Foster v. Wicklund

• Decision Date: 31 July 1989
• Docket Number: No. 88-279,88-279
• Citation: Foster v. Wicklund, 778 P.2d 118 (Wyo. 1989)
• Parties: Robert E. FOSTER and Laura Foster, Appellants (Plaintiffs), v. Loraine WICKLUND, as Personal Representative of the Estate of Mayme I. Lestum, Deceased, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 118

778 P.2d 118

Robert E. FOSTER and Laura Foster, Appellants (Plaintiffs), v.Loraine WICKLUND, as Personal Representative of the Estate of Mayme I. Lestum, Deceased, Appellee (Defendant).

No. 88-279.

Supreme Court of Wyoming.

July 31, 1989.

Kaye Willis, Laramie, for appellants.

John B. Scott of Smith, Stanfield and Scott, Laramie, for appellee.

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

URBIGKIT, Justice.

A real estate development plan controversy intermixing residential and commercial usage created this litigation between the estate of the developer and the purchaser of residential homesite lots.Issues of proper party and mootness are presented for review in this factually simple, although litigatively complex proceeding.

Appellants assess their issues as whether:

I. * * * the Estate of Mayme I. Lestum[developer] was a proper party to this action?

II.* * * Mayme I. Lestum breached her contract with the appellants[homesite occupants]?

Restated, appelleeLoraine Wicklund(Wicklund) as personal representative of the Estate of Mayme I. Lestum adds that "Appellants' claim against the Lestum Estate is moot."¹

These properties are in the small mountain community of Woods Landing near the Colorado border in Albany County, Wyoming.Mayme I. Lestum developed a subdivision with a resale system based on 99-year lease arrangements.²AppellantsRobert E. Foster and Laura Foster(Foster) acquired four lots within the developed area by a 1973 conveyance instrument for use to provide access to other lands which they owned.The conveyance instrument provided in part:

There shall be no business of any kind operated or conducted in this area.

* * * No services, for which remuneration is received, shall be conducted on these premises, or result from the occupancy of the premises.

* * * * * *

* * * Lots located between the highway and the river are to be used for houses only.

Foster then explained the next developments by statement in appellate brief:

In 1978, Appellants leased a small 150' X 100' lot from Mrs. Lestum located across Highway 10 immediately west of their property for the purpose of a summer home for their daughter.The lease, like all the others in the area, was a 99-year residential lease.A year later, Mrs. Lestum refused Appellants' rent money on the lot leased for their daughter.She had leased the same lot and the surrounding five acres to Robert and Wanda Dowdy for the purpose of a log-peeling business, B & W Forest Products.Using the same standard lease form, Mrs. Lestum and/or Mr. Dowdy crossed out all clauses relating to residential property and entered into a ten-year business lease.

Within a context of a somewhat abbreviated record, it is apparent that Robert J. Dowdy and Wanda Dowdy(Dowdy) and their lumbering business, B & W Forest Products, came into conflict with Foster, including contention of trespass and maintenance of nuisance.Foster objected to the business lease arrangement periodically and expressively.

Following a 1987 notice of and request to abate nuisance, Foster, in January 1988, filed this lawsuit against Wicklund as personal representative of the Estate of Mayme I. Lestum and Robert J. Dowdy and Wanda Dowdy, both individually and doing business as B & W Forest Products.In the three count complaint, Foster alleged that the maintenance of the sawmill was a nuisance and was in violation of the provisions of the Foster lease, a similar nuisance claim was made against Dowdy and, in count three of the complaint, claim was made against Dowdy for trespass, with a prayer requesting:

1.That the Court order the immediate abatement and removal of the business known as B & W Forest Products.

2.That the Court enter judgment against the Defendants and each of them, jointly and severally, in the sum of $200,000 for damages to Plaintiff's quiet enjoyment or such other sum as a jury may deem sufficient.

3.That the Court enter an Order of Permanent Injunction as will forbid B & W Forest Products, their employees or agents from trespass upon Plaintiff's property.

First occurring in the course of case development was a dismissal of the claims against the Estate of Mayme I. Lestum by order of the trial court on the basis that the personal representative was "not a proper party."The June 21, 1988 decision letter stated in part:

First of all, the Court cannot see any basis for requiring Loraine Wicklund as personal representative of the Estate of Mayme I. Lestum, deceased, to continue to defend this case.The Estate is not a proper party, either necessary o[r] appropriate and should be dismissed for all purposes.

The dismissal occurred without request in pleading, except for the pro forma defense of failure to state a claim contained in Wicklund's answer.Following the dismissal of Wicklund from the litigation, settlement between Dowdy and Foster was achieved by a stipulation to resolve all issues in their part of the lawsuit as correlated to agreed expiration of the Dowdy lease.In dispositive part, the stipulation provided:

1.Each of the parties specifically represents that this Stipulation and Consent has as its sole purpose the amicable settlement of their dispute with respect to the operation of B & W Forest Products.

2.This Stipulation and Consent has been made as a result of representations each to the other concerning the noise and disturbance generated by the operation of B & W Forest Products.Each party has been represented by legal counsel and each understands the force and effect of this Stipulation and Consent, and the provisions contained herein.Each party executes this Stipulation and Consent of his or her own free will with the intention that it be binding as long as B & W Forest Products operates in its present location which is directly across Highway 10 from Plaintiffs' residence.The parties agree that this Stipulation and Consent will be submitted to the District Court and incorporated into an Order which will constitute a complete settlement between the parties with respect to the operation of B & W Forest Products.

* * * Defendants have notice that the Mayme Lestum Estate does not plan to renew the ten-year lease to B & W Forest Products that will expire on January 17, 1990.Accordingly, Plaintiffs agree that the log peeler need not be moved back away from the highway as agreed on July 11, 1988.However, Defendants agree that if a new site for B & W Forest Products is not found before January 17, 1990, Defendants will on that date cease operation of B & W Forest Products at its present site.

Following the June 1988 dismissal of Wicklund from the lawsuit and the October settlement between Foster and Dowdy, the trial court held in its dispositive judgment that:

1.The Estate of Mayme Lestum is not a proper party to this action.

2.The priority of the Dowdy-Lestum business lease is not affected by the language of nearby residential leases.

3.The Stipulation and Consent entered into by Plaintiffs and Defendants Robert and Wanda Dowdy constitutes a fair and equitable settlement of the remaining issues in this action.

This final judgment, designated Order Incorporating Stipulation and Consent and Order of Final Settlement, filed October 13, 1988, effected a dismissal of the remaining issues of the lawsuit and constituted the final court action from which the present appeal is now taken.Foster appeals by first attacking the conclusion that the estate was an improper party and then objects to trial court finding number two.³We are less than assured whether the second word of that clause is typographically misstated and should have been "propriety" rather than "priority" but, for the purpose of our decision, either term will be deemed applicable with no difference in concept now presented in present appellate briefing by any party.

It is clear by observation that any litigable controversies between Dowdy, individually, the lumber operation and Foster had been settled in full.Whether successors in interest to the estate property ever make another business lease for the property is hypothetical and calls for an advisory opinion as to what its potential effect might be for whatever lease might be made.No party is present in this litigation by the pending appeal which would necessarily be involved in any future lease after completion of the probate of the Estate of Mayme I. Lestum.Factual status of the litigation after stipulated settlement between Foster and Dowdy and cancellation of the Lestum/Dowdy lease is accurately assessed by Wicklund in a discussion in appellate brief of mootness:

It should be noted that having actually resolved the issue of the continuation of the business, Appellants now contend that their "primary goal" is to determine whether or not the "promises" in their lease are enforceable.* * * Appellants even go so far as to state that they are interested in whether future businesses could be located across the highway from their residence.Not only was this issue not raised in the Complaint, but it asks this Court to speculate as to any future potential use of the property in question[ ].

First, nothing remained to litigate in the first clause of the complaint prayer in order to abate the B & W Forest Products business.That issue was settled.Likewise, in third claim, the need or propriety of an injunction was also foreclosed.The nonexistent business could neither be abated nor enjoined and the lease would shortly end by amicable agreement.Inquiry then remains whether the claim in the second paragraph of the prayer remains viable:

2.That the Court enter judgment against the Defendants and each of them, jointly and severally, in the sum of $200,000 for damages to Plaintiff's quiet enjoyment or such other sum as a jury may deem sufficient.

Obviously, this issue between Foster and Dowdy had also been resolved in the stipulation.The quandary we are presented is disposition without...