination. Given the trial testimony and other evidence, we have no reason to question the district court's implicit credibility determination and subsequent evidentiary ruling.

Lack of Proper Acknowledgment

[¶ 12] Jedrzejewski earnestly argues the lack of proper acknowledgment renders the deed void ab initio. She bases her argument on Wyo. Stat. Ann. § 34-1-113, which in part requires the execution of all deeds be acknowledged by the party or parties executing the same before a notarial officer. There is no question the instant deed was not acknowledged by an authorized notarial officer. The pertinent inquiry, therefore, regards the consequence of the lack of proper notarization, i.e., whether the deed really is void ab initio as argued by Jedrzejewski.

[¶ 13] Dating back to 1882, the precursors to the current statute always have required some form of acknowledgment.¹ In construing the respective statutory language, this Court has consistently held an improperly executed interest in real property is not void ab initio. The lack of proper acknowledgement prevents the instrument from being recorded, thereby protecting third parties who afterwards may acquire an interest in the property. The instrument is valid, however, as between the parties to the instrument:

The trust deed in question was defectively executed, and was not entitled to record. Although recorded, the record was not constructive notice to any one of its contents. It is not a legal mortgage, but is effective between the parties as an equitable mortgage. The informality in the execution of the trust deed in question is that there is no subscribing witness, as required by statute, and that the acknowledgment is by the president alone, whereas the acknowledgment of the secretary is also necessary, as one of the parties authorized by the resolution of the board of trustees of the company to execute the trust deed, and as the party having custody of the corporate seal. As between the parties, the following seems to be a correct and comprehensive statement of the law applicable to such cases: "A mortgage or trust deed which cannot be enforced by a sale under the power, or by a judgment of foreclosure, on account of some...