Martin v. DeWitt

• Decision Date: 09 September 2014
• Docket Number: No. S–13–0185.,S–13–0185.
• Citation: 334 P.3d 123,2014 WY 112
• Parties: Catherine Elizabeth MARTIN, Appellant (Defendant), v. Phillip DEWITT and Jeanne M. Prieto, Appellees (Plaintiffs).
• Court: Wyoming Supreme Court

334 P.3d 123
2014 WY 112

Catherine Elizabeth MARTIN, Appellant (Defendant)
v.
Phillip DEWITT and Jeanne M. Prieto, Appellees (Plaintiffs).

No. S–13–0185.

Supreme Court of Wyoming.

Sept. 9, 2014.

334 P.3d 124

Representing Appellant: John C. Hoard, Attorney at Law, Casper, Wyoming; Kenneth Rosellini, Attorney at Law, Clifton, New Jersey.

Representing Appellees: Thomas F. Reese of Beatty, Wozniak & Reese, Casper, Wyoming.

334 P.3d 125

Before BURKE, C.J., and HILL, KITE^* , DAVIS, and FOX, JJ.

Opinion

DAVIS, Justice.

¶ 1] Appellant Catherine Martin contends that the district court committed errors relating to the partition sale of a property she owned as a tenant in common with two relatives. Appellant focuses her appeal on a judgment determining that she had exclusive possession of the property and owed the other tenants in common rent, as well as an order approving public sale of the property pursuant to Wyo. Stat. Ann. § 1–32–101 et seq. (LexisNexis 2013). We affirm.

ISSUES

[¶ 2] 1. Did the district court err in finding that Appellant possessed the property exclusively without the consent and agreement of the other cotenants and ousted them from it?

2. Did the evidence support the district court's findings as to the amount of rent Appellant owed?

3. Can a party to a partition action purchase the property at a public auction under Wyo. Stat. Ann. § 1–32–111, and if so, can he bid in the value of his interest in the property and part of a judgment rather than paying cash for it?

4. Is a tenant in common who occupies the property entitled to a homestead exemption under Wyo. Stat. Ann. 1–20–101 et seq. (LexisNexis 2013) when it is sold as the result of partition?

FACTS

[¶ 3] Appellant and Appellees Phillip DeWitt and Jeanne Prieto are tenants in common of a single family home in Casper, Wyoming. Appellees filed a petition for partition, and they also claimed that Appellant owed them rent for her exclusive use of the property. Appellant answered and counterclaimed for partition as well.

[¶ 4] A bench trial was held to determine whether Appellant had ousted the other two tenants in common and owed them rent. Several witnesses evidently testified, but the trial was not reported and therefore no transcript exists for our review. Appellant filed a statement of what she claimed was the evidence presented, and Appellees responded, disagreeing in material respects as to what had been developed in the hearing. The court did not settle and approve the statement as required by Wyoming Rule of Appellate Procedure 3.03, which sets forth the mandatory procedure to establish an accurate record of the evidence for appellate review:

If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, appellant may prepare a statement of the evidence or proceedings from the best available means including appellant's recollection. The statement shall be filed and served on appellee within 35 days of the filing of the notice of appeal. Appellee may file and serve objections or propose amendments within 15 days after service. The trial court shall, within 10 days, enter its order settling and approving the statement of evidence, which shall be included by the clerk of the trial court in the record on appeal.

W.R.A.P. 3.03 (emphasis added). We have explained that the rule “clearly requires trial court approval of a statement before it can properly be considered settled and become part of the record.” Nw. Bldg. Co., LLC v. Nw. Distrib. Co., Inc., 2012 WY 113, ¶ 31, 285 P.3d 239, 247 (Wyo.2012) (quoting TOC v. TND, 2002 WY 76, ¶ 3 n. 1, 46 P.3d 863, 867 n. 1 (Wyo.2002) ).

Because the district court did not settle Appellant's statement of the evidence, it cannot be considered in this appeal. Maynard v. Maynard, 585 P.2d 1201, 1202 (Wyo.1978) (per curiam).

[¶ 5] When there is no transcript of the trial proceedings or a settled statement of the evidence, we accept the trial court's findings as the only basis for deciding issues pertaining to the accuracy of those findings or the sufficiency of the evidence. Golden v. Guion, 2013 WY 45, ¶ 4, 299 P.3d 95, 96 (Wyo.2013) ;

[334 P.3d 126

Barrett–Oliver v. Quast, 2013 WY 71, ¶ 10, 302 P.3d 909, 912 (Wyo.2013). “In the absence of anything to refute them, we will sustain the trial court's findings, and we assume that the evidence presented was sufficient to support those findings.” Golden, ¶ 4, 299 P.3d at 96.

¶ 6] Since this Court has been provided neither a transcript of the trial nor a settled statement of the evidence, we accept the following findings the district court included in its judgment:

Findings of Fact

1. The parties own the house at [ ], Casper, Wyoming.

2. The parties have agreed to partition and a separate order has been entered concerning partition. That order is incorporated herein by reference.

3. The issues before the Court in the trial were whether Defendant had exclusively possessed the house at [ ], and if so what rent does the Defendant owe.

4. It was undisputed that the residence at [ ] is a single family residence.

5. It was undisputed that the Plaintiffs, Prieto and Dewitt and the Defendant, Ms. Martin, do not have a good relationship and could not reside in the same residence.

6. It was undisputed that Ms. Martin moved into the home at [ ] in June of 2008 and spent seven months of 2008 there.

7. It was undisputed that at least one of the Plaintiffs repeatedly asked the Defendant to either pay rent or move out of the residence at [ ].

8. It was undisputed that the Defendant resided in the residence at [ ] from January to August of 2009, for a total of eight months in 2009.

9. It was undisputed that the Defendant moved back into the residence at [ ] in July of 2010 and has stayed there through the end of February, 2011, for a period of another eight months.

10. During all of this time period it was undisputed that at least one of the Plaintiffs repeatedly asked the Defendant to either leave the residence or pay rent.

11. The value of rent for the home at [ ] was undisputed. It was testified that for the seven months in 2008 the value of rent for the house is $1800 per month, so that the Defendant should have paid the Plaintiffs 2/3 of that amount, or $1200 per month for a total of $8400 for her exclusive use in 2008.

12. For the remaining 16 months (2009 through February 2011) the undisputed evidence was that the rental value was $1200 per month, so that the Defendant should have paid Plaintiffs $800 a month for 16 months, or a total of $12,800.

13. The total amount of rent Defendant owes Plaintiffs is $21,200.

14. Defendant admitted she paid no rent to Plaintiffs. She admitted the Plaintiffs have asked her repeatedly to vacate the property. She admitted the Plaintiffs tried to have her evicted. She admitted she changed the locks on the house. She admitted to having excluded agents of the Plaintiffs from the property.

[¶ 7] Based upon these findings of fact, the district court concluded as follows:

Conclusions of Law

1. The Defendant had exclusive possession of this single family residence through her actions.

2. Since this is a single family residence when the Defendant moved into the house she took exclusive possession knowing that the other co-tenants could not live in this same house while she was living there.

3. The Defendant refused to vacate the property or to pay rent when asked by the Plaintiffs. She changed the locks. She excluded agents of the Plaintiffs from the property.

4. Each one of these acts of the Defendant establishes her exclusive possession of the property. As such, by her exclusive possession of the property she ousted the Plaintiffs from the property and must pay them a fair rental value for her use of the property.

Consistent with these findings and conclusions, the district court ordered Appellant to pay Appellees $21,200, plus court costs and attorney fees.

[334 P.3d 127

¶ 8] Commissioners were subsequently appointed to determine the value of the home as required by Wyoming's partition statutes, Wyo. Stat. Ann. § 1–32–101 et seq.¹ The commissioners determined the market value of the home to be $70,000. See Wyo. Stat. Ann. § 1–32–109. In accordance with § 1–32–110, the parties then had the opportunity to elect to purchase the property at the appraised value. They did not do so, however.

[¶ 9] The district court then ordered a public auction pursuant to § 1–32–111. Appellees became the successful (and only) bidders by asserting their ownership interests in the property (two-thirds of $70,000) rather than paying cash. The district court approved the sale. Appellant moved to set the order approving the sale aside, and she also sought a homestead exemption under Wyo. Stat. Ann. § 1–20–101. If she was entitled to the exemption, she would have received $20,000, regardless of the judgment for rent.

[¶ 10] The district court vacated its order approving the partition sale because it had not approved the use of the value of Appellees' interests in the property as payment when the sale was conducted. It denied Appellant's claim to a homestead exemption because the partition sale was not a forced sale, relying on Osborn v. Warner, 694 P.2d 730 (Wyo.1985).

[¶ 11] Appellees then moved the district court for a new order of public sale that allowed them to apply the value of their ownership interests as tenants in...