Tram Tower Townhouse Ass'n v. Weiner

• Decision Date: 06 May 2022
• Docket Number: S-21-0142,S-21-0143
• Parties: TRAM TOWER TOWNHOUSE ASSOCIATION, Appellant (Intervenor-Defendant and Counter/Cross-Claimant), v. BERYL WEINER, Appellee (Plaintiff and Counterclaim Defendant), and LEONARD DVORSON; NEAL NORMAN and MELISSA NORMAN, as Trustees of the Norman Holdings Trust under agreement dated July 12, 2005; ACONCAGUA CAPITAL, LLC; CLIFF BRUDER; ANN BRUDER; MARGARET ARMSTRONG; JAMES A. KRENTLER, as Trustee of the James Krentler Trust under agreement dated April 8, 1987; FRANK PERNA, JR. a/k/a FRANK PERNA; JOHN L. KEMMERER, III; CONSTANCE KEMMERER; and MICHAEL HEALY, Appellees (Defendants and Crossclaim Defendants). LEONARD DVORSON; NEAL NORMAN and MELISSA NORMAN, as Trustees of the Norman Holdings Trust under agreement dated July 12, 2005; CLIFF BRUDER and ANN BRUDER; FRANK PERNA, JR. a/k/a FRANK PERNA; and ACONCAGUA CAPITAL, LLC, Appellants (Defendants and Crossclaim Defendants), v. BERYL WEINER, Appellee (Plaintiff and Counterclaim Defendant), and TRAM TOWER TOWNHOUSE ASSOCIATION, Appellee (Intervenor-Defendant and Counter/Cross-Claimant), and MARGARET ARMSTRONG; JAMES A. KRENTLER, as Trustee of the James Krentler Trust under agreement dated April 8, 1987; JOHN L. KEMMERER, III; CONSTANCE KEMMERER; and MICHAEL HEALY, Appellees (Defendants and Crossclaim Defendants).
• Court: Wyoming Supreme Court

2022 WY 58

TRAM TOWER TOWNHOUSE ASSOCIATION, Appellant (Intervenor-Defendant and Counter/Cross-Claimant), v. BERYL WEINER, Appellee (Plaintiff and Counterclaim Defendant), and LEONARD DVORSON; NEAL NORMAN and MELISSA NORMAN, as Trustees of the Norman Holdings Trust under agreement dated July 12, 2005; ACONCAGUA CAPITAL, LLC; CLIFF BRUDER; ANN BRUDER; MARGARET ARMSTRONG; JAMES A. KRENTLER, as Trustee of the James Krentler Trust under agreement dated April 8, 1987; FRANK PERNA, JR. a/k/a FRANK PERNA; JOHN L. KEMMERER, III; CONSTANCE KEMMERER; and MICHAEL HEALY, Appellees (Defendants and Crossclaim Defendants). LEONARD DVORSON; NEAL NORMAN and MELISSA NORMAN, as Trustees of the Norman Holdings Trust under agreement dated July 12, 2005; CLIFF BRUDER and ANN BRUDER; FRANK PERNA, JR. a/k/a FRANK PERNA; and ACONCAGUA CAPITAL, LLC, Appellants (Defendants and Crossclaim Defendants), v. BERYL WEINER, Appellee (Plaintiff and Counterclaim Defendant), and TRAM TOWER TOWNHOUSE ASSOCIATION, Appellee (Intervenor-Defendant and Counter/Cross-Claimant), and MARGARET ARMSTRONG; JAMES A. KRENTLER, as Trustee of the James Krentler Trust under agreement dated April 8, 1987; JOHN L. KEMMERER, III; CONSTANCE KEMMERER; and MICHAEL HEALY, Appellees (Defendants and Crossclaim Defendants).

Nos. S-21-0142, S-21-0143

Supreme Court of Wyoming

May 6, 2022

Appeal from the District Court of Teton County The Honorable Joseph B. Bluemel, Judge

Representing Tram Tower Townhouse Association:

Mark D. Sullivan of Mark D. Sullivan, PC, Wilson, Wyoming.

Representing Margaret Armstrong, Michael Healy, John L Kemmerer, III, Constance Kemmerer, and Beryl Weiner:

David Clark of Ragain & Clark, PC, Worland, Wyoming; Dale Cottam of Bailey Stock Harmon Cottam, Afton, Wyoming Christopher Hawks of Hawks & Associates, LC, Jackson, Wyoming; Robert C. Jarosh of Hirst Applegate, LLP, Cheyenne, Wyoming. Argument by Mr. Clark and Mr. Jarosh.

Representing Leonard Dvorson, Neal and Melissa Norman, Aconcagua Capital, LLC, Cliff Bruder, Ann Bruder, and Frank Perna, Jr.:

Paul E. D'Amours of Hess D'Amours & Krieger, LLC, Jackson, Wyoming.

Representing James A. Krentler:

No appearance.

Before FOX, C.J., and DAVIS ^[*] , KAUTZ, BOOMGAARDEN, and GRAY, JJ.

BOOMGAARDEN, JUSTICE.

[¶1] This is an ongoing dispute about who owns an undeveloped .53-acre parcel in Teton Village, Teton County, Wyoming, and whether it should be sold or conserved. The conflicting ownership claims are the result of a series of unfortunate events, beginning with the faulty construction of townhouses in Teton Village, Wyoming; leading to the 1998 conveyance of adjoining land (the "Phase II Land") in settlement of claims against the developers; the formation of an LLC (the 1998 LLC), to hold the property; the administrative dissolution of the 1998 LLC; and the attempt to resurrect it with the formation of a new LLC (the 2006 LLC). The many parties assert different ownership theories, depending on which entity they claim to derive their interest from. The parties involved are many, and the procedural history is long, complex, and unfinished. To date, the district court has issued several summary judgment orders and related rulings, which we affirm.

ISSUES

[¶2] The parties raise multiple issues in two appeals, ^[1] which we consolidated for briefing and argument.

[¶3] The threshold issue common to both appeals is whether the receivership order pertaining to the 2006 LLC is an appealable order under W.R.A.P. 1.05(e)(2).

[¶4] If it is, then the dispositive issues in the Association's appeal are:

I. Should we convert the Association's appeal of the district court's summary judgment ruling that the 1998 conveyance was legal to a writ of review under W.R.A.P. 13.02?

II. Did the district court err in ruling that the 1998 conveyance was legal?

[¶5] And the dispositive issue in the Dvorson Appellants' appeal is:

Did the district court abuse its discretion by failing to order the receiver to maintain the 2006 LLC as a going concern until all appeals are complete?

FACTS

Background

[¶6] In the early 1990s, Paul McCollister and Tram Tower Development Company (the Developers) finished a 12-unit residential development known as the Tram Tower Townhouse Project. It soon became apparent the development suffered design and construction defects. For example, the residential building roofs were designed and constructed in a manner that resulted in heavy ice formation and interior leaking; the common area roof also leaked. The Association paid hundreds of thousands of dollars to fix these problems and then assessed those costs back to the townhouse owners.

[¶7] In 1996, the Association retained the law firm of Ranck Schwartz & Day, LLC to sue various individuals and entities, including the Developers. Attorney William P Schwartz, who handled the litigation, planned to name the Association as the plaintiff until he learned it might not have standing to bring certain claims. To avoid this problem he named the individual townhouse owners as plaintiffs on the complaint. Plaintiffs sought damages, as well as declaratory judgment that the Phase II Land could not be annexed into the Tram Tower Townhouse Project.

[¶8] After filing the complaint, Schwartz discovered a potential conflict of interest among the townhouse owners, so he met with the Association's Board-which consisted of Perna, G. Moser, and Weiner-and its general counsel, Hank Phibbs, ^[2] to discuss the problem. They decided the best solution would be for the individual townhouse owners to assign their claims against the Developers to the Association. Schwartz sent the townhouse owners a letter explaining the conflict of interest and proposed solution, along with an Assignment and Conflict Waiver form. The Association's President, Perna, followed up with a letter to the individual owners explaining that if they assigned their claims to the Association, they would receive a credit against further assessments for repairs and litigation. Once all townhouse owners assigned their claims to the Association, Schwartz substituted the Association as the sole plaintiff in the lawsuit.

[¶9] After the Association learned the Developers lacked insurance and had limited resources to satisfy any judgment, it sought to recover the Phase II Land as settlement. Before mediation, the Phase II Land appraised at $550, 000.

[¶10] Under the mediated settlement agreement, the Developers agreed to pay the Association $100, 000 and convey the Phase II Land to the Association or its designee. Schwartz and Perna presented the settlement agreement to the Board for approval. With the Board's approval in hand, Schwartz then sent the townhouse owners a letter explaining the proposed settlement and further informing them that the Board intended to explore the possibility of donating the Phase II Land for a conservation easement.

[¶11] At the Board's direction, Schwartz consulted with Bill Hutton, a California attorney with expertise in conservation easements. Hutton advised that the Phase II Land should be conveyed to a Limited Liability Company, the members of which would be the Association members. That way, if the Phase II Land were donated for conservation, the individual LLC members could claim a charitable tax deduction. The Board unanimously agreed to create an LLC to take title to the Phase II Land and presented this to the Association members for consideration at their December 1998 annual meeting.

[¶12] On December 30, 1998, Perna signed a Mutual Release and Settlement Agreement (Settlement Agreement) with the Developers. The Settlement Agreement stated in relevant part:

1. Payment to Association. Within ten (10) days of the effective date of this Agreement, $100, 000 shall be paid to the Association on behalf of [the Developers].

2. Conveyance to Association. On or before December 31, 1998, [the Developers] will execute and deliver to legal counsel for the Association an original Warranty Deed in the form attached hereto as Exhibit 1 (which deed has been prepared by the Association's legal counsel) conveying the Phase II property to the Association's designee, Gros Ventre, LLC, a Wyoming flexible limited liability company.

Schwartz organized Gros Ventre, LLC (the 1998 LLC), listing its members as the Association members. A Warranty Deed conveying the Phase II Land from the Developers to the 1998 LLC was executed and recorded on December 31, 1998.

[¶13] Following this conveyance, Schwartz approached several entities to explore whether they were interested in taking a conservation easement on the Phase II Land. None were.

[¶14] The 1998 LLC was administratively dissolved in 2001 for failure to file annual reports. By the time this was discovered in 2005, it was too late to reinstate the 1998 LLC. Believing dissolution of the 1998 LLC resulted in an automatic distribution of the Phase II Land to its members as tenants in common, Phibbs recommended those individuals quitclaim their interests in the Phase II Land to a newly formed entity-Gros Ventre, LLC (the 2006 LLC). Most did.^[3]

[¶15] A dispute about who owned the Phase II Land and whether to sell it arose in 2014, when Weiner and G. Moser received an offer to purchase the Phase II Land for $2, 750, 000. Perna, Weiner, and G. Moser, who had been managers of the 1998 LLC, engaged the law firm of Levy Coleman Brodie, LLP, to advise them on several issues, including who held legal title to the land. The law firm concluded that the 2001 administrative dissolution of the 1998 LLC did not result in a distribution of the Phase II Land to its members and, therefore, the 1998 LLC still held legal title to the land. It further concluded that the 1998 LLC was in a period of winding up and continued to exist for that purpose.

[¶16] ...