Guggenmos v. Tom Searl-Frank McCue, Inc., SEARL-FRANK

CourtUnited States State Supreme Court of Wyoming
Writing for the CourtMcEWAN
Citation481 P.2d 48
PartiesGlen D. GUGGENMOS and Ellen v. Guggenmos, Appellants (Defendants below), v. TOMMcCUE, INC., Appellee (Plaintiff below).
Docket NumberNo. 3896,SEARL-FRANK
Decision Date24 February 1971

Page 48

481 P.2d 48
Glen D. GUGGENMOS and Ellen v. Guggenmos, Appellants (Defendants below),
v.
TOM SEARL-FRANK McCUE, INC., Appellee (Plaintiff below).
No. 3896.
Supreme Court of Wyoming.
Feb. 24, 1971.

Edward T. Lazear of Loomis, Lazear, Wilson & Pickett, Cheyenne, for appellants.

James A. Tilker of Kline, Tilker & Lynch, Cheyenne, for appellee.

Before McINTYRE, C. J., and PARKER, McEWAN and GRAY, JJ.

Mr. Justice McEWAN, delivered the opinion of the court.

This is an appeal from a summary judgment granted in favor of appellee-plaintiff, a licensed real estate broker, and against both appellants-defendants on one count, and against the appellant-defendant, Glen D. Guggenmos, on the second count. The plaintiff filed its complaint to which the defendants answered and at the same time filed a motion for summary judgment, which was followed by a motion for summary judgment by the plaintiff. The record is not long (18 pages), there having been only the complaint, answer, defendants' motion for summary judgment, plaintiff's motion for summary judgment, and the judgment on the motion for summary judgment. There were no affidavits filed

Page 49

by either party so we look only to the complaint, answer and the motions.

The complaint was as follows:

'First Count

'1. That plaintiff is, and at all times mentioned herein was, a duly licensed real estate broker, authorized to do business in the State of Wyoming, and principally engaged in such.

'2. That at all times herein mentioned, defendants were husband and wife, acting by and for each other and as agents for each other.

'3. That on or about April 10, 1970, defendants entered into a listing contract with plaintiff, entitled 'Real Estate Broker Contract',' (this was signed by Glen Guggenmos as owner) 'attached hereto and marked 'Exhibit A', covering the sale of the therein described real property, owned by defendants.

'4. That on or about April 25, 1970, plaintiff furnished and produced willing and able purchasers of said property who made a written offer, at the listing price of $16,000.00, on terms which defendants consented to.

'5. That defendants further accepted said written offer on or about April 28, 1970, as shown by the 'Purchase Offer, Acceptance and Receipt',' (this was signed by Ellen V. Guggenmos as seller) 'a copy of which is attached hereto and marked 'Exhibit B'.

'6. That, pursuant to the directions of defendants to prepare for the closing of the sale of said property, plaintiff incurred expenses for abstracting, title examination and escrow instructions in the sum of $52.00.

'7. That subsequent thereto defendants declined to sell said listed property or to pay the agreed commission ($960) and expenses ($52) to plaintiff.

'8. By reason thereof, defendants owe to plaintiff the sum of $1,012.00.

'Second Count

'1. and 2. Plaintiff incorporates Paragraphs 1 and 2 of its First Count by reference.

'3. That on or about April 10, 1970, defendants entered into a listing contract with plaintiff, entitled 'Real Estate Broker Contract',' (this was signed by Glen Guggenmos as owner) 'attached hereto and marked 'Exhibit C', covering the sale of the therein described real property, owned by defendants.

'4. That on or about May 18, 1970, plaintiff furnished and produced a willing and able purchaser of said property who made a written offer, at the listing price of $35,000.00, on terms which defendants consented to, which terms are set forth in 'Exhibit D' attached hereto.

'5. That subsequent thereto defendants declined to sell said listed property or to pay the agreed commission ($2,100).

'6. By reason thereof, defendants owe to plaintiff the sum of $2,100.00.

'WHEREFORE, plaintiff prays for Judgment as follows:

'(a) On its First Count, in the sum of $1,012.00,

'(b) On its Second Count, in the sum of $2,100.00.

'(c) For its costs incurred herein.'

The defendants answered as follows:

'ANSWER TO FIRST COUNT

'1. Admit that Plaintiff is a licensed real estate broker.'

'2. (Sets forth the legal description of the property.)

'3. That attached hereto is a photostatic copy of the Deed by which the defendants acquired said property; and that by the terms of said deed, said property is owned by 'Glen D. Guggenmos and Ellen V. Guggenmos, husband and wife.'

'4. That the purported 'Real Estate Broker Contract', Plaintiff's Exhibit A, executed by Glen Guggenmos alone, and

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which his wife Ellen V. Guggenmos failed to execute, is null and void and of no force or effect and is not binding on the said wife.

'ANSWER TO SECOND COUNT

'1. Admit that Plaintiff is a licensed real estate broker.'

'2. (Sets forth the legal description of the property.)

'3. That attached hereto is a photostatic copy of the Deed by which the defendants acquired said property; and that by the terms of said deed, said property is owned by 'Glen D. Guggenmos and Ellen V. Guggenmos, husband and wife.'

'4. That the purported 'Real Estate Broker Contract', Plaintiff's Exhibit C, executed by Glen Guggenmos alone, and which his wife Ellen V. Guggenmos failed to execute, is null and void and of no force or effect and is not binding on the said wife.

'WHEREFORE, Defendants pray that the complaint of the Plaintiff be dismissed at the Plaintiff's cost and that judgment be for the Defendants.'

The defendants moved the court to enter a summary judgment on the grounds there was no genuine issue as to any material fact and the defendant was entitled to a judgment as a matter of law. The motion was based upon the...

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20 practice notes
  • Rodarte v. City of Riverton, No. 4480
    • United States
    • United States State Supreme Court of Wyoming
    • 20 Julio 1976
    ...application of Rule 56, W.R.C.P., to cases in which there is no dispute as to the facts. Guggenmos v. Tom Searl-Frank McCue, Inc., Wyo., 481 P.2d 48 (1971); Bon v. Lemp, Wyo., 444 P.2d 333 (1968); Fugate v. Mayor and City Council of Town of Buffalo, Wyo., 348 P.2d 76 (1959). Even in cases n......
  • Forbes v. Forbes, Nos. S–14–0122
    • United States
    • United States State Supreme Court of Wyoming
    • 23 Enero 2015
    ...specification of the facts upon which the conclusion of negligence is based [need be] included.” Guggenmos v. Tom Searl–Frank McCue, Inc., 481 P.2d 48, 51 (Wyo.1971) ; W.R.C.P. Form 9 ; Harris, 599 P.2d at 583–84 ; see also BB v. RSR, 2007 WY 4, ¶¶ 12–13, 149 P.3d 727, 732–33 (Wyo.2007) (fi......
  • Forbes v. Forbes, Nos. S–14–0122
    • United States
    • United States State Supreme Court of Wyoming
    • 23 Enero 2015
    ...specification of the facts upon which the conclusion of negligence is based [need be] included.” Guggenmos v. Tom Searl–Frank McCue, Inc., 481 P.2d 48, 51 (Wyo.1971); W.R.C.P. Form 9; Harris, 599 P.2d at 583–84; see also BB v. RSR, 2007 WY 4, ¶¶ 12–13, 149 P.3d 727, 732–33 (Wyo.2007) (findi......
  • Allen v. Allen, No. 4541
    • United States
    • United States State Supreme Court of Wyoming
    • 4 Junio 1976
    .... A question not raised in the trial court cannot be considered by the supreme court. Guggemos v. Tom Searl-Frank McCue, Inc., Wyo. 1970, 481 P.2d 48, 51; Gaido v. Tysdal, supra (68 Wyo. 490, 235 P.2d 741). See also the multitude of cases cited in West's Wyoming Digest, Appeal and Error, 'I......
  • Request a trial to view additional results
20 cases
  • Rodarte v. City of Riverton, No. 4480
    • United States
    • United States State Supreme Court of Wyoming
    • 20 Julio 1976
    ...application of Rule 56, W.R.C.P., to cases in which there is no dispute as to the facts. Guggenmos v. Tom Searl-Frank McCue, Inc., Wyo., 481 P.2d 48 (1971); Bon v. Lemp, Wyo., 444 P.2d 333 (1968); Fugate v. Mayor and City Council of Town of Buffalo, Wyo., 348 P.2d 76 (1959). Even in cases n......
  • Forbes v. Forbes, Nos. S–14–0122
    • United States
    • United States State Supreme Court of Wyoming
    • 23 Enero 2015
    ...specification of the facts upon which the conclusion of negligence is based [need be] included.” Guggenmos v. Tom Searl–Frank McCue, Inc., 481 P.2d 48, 51 (Wyo.1971) ; W.R.C.P. Form 9 ; Harris, 599 P.2d at 583–84 ; see also BB v. RSR, 2007 WY 4, ¶¶ 12–13, 149 P.3d 727, 732–33 (Wyo.2007) (fi......
  • Forbes v. Forbes, Nos. S–14–0122
    • United States
    • United States State Supreme Court of Wyoming
    • 23 Enero 2015
    ...specification of the facts upon which the conclusion of negligence is based [need be] included.” Guggenmos v. Tom Searl–Frank McCue, Inc., 481 P.2d 48, 51 (Wyo.1971); W.R.C.P. Form 9; Harris, 599 P.2d at 583–84; see also BB v. RSR, 2007 WY 4, ¶¶ 12–13, 149 P.3d 727, 732–33 (Wyo.2007) (findi......
  • Allen v. Allen, No. 4541
    • United States
    • United States State Supreme Court of Wyoming
    • 4 Junio 1976
    .... A question not raised in the trial court cannot be considered by the supreme court. Guggemos v. Tom Searl-Frank McCue, Inc., Wyo. 1970, 481 P.2d 48, 51; Gaido v. Tysdal, supra (68 Wyo. 490, 235 P.2d 741). See also the multitude of cases cited in West's Wyoming Digest, Appeal and Error, 'I......
  • Request a trial to view additional results

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