Revelle v. Schultz
| Decision Date | 25 August 1988 |
| Docket Number | No. 88-115,88-115 |
| Citation | 759 P.2d 1255 |
| Parties | Margaret REVELLE, Appellant (Defendant), v. Clifford and Ella SCHULTZ, husband and wife, and Perry and Shelie Elliott, husband and wife, Appellees (Plaintiffs). |
| Court | Wyoming Supreme Court |
Bruce P. Badley of Badley & Rasmussen, P.C., Sheridan, for appellant.
Rebecca W. Thomson of Burgess & Davis, Sheridan, for appellees.
Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.
The appellant, Margaret Revelle (Revelle), in this real estate right-of-way case, appeals from an order of the trial court granting summary judgment in favor of appellees as plaintiffs, Mr. and Mrs. Clifford Schultz and Mr. and Mrs. Perry Elliott (Schultz-Elliott), on their complaint for declaratory and injunctive relief. Schultz-Elliott successfully claimed that Revelle had improperly constructed a chain link fence which denied their free access to the rear portion of their mid-block properties over a recorded thirteen foot wide, nonexclusive right-of-way that first traversed Revelle's street abutted location. Revelle phrases the issue on appeal as:
We affirm.
The undisputed facts in this case are that Revelle and Schultz-Elliott own subdivision lots and live in the Granville Third Addition in Sheridan, Wyoming. Protective covenants governing the subdivision were recorded in the Sheridan County Clerk's office on December 13, 1983, as providing in pertinent part:
Despite this covenant, Revelle constructed a chain link fence that had gates in it and which obstructed right-of-way usage by other subdivision lot owners. Schultz-Elliott, as included, first asked Revelle to move the fence, and that failing, filed a complaint seeking a declaration that they had the right to the nonexclusive use of the rear thirteen feet of Revelle's Lot 8 to use as a perpetual right-of-way for access to their homes as granted by the Declaration of Protective Covenants. Additionally, they prayed for an injunction restraining Revelle from maintaining a fence or other structure or object which blocked their access in the right-of-way. 1 Revelle, in defense, filed a motion pursuant to Rule 12(b)(7), Wyoming Rules of Civil Procedure to dismiss the complaint asserting a failure by Schultz-Elliott to join indispensable parties 2 as provided for in Rule 19, W.R.C.P. The right-of-way claimants filed a motion for summary judgment asserting there were no material facts in dispute and they were entitled to judgment as a matter of law. The trial court denied the Revelle motion to dismiss and granted the Schultz-Elliott motion for summary judgment.
Revelle asserts, at the time she made her down payment on her lot, that the seller/developer told her the right-of-way across her purchased lot was to be for limited usage, i.e., for such things as bringing in wood or sod or to park a recreational vehicle, but not to be used as a driveway for the other seven affected lots. She states the covenants were filed after she made her down payment, but before the lot was deeded to her. It is her position that these circumstances create an issue of fact involving fraud and/or misrepresentation, which requires joinder of the seller/developer who still owns four of the lots. Revelle then concludes that § 1-37-113, W.S.1977, which is part of Wyoming's version of the Uniform Declaratory Judgments Act, provides that "all persons shall be made parties who have or claim any interest which would be affected by the declaration," and requires joinder of the seller/developer. In addition to the seller/developer, she also contends that other lot owners who are affected by the right-of-way and the three mortgagees whose security might be diminished by its existence are indispensable parties. Although the reason is not entirely clear from the Revelle brief, she also asserts that the City of Sheridan is an indispensable party because the proceeding affects the validity of a city ordinance. Revelle does not describe nor enumerate the ordinance in her brief nor is there any development of this issue in the body of the brief providing determinative argument or citation of authority. We fail to see how a city ordinance interfaces with fencing of a recorded right-of-way as a defense, and the brief did not enlighten us.
The only issue briefed by Revelle in this appeal is the assertion that the trial court erred in denying her motion to join indispensable parties as required by § 1-37-113, W.S.1977. We shall not decide this issue in light of the trial court's decision, except as it is intrinsic to the injunction request. A decision on the indispensable party issue would therefore be advisory.
In Kane v. Kane, Wyo., 706 P.2d 676, 679 (1985), we held that we need not address issues regarding the propriety of a judgment premised on Wyoming's version of the Uniform Declaratory Judgments Act where there was in the record another proper basis for upholding the judgment of the trial...
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American Holidays, Inc. v. Foxtail Owners Ass'n
...are sufficiently clear, we construe it without reference to attendant facts and circumstances or extrinsic evidence. Revelle v. Schultz, 759 P.2d 1255, 1258 (Wyo.1988). The Declaration contained a provision, quoted in part above, subjecting the property to its terms and creating a covenant ......
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Olsen v. Kilpatrick
...in the record another proper basis for upholding the judgment of the trial court." Revelle v. Schultz, 759 P.2d 1255, 1258 (Wyo.1988). In Revelle, this Court found [t]he trial court did, indeed, include in its order a provision declaring the rights of the parties vis-a-vis the covenant as c......
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Klutznick v. Thulin, 91-5
...located within the west sixty feet of the property to be twenty feet in width. The easement agreement speaks for itself. Revelle v. Schultz, 759 P.2d 1255 (Wyo.1988). The written language used leads unerringly to the conclusion as it states that the easement is twenty feet and should not th......