McGuire v. Lowery

• Decision Date: 04 April 2000
• Citation: 2 P.3d 527
• Parties: Richard J. McGUIRE, Jr. and Kristine E. McGuire, Appellants (Plaintiffs), v. M. Bernard LOWERY, Jr., individually; Ethel M. Rabel, individually; Pronghorn Construction Ltd, Keogh Account dated January 1, 1982, through its Trustees M. Bernard Lowery, Jr. and Ethel M. Rabel; Jean C. Cotton Living Trust Agreement dated March 30, 1995, through its Trustee Jean C. Cotton, Appellees (Defendants), and John P. Adams, Mary Adams, Margaret J. Kline, E. Robert Adams and Jane Adams, Appellees (Intervenors).
• Court: Wyoming Supreme Court

2 P.3d 527

Richard J. McGUIRE, Jr. and Kristine E. McGuire, Appellants (Plaintiffs), v. M. Bernard LOWERY, Jr., individually; Ethel M. Rabel, individually; Pronghorn Construction Ltd, Keogh Account dated January 1, 1982, through its Trustees M. Bernard Lowery, Jr. and Ethel M. Rabel; Jean C. Cotton Living Trust Agreement dated March 30, 1995, through its Trustee Jean C. Cotton, Appellees (Defendants), and John P. Adams, Mary Adams, Margaret J. Kline, E. Robert Adams and Jane Adams, Appellees (Intervenors).

No. 99-9.

Supreme Court of Wyoming.

April 4, 2000.

Representing Appellants: Steven F. Freudenthal of Herschler, Freudenthal, Salzburg, Bonds & Zerga, P.C., Cheyenne, Wyoming.

Representing Appellees Lowery, Rabel, and Pronghorn Construction Ltd., Keogh Account: Becky N. Klemt and Greg A. Von Krosigk of Pence and MacMillan, Laramie, Wyoming.

Representing Appellee Jean K. Cotton Living Trust Agreement: John M. Walker of Hickey, Mackey, Evans & Walker, Cheyenne, Wyoming; and B.D. Trierweiler, Cheyenne, Wyoming.

Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

THOMAS, Justice.

The primary question in this appeal is whether a first right of refusal in real property is triggered when the grantors of the right place title to the burdened property in the name of their wholly owned and controlled business assign, rather than their individual names, under which they granted the right of refusal. Because the property remained under the control of the same persons, we hold the first right of refusal was unaffected, and we affirm the district court's grant of summary judgment on the issue. In a second issue, appellants Richard J. McGuire Jr. and Kristine E. McGuire (the McGuires) ask us to decide whether a contractual provision for "a recordable easement" requires appellees M. Bernard Lowery Jr. (Lowery), Ethel M. Rabel (Rabel), and Pronghorn Construction Ltd., Keogh Account (Pronghorn Construction) to provide multiple easements when rugged, mountainous terrain prevents any one easement from providing access to an entire parcel of land. Looking to the unambiguous contract language, we hold that only one access easement is required, and affirm the district court's grant of summary judgment on that issue as well. Finally, the McGuires challenge the district court's refusal to award their attorney's fees and costs. We hold there was no abuse of the district court's discretion in its ruling on attorney's fees and costs, and we affirm the decision.

This statement of the issues is found in the Brief of Appellants:

A. As a matter of law, is property subject to a right of first refusal freed of the right of first refusal whenever it is transferred with other property[?]

B. As a matter of law, does an access easement providing access to less than twenty percent of Section 7 (approximately 640 acres) comply with a contractual duty to "provide a recordable access easement to Section 7[?]"

C. Under the facts of this case, did the District Court abuse its discretion in failing to provide for an award of attorney's fees to the McGuires as the prevailing, non-defaulting party under the McGuire Contract[?]

This Statement of the Issues is found in the Brief of Appellees M. Bernard Lowery, Jr., Ethel M. Rabel, and Pronghorn Construction Ltd., Keogh Account:

1. The district court did not err in holding that there were no issues of material fact in dispute and that, as a matter of law, Appellee Pronghorn Construction Ltd. Keogh Account's exercise of an option did not violate the clear language of Appellants' right of first refusal.

2. The district court did not err in determining, as a matter of law, that Appellees Rabel and Lowery were only contractually obligated to provide Appellants with a single recordable access easement to Section 7, and in determining, as a matter of fact, that the easement ultimately granted was reasonable.

3. The district court did not abuse its discretion in refusing to award attorney's fees to any party.

This Statement of the Issues is found in the Brief of Appellee, Jean K. Cotton Living Trust Agreement Concerning Easement Issue:

I. Did the trial court [err] when it concluded that appellants' rights of first refusal were not breached? (This issue will be addressed and briefed through separate brief by B.D. Trierweiler. The title insurance company for the Cotton Trust has agreed to defend this issue, but has refused to defend the issue set forth below. Accordingly, Cotton Trust has hired this firm to defend such issue,)

II. Did the trial court act in a clearly erroneous manner when it personally inspected and fixed the location of the appellants' easement?

This Statement of the Issues is found in the Brief of Appellee, filed on behalf of the Cotton Living Trust Agreement:

A. Did the purchase of property, which was subject to a first right of refusal along with other property, by Pronghorn Construction Ltd. Keogh Account from Williams Land & Livestock Co. trigger Appellants['] first right of refusal?

B. Did the District Court abuse its discretion by failing to award attorney's fees and costs to Appellants?

In September of 1994, Lowery and Rabel entered into an option agreement that permitted them or their assigns to purchase several parcels of land. Lowery and Rabel controlled several business entities, among which were Pronghorn Development Ltd., Berthel Investors, and Pronghorn Construction. In March of 1995, Lowery and Rabel accepted an offer from the McGuires to purchase Section 7, which was one of the parcels of land that Lowery and Rabel had an option to acquire, although they had not at that time exercised their option. In Attachment "A" to the contract entitled Offer, Acceptance and Receipt Specific Performance Contract (McGuire Contract) Lowery and Rabel agreed that the McGuires would have a "first right of refusal" on another parcel of the land that Lowery and Rabel held an option to purchase (the ROR parcel). The McGuire Contract provided that the first right of refusal would be triggered if Lowery and Rabel received an acceptable offer on the ROR parcel during 1995. An additional provision in Attachment "A" obligated the "[s]eller to provide a recordable access easement to Section 7, T14N, R72W of 6th P.M. within one year from closing."

The sale to the McGuires was closed on April 28, 1995. In a separate document executed at that time, Lowery and Rabel committed to provide an easement:

The undersigned hereby agrees to furnish a recordable access easement to Section 7, Township 14 North, Range 72 West of the 6th P.M., Albany County, Wyoming, within one year from the date of this document.

On the same day that the McGuire sale closed, Lowery and Rabel, in their capacities as trustees of Pronghorn Construction, exercised their option to purchase certain parcels of the optioned land including the ROR parcel. The McGuires never were informed of the transfer of the ROR parcel to Pronghorn Construction.

In the month of August of 1995, Pronghorn Construction received an offer from the Jean K. Cotton Living Trust (Cotton Trust) to purchase some of Pronghorn Construction's land, including the ROR parcel. Pronghorn Construction sent a copy of the Cotton Trust offer to the McGuires, with the name of the offeror redacted. The McGuires made no effort to exercise their first right of refusal, and the Cotton Trust later withdrew the offer, leaving Pronghorn Construction as the owner of the ROR parcel. In January of 1996, after the McGuires' first right of refusal had expired according to its terms, the Cotton Trust made another offer to purchase the ROR parcel which Pronghorn Construction accepted. In the warranty deed from Pronghorn Construction to the Cotton Trust a: "20 foot access easement for ingress and egress to Section 7 * * * for Dick McGuire * * *," was reserved.

On July 3, 1996, the McGuires filed this action in which they alleged that Lowery and Rabel had breached their contract with the McGuires by denying their first right of refusal and by failing to provide a recordable easement appurtenant to Section 7. The McGuires' Complaint also included, as a prayer for relief, a demand for attorney's fees and costs. Lowery, Rabel, and Pronghorn Construction answered the McGuires' Complaint, and denied violating the first right of refusal. They affirmatively alleged that they already had granted the McGuires a recordable access easement to Section 7.

Lowery, Rabel and Pronghorn Construction filed a Motion for Summary Judgment, which the district granted in part and denied in part. In its partial grant of summary judgment the court disposed of two of the claims presented by the McGuires. The district ruled that no event occurred in 1995 which had the effect of triggering the McGuires' first right of refusal, and that first right of refusal expired by its express terms when the year ended. The district court also construed the contract as obligating Lowery, Rabel and Pronghorn Construction to provide only one access easement to Section 7 for the McGuires, and that easement had been furnished. On two issues summary judgment was denied, the district court concluding that genuine issues of material fact existed with respect to those issues. They were: (1) whether the McGuire Contract required an easement in gross or an easement appurtenant; and (2) whether the parties intended that the easement would provide access to a public road.

The district court then held a bench trial on August 7, 1997. Lowery and Rabel conceded that the easement granted did not reach a public road and that the McGuires were entitled to specific performance in that regard. The testimony and evidence then addressed the remaining issue of whether the easement was intended to be an easement in gross or an easement appurtenant. After the trial, the district court entered an order in which it ruled that the McGuires were entitled to an easement appurtenant. In the same order, the district court required Lowery,...