Stewart Title Guar. Co. v. Tilden

• Decision Date: 27 April 2005
• Docket Number: No. 04-147.,04-147.
• Parties: STEWART TITLE GUARANTY COMPANY, a Texas corporation, Appellant (Defendant), v. Samuel J. TILDEN, a Wyoming resident, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

110 P.3d 865

2005 WY 53

STEWART TITLE GUARANTY COMPANY, a Texas corporation, Appellant (Defendant), v. Samuel J. TILDEN, a Wyoming resident, Appellee (Plaintiff).

No. 04-147.

Supreme Court of Wyoming.

April 27, 2005.

Representing Appellant: Andrea L. Richard, P.C., of Jackson, Wyoming, and John A. Coppede of Rothgerber Johnson & Lyons LLP, Cheyenne, Wyoming.

Representing Appellee: Jessica Rutzick, Jackson, Wyoming.

Before HILL, C.J., and GOLDEN, KITE, and VOIGT, JJ., and STEBNER, D.J., Retired.

GOLDEN, Justice.

[¶ 1] Stewart Title Guaranty Company (Stewart Title) issued a policy of title insurance to Samuel Tilden. When a defect in the insured title appeared and the parties could not resolve the issue otherwise, the parties entered into arbitration as required by the contract of insurance. The dispute was eventually resolved. During the course of the arbitration proceedings the arbitrator made a specific finding that Stewart Title failed to cure the defect in a reasonably diligent manner but Tilden suffered no actual damages. Tilden requested attorney's fees but the arbitrator determined that he had no authority to grant attorney's fees as part of the arbitration. Tilden brought this current action for the sole purpose of recovering attorney's fees pursuant to Wyo. Stat. Ann. § 26-15-124(c) (LexisNexis 2003).¹ Stewart Title argues that § 26-15-124(c) does not create a private cause of action for attorney's fees and thus the district court should dismiss the action. Finding that an action for the recovery of attorney's fees pursuant to § 26-15-124(c) has been properly brought under these specific circumstances, we affirm the grant of summary judgment.

ISSUES

[¶ 2] Stewart Title presents the following issues:

I. What is the plain and ordinary meaning of "judgment" as used in Wyo. Stat. § 26-15-124(c)?

II. Was Appellee entitled to judgment as a matter of law on his claim for attorney's fees under Wyo. Stat. § 26-15-124(c) without a judgment determining that Stewart Title refused, unreasonably or without cause, to pay the full amount of a covered loss[?]

III. Can Appellee maintain a stand-alone claim for attorney's fees under Wyo. Stat. § 26-15-124(c) without a judgment determining that Stewart Title refused, unreasonably or without cause, to pay the full amount of a loss covered by the insurance policy[?]

IV. Did the district court err in ruling that Stewart Title was collaterally estopped from litigating the reasonableness of its claim denial where the arbitrator's decision on that issue did not result in a judgment on the merits, the decision was contrary to law, Stewart Title did not have a full and fair opportunity to litigate the present issue(s) in the arbitration, and where the issue decided by the arbitrator was not identical to the issue before the district court?

Tilden generally agrees with this presentation of the issues.

FACTS

[¶ 3] This is the second time the underlying facts have given rise to an appeal before this Court. See Stewart Title Guar. Co. v. Tilden, 2003 WY 31, 64 P.3d 739 (Wyo.2003) (Stewart Title I)

. The underlying facts are the same. Tilden purchased a policy of title insurance from Stewart Title. Tilden discovered a title defect and presented a claim to Stewart Title, which Stewart Title initially denied. The issue went to arbitration as required under the contract of insurance. Two years later the arbitrator determined that the policy of insurance did cover Tilden's claim, Stewart Title had failed to cure the defect in a reasonably diligent manner, but that Tilden had suffered no actual damages. On the question of the reasonableness of Stewart Title's actions, the arbitrator, in his Final Award, expressly held that "Stewart Title did not cure the title defect in a reasonably diligent manner" and that the "delay [in taking action to cure the title] was unreasonable." The arbitrator denied Tilden's request for attorney's fees in the arbitration, concluding that he had no authority under the contract or the terms of arbitration to award attorney's fees.

[¶ 4] Tilden, still seeking attorney's fees, filed an action in district court for the confirmation of the arbitration award pursuant to Wyo. Stat. Ann. § 1-36-113 (LexisNexis 2003).² It is that action that gave rise to Stewart Title I. The Stewart Title I court held that the district court could not confirm the arbitration award. "Stewart's satisfaction of the award effectively rendered the issue moot, and the district court should have dismissed the confirmation motion unless it determined that live issues remained to be litigated." Stewart Title I, ¶ 9. Tilden argued that the issue of attorney's fees remained to be litigated. In response, the Stewart Title I court stated "we cannot see that a judgment on the award is necessary to receive a further additional judgment permitted by law." Id. at ¶ 10. The court remanded the case with directions to dismiss the underlying action.

[¶ 5] Tilden next filed the instant action. Tilden's complaint traced the underlying course of events and the different proceedings to date. The only claim for relief presented by Tilden in his complaint was the award of attorney's fees pursuant to § 26-15-124(c). Tilden filed a motion for partial summary judgment on the issue of the unreasonableness of the denial of his claim and the delay in curing the title defect by Stewart Title. Tilden argued that the finding of unreasonableness by the arbitrator constituted res judicata or collateral estoppel against Stewart Title and therefore the finding was binding and precluded Stewart Title from relitigating the issue. The district court granted the motion for partial summary judgment and directed Tilden to "submit an application for attorney's fees under Wyo. Stat. § 26-15-124(c)." Stewart Title appealed.

DISCUSSION

[¶ 6] Although not raised by either party in their respective briefs, we must first determine whether this Court has jurisdiction to hear this appeal. The motion was one for partial summary judgment. The order granting that motion is a nonappealable interlocutory order. This Court would only have jurisdiction to hear an appeal of the order if the district court certified the order as an appealable judgment pursuant to W.R.C.P. 54(b).³ Hayes v. Nielson, 568 P.2d 905, 906 (Wyo.1977) ("No appeal will lie from an order granting a partial summary judgment because such an order is not a final order under Rule 54(b), W.R.C.P."); see also Ambariantz v. Cunningham, 460 P.2d 216, 217 (Wyo.1969)

. The instant order contains no express certification that there is no just reason for delay or an express direction for the entry of such a judgment. Barker Bros., Inc. v. Barker-Taylor, 823 P.2d 1204, 1207 (Wyo.1992). The order, therefore, is not appealable.

[¶ 7] One option available to this Court, however, is to convert the appeal into a writ of review.⁴ See generally In re General Adjudication of All Rights to Use Water in Big Horn River System, 803 P.2d 61, 68 (Wyo.1990)

("There is no inhibition in our court rules, the state constitution, or any legislative mandate that precludes this court from, on its own motion, considering a notice of appeal as a petition for writ of certiorari and proceeding with review on that basis.") As this Court has previously explained:

[Appellant] should have filed a petition for writ of review in this Court; instead, she filed a notice of appeal. Upon initial consideration of that notice of appeal the Court had two options: (1) dismiss the appeal, explaining that a petition for writ of review was the proper vehicle for bringing the district court's order before this Court; or, (2) treat the notice of appeal as a petition for writ of review. In this particular case, the Court opted to treat the notice of appeal as a petition for writ of review. We caution practitioners that in many, if not most instances, this Court will dismiss appeals filed under these circumstances.

Kittles v. Rocky Mountain Recovery, Inc., 1 P.3d 1220, 1222 (Wyo.2000). With that caution still in mind, this Court will, albeit with reluctance, convert this appeal into a writ of review. We do so only because Stewart Title presents only questions of law relating to jurisdiction and Tilden's ability to state a claim upon which relief may be granted. Since these issues are fundamental to the action, an immediate review by this Court is in the best interest of judicial economy. We will continue our review as if the issues were properly before us on a writ of review.

[¶ 8] The first issue that must be resolved is whether § 26-15-124(c) creates a private right of action. If it does not, then the complaint should be dismissed for lack of jurisdiction. The issue, however, is not as complex as it might first appear and already has been decided. In Herrig v. Herrig, 844 P.2d 487, 494-95 (Wyo.1992), the court determined that § 26-15-124(c) does create a private right of action. At issue was whether third parties could bring an independent claim for attorney's fees pursuant to § 26-15-124(c). Thus, the Herrig court was directly presented with the issue of whether § 26-15-124(c) creates a private right of action. That court determined that § 26-15-124(c) did create a private right of action, although, under the particular circumstances of that case, the third parties could not state a claim upon which relief could be granted under the statute. Specifically, in discussing the statute, the Herrig court stated:

The plain language of subsections (a) and (b) imposes a statutory duty on insurers to accept and pay, or reject, claims for insurance benefits within forty-five days of receiving adequate proof of a loss. In the event that the insurer rejected a claim or failed to timely act upon a claim, subsection (c) contemplates that the insured or his beneficiary would bring a contractual action against its insurer for claimed benefits. Subsection (c) provides that a court may, in addition to entering a judgment for the

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