Lindsey v. Harriet

• Decision Date: 13 May 2011
• Docket Number: No. S–10–0046.,S–10–0046.
• Citation: 255 P.3d 873,2011 WY 80
• Parties: Christine A. LINDSEY, Appellant (Defendant),v.Carol Peitersen HARRIET and Donald Peitersen, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

255 P.3d 873

2011 WY 80

Christine A. LINDSEY, Appellant (Defendant),

v.Carol Peitersen HARRIET and Donald Peitersen, Appellees (Plaintiffs).

No. S–10–0046.

Supreme Court of Wyoming.

May 13, 2011.

Representing Appellant: Ann M. Rochelle of Rochelle Law Offices, P.C., Casper, Wyoming.Representing Appellees: Timothy J. Kirven of Kirven and Kirven, P.C., Buffalo, Wyoming.Before KITE, C.J., and GOLDEN, HILL, VOIGT,^* and BURKE, JJ.GOLDEN, Justice.

[¶ 1] Appellant Christine A. Lindsey (Lindsey), owner of sixty-seven shares of corporate stock of Burnett Livestock Company (Company), appeals the district court's summary judgment that imposed a constructive trust upon those sixty-seven shares for the benefit of several of her relatives, including her aunt and uncle, Carol Peitersen Harriet and Donald Peitersen (Appellees), in accordance with the provisions of a document entitled Agreement for Disposition of Rental and/or Royalty Income (1989 Agreement) signed on February 20, 1989, by Janet Sue Lohry, who was Lindsey's mother, and Helen Peitersen, who was Lindsey's grandmother. We reverse the summary judgment and remand for further proceedings consistent with this opinion.

ISSUES

[¶ 2] Lindsey sets forth her statement of the issues in this fashion:

1. No Creditor's Claim was Filed by Appellees in the Estate of Janet Lohry Thus Barring this Constructive Trust Claim: Was the claim of Appellees for a constructive trust barred because they failed to file a creditor's claim in the Estate of Janet Lohry?

2. Gifts Were Made in 1987 and 2001: Was the transfer of the 67 shares of stock by Helen Peitersen to Janet Lohry in August 1987 a completed gift?

Was the transfer of the 67 shares of stock by Janet Lohry in March 2001 to Christine Lindsey a completed gift?

3. There Was No Constructive Trust: Did the Agreement for Disposition of Rental and/or Royalty Income dated February 20, 1989, constitute a promise made in 1987 by which Janet Lohry induced Helen Peitersen to transfer the 67 shares of BLC stock to Janet Lohry in 1987 and by which transfer Janet Lohry was unjustly enriched so as to support a constructive trust?

4. At Best, the Agreement Was a Life Estate for Income Based on Janet's Life: Assuming arguendo that the Agreement was a promise to induce Helen Peitersen to transfer the 67 shares of BLC stock to Janet, what were the terms of that promise? The Agreement by its own terms:

• Was limited to income.

• Was limited to the lifetime of Janet Lohry.

• Imposed an obligation on Janet Lohry, but no one else.

• Acknowledged that Janet Lohry was the owner of the 67 shares.

• Acknowledged that Janet had the unfettered rights as to the disposition of those stock shares.

Appellees state this issue:

Did the District Court correctly grant Plaintiffs' Motion for Summary Judgment enforcing the Agreement for Disposition of Rental and/or Royalty Income and imposing a constructive trust on shares of stock held by Appellant?

Lindsey also filed a reply brief regarding the creditor's notice issue; a revocable assignment issue; and the issue whether Janet Sue Lohry's transfer of the shares of stock to Lindsey was effective before Janet Sue Lohry's death.

FACTS

[¶ 3] Helen Peitersen's children were Janet Sue Lohry, Keri J. Haswell, Bette G. Peitersen, and Appellees. Helen Peitersen acquired fifty shares of Company stock on November 20, 1959, and another seventeen shares on September 7, 1979. On August 14, 1987, Helen Peitersen assigned her sixty-seven shares of Company stock to her daughter, Janet Sue Lohry, and Stock Certificate No. 83 evidencing those shares was issued to that daughter. Sixteen days later, on August 30, 1987, Helen Peitersen wrote the following letter to that daughter:

Dear Janet:

It was great having you all here this weekend. And thank you for the phone call yesterday. I feel much better after talking with you.

Thought I had collected all of the Burnett Livestock papers, but found this in my desk last night. I believe the best way to handle this stock would be if any dividends go over a[sic] $1000 they should be divided equally among you five children. Anything below that should be kept for you for the handling of the company. That will be provided for in our will. How do you feel about this, would it pose a tax problem (for you) if we were to get a substantial amt. on a lease? We must be sure we handled this the easiest possible way for you. Give it some thought as we need to update our will this winter.... Love, Mom

[¶ 4] Almost eighteen months later, on February 20, 1989, Helen Peitersen and her daughter, Janet Sue Lohry, signed the 1989 Agreement:

AGREEMENT FOR DISPOSITION OF RENTAL AND/OR ROYALTY INCOME

WHEREAS, JANET SUE LOHRY is the owner of Sixty–Seven (67) shares of BURNETT LIVESTOCK COMPANY, a Wyoming Corporation, of which she is President; and

WHEREAS, those shares were transferred to her by her mother, HELEN A. PEITERSEN, as a result of the intent expressed in her father's will; and

WHEREAS, both, JANET SUE LOHRY and HELEN A. PEITERSEN are desirous to provide that the income from the BURNETT LIVESTOCK COMPANY, which may be enjoyed as a result of the ownership of these shares be divided to provide some benefit to the other family members;

NOW THEREFORE IT IS AGREED, that when such time arises as the income of the BURNETT LIVESTOCK COMPANY is such that there is an excess of corporate income over expenditures sufficient to issue a dividend with a reasonable reserve for capital expenditures, and to the extent that JANET SUE LOHRY is able to require the corporation to make a distribution to the shareholders of all funds over and above those necessary for corporate expenditures, said dividend shall when received by JANET SUE LOHRY be distributed as follows:

+---------------------------------------------------------+
                ¦1. JANET SUE LOHRY and HELEN A. PEITERSEN¦50%            ¦
                +-----------------------------------------+---------------¦
                ¦2. DONALD B. PEITERSEN                   ¦12.5%          ¦
                +-----------------------------------------+---------------¦
                ¦3. CAROL A. HARRIET                      ¦12.5%          ¦
                +-----------------------------------------+---------------¦
                ¦4. KARI J. HASWELL                       ¦12.5%          ¦
                +-----------------------------------------+---------------¦
                ¦5. BETTY G. PEITERSEN                    ¦12.5%          ¦
                +---------------------------------------------------------+
                

THIS AGREEMENT is only enforceable to the extent that each of the beneficiaries of this distribution of the corporate income, shall agree to be fully responsible for their share of the tax consequences of such distribution.

IT IS FURTHER UNDERSTOOD, that JANET SUE LOHRY may control the disposition of the shares, and the ownership of the shares is to remain in her name and under her complete control, except as set out above with regard to the disposition of dividend income.

[¶ 5] More than seven years later, on September 30, 1996, Janet Sue Lohry executed her will which provided in pertinent part that her sixty-seven shares of Company stock were bequeathed to her daughter Lindsey, subject to the terms of the 1989 Agreement. Ten months later, on August 1, 1997, Janet Sue Lohry signed two handwritten documents, but there is no indication which of the documents was written first. One document reads as follows:

Burnett Livestock Co.

67 Shares

Let it be known that my wishes & intent in bequeathing 67 shares of Burnett Livestock Co. to my daughter, Christine A. Lohry, is for the purpose of providing her, and her alone, full & sole use of the shares.

She will, in accordance with my wishes, distribute any dividends in an equitable manner between herself, Gary Peitersen, Don Peitersen and Carol Peitersen. Upon the death of any of these parties, she will return their portion to the common pool and redistribute equatably [sic].

Under no circumstances is she to distribute any dividends to her grandmother, Helen Peitersen, if living, Kari Haswell or Bette Peitersen. Distribution to them terminates upon my death.

Janet S. Lohry

August 1, 1997

This statement is made in hope of protecting her inherited rights.

[¶ 6] We can make several observations about this document. The person referred to as Christine A. Lohry is the appellant Lindsey, and the person referred to as Gary Peitersen is Lindsey's brother. Comparing the dividends distribution stated in this 1997 document with the dividends distribution stated in the 1989 Agreement, which is referred to in Janet Sue Lohry's 1996 will, we see that there are now different beneficiaries:

1. Gary Peitersen was not listed in the 1989 Agreement, but now is listed in this 1997 document;

2. Kari Haswell was listed in the 1989 Agreement, but now is not listed in the 1997 document;

3. Bette Peitersen was listed in the 1989 Agreement, but now is not listed in the 1997 document;

4. Helen Peitersen was listed in the 1989 Agreement, but now is not listed in the 1997 document.

Comparing the amounts of dividends to be distributed under the 1989 Agreement with those under the 1997 document, we see that the percentages set forth in the former no longer exist in the latter. That is, the 1997 document states simply that Lindsey will distribute “any dividends in an equitable manner between herself, Gary Peitersen, Don Peitersen and Carol Peitersen.”

[¶ 7] The other handwritten document signed by Janet Sue Lohry on August 1, 1997, reads as follows:

Dividend Distribution on Burnett Livestock Co.

Effective this date, all previous agreements regarding my shares in Burnett Livestock Co. are null and void.

This statement reflects my wishes and intent to distribute any dividends received from my 67 shares as follows:

1. 10% set aside for Federal tax;

2. 40% for my use;

3. 15% for Don Peitersen;

4. 15% for Carol Harriet;

5. 10% for Helen A. Peitersen;

6. 5% for Kari Haswell; and

7. 5% for Bette Peitersen.

If Helen Peitersen should predease [sic] me, her 10% should be divided equally between...