Walsh v. Walsh

Decision Date20 November 1992
Docket NumberNo. 90-192,90-192
Citation841 P.2d 831
PartiesDiane S. WALSH, Appellant (Plaintiff), v. Thomas WALSH; Thomas Walsh, Jr.; and Kenneth Edward Walsh, Appellees (Defendants).
CourtWyoming Supreme Court

Harry G. Bondi, Casper, for appellant.

Joe R. Wilmetti, Casper, for appellees.


URBIGKIT, Justice.

Appellant, Diane Walsh, appeals from a summary judgment in favor of appellees, her present or past husband and two sons. In her complaint, she seeks a reconveyance of real property from the two children to herself and her husband/ex-husband. 1 Appellant alleged that her husband's overbearing, threatening and demeaning manner "took away" her will to resist his efforts to gift her marital properties to their two sons. She argues for reconveyance based on her husband's undue influence and the existence of a confidential relationship. We find, however, that appellant failed to demonstrate existence of a genuine issue of material fact. Consequently, we affirm the grant of summary judgment in favor of appellees.

Both parties raise essentially the same issue on appeal. Did the district court improperly grant appellees' motion for summary judgment based upon a finding that there was no genuine issue of material fact? More specifically, we examine the circumstances in this case to determine whether a factual issue is presented based on alleged undue influence and the violation of a confidential relationship resulting from a conveyance of an interest in real estate. This is not a case in which we can take satisfaction in result, but it is also not a case where the law justifies restoration to the donor of her gift which she subsequently demanded be returned.


Since the record is not fully developed, the somewhat imprecise chronology which follows is gleaned from affidavits presented by both sides in support of motions for summary judgment, 2 as well as from appellate briefs which include consistent statements of fact filed by the respective parties.

For some time prior to 1987, appellant and her husband, Thomas Walsh, Sr., owned their residence in Casper, Wyoming and a cabin in Dubois, Wyoming. 3 The husband had also acquired a four-plex apartment building in Casper for which he faced foreclosure in 1987 because the mortgage and operating expenses regularly exceeded rental income. The record indicates that both appellant and husband feared foreclosure and a possible deficiency judgment which might affect their marital assets. Consequently, they conveyed ownership of the Casper residence and the Dubois cabin to their two sons, appellees Thomas Walsh, Jr., and Kenneth Edward Walsh, as a "gift" 4 by execution and recordation of quitclaim deeds in April 1987.

The parties now dispute who dreamed up the transfers and whether or not the appellant's participation in deed execution was coerced. Appellant contends that she was left mentally disabled following surgery for a brain tumor in 1983 and that her husband's verbal abuse during the course of their marriage reduced her ability and willingness to act on her own behalf. She also claims that after the properties were transferred, Thomas Walsh, Jr. made an oral promise to appellant that both properties would be reconveyed once the apartment foreclosure issue passed. On the other hand, appellees argue that the property transfers were appellant's idea and that she was the "moving force" behind the transaction. Both sons further contend that no promise of reconveyance was ever made.

Following the transfers, the husband filed for divorce, contending that the transferred properties should not be considered as marital property in the divorce proceeding. Subsequently, appellant brought her action seeking reconveyance of the two parcels of real property to the marital estate. After submission of affidavits, pretrial memoranda, and a brief in support of appellees' motion for summary judgment, 5 the district court conducted a hearing following which the district court denied her motion for summary judgment and granted the motion of her husband and two sons for summary judgment. This appeal followed.


We review this summary judgment appeal under W.R.C.P. 56 in accordance with our well-established standard of review. We examine the affidavits and material presented to the district court in support of and in opposition to a motion for summary judgment according to the same standard applied by that court in deciding the motion. Matthews v. Fetzner, 768 P.2d 590, 592 (Wyo.1989). The moving party has the initial burden of showing that no genuine issue of material fact exists and that summary judgment should be granted as a matter of law. W.R.C.P. 56(c); Stundon v. Sterling, 736 P.2d 317, 318 (Wyo.1987); Cordova v. Gosar, 719 P.2d 625 (Wyo.1986). A material fact is characterized as a fact which, if proven, would have the effect of establishing or refuting an essential element of the claim or defense asserted by the parties. Parker v. Haller, 751 P.2d 372, 375 (Wyo.1988). If movant makes a showing that no genuine issue of material fact exists, the burden then shifts to the non-moving party to come forward with specific facts to demonstrate that a genuine issue of material fact does exist. Nelson v. Crimson Enterprises, Inc., 777 P.2d 73, 76 (Wyo.1989). Conclusive affidavits or general allegations are insufficient and specific facts must be shown. W.R.C.P. 56(e); Davenport v. Epperly, 744 P.2d 1110, 1112 (Wyo.1987); Jones Land and Livestock Co. v. Federal Land Bank of Omaha, 733 P.2d 258, 263 (Wyo.1987).

We then examine the record in the light most favorable to the non-moving party, granting her all favorable inferences which can properly be drawn from the evidence. Wessel v. Mapco, Inc., 752 P.2d 1363, 1367 (Wyo.1988). If there is a dispute over a material fact which leads to conflicting interpretations or if reasonable minds might differ, then summary judgment is improper. Wyoming Game and Fish Com'n v. Mills Co., 701 P.2d 819, 821 (Wyo.1985). On the other hand, a motion for summary judgment brought by a defendant "should be sustained in the absence of a real and material fact issue considering movant's burden, respondent's right to the benefit of all favorable inferences and any reasonable doubt, with credibility questions to be resolved by trial." Cordova, 719 P.2d at 640. When granted, summary judgment is a drastic remedy which deprives a litigant of the right to a trial and must be utilized with caution and restraint. Kobielusz v. Wilson, 701 P.2d 559, 560 (Wyo.1985).


Appellant asserts that the district court erred by granting a summary judgment in favor of her husband and their two sons. On appeal, she contends that her husband's exercise of undue influence within the context of a confidential relationship creates a genuine issue of material fact and entitles her to a trial on the merits.

In Estate of Short, 785 P.2d 1167, 1170 (Wyo.1990) (quoting Matter of Estate of Obra, 749 P.2d 272, 277 (Wyo.1988)), we identified the three elements of undue influence: " '(1) opportunity to control; (2) a condition permitting subversion; and (3) activity on the part of the person charged.' " Appellant's complaint and affidavit affirmatively allege that the husband had the opportunity to control appellant, that her impaired mental capacity created a condition permitting his subversion of her will, and that he did, in fact, exercise undue influence as charged. In effect, appellant argues that the application of undue influence upon a susceptible grantor warrants reconveyance of the transferred properties despite the fact that the grantees of the properties were themselves uninvolved in the exercise of any wrongful persuasion or persuasion of any kind.

We discussed the effect of undue influence in Johnson v. Soulis, 542 P.2d 867, 874 (Wyo.1975) (quoting A.L.I. Restatement, Contracts § 497 (1932)): 6

"Where one party is under the domination of another, or by virtue of the relation between them is justified in assuming that the other party will not act in a manner inconsistent with his welfare, a transaction induced by unfair persuasion of the latter, is induced by undue influence and is voidable."

Appellant seeks to avoid the transaction by having the district court find that she was unfairly persuaded by her husband to make a gift of the properties in question to their sons. Appellant cites Johnson for support, but then jumps to the proposition that since her husband exercised undue influence over her, their sons, as recipients of the properties, must demonstrate that the transaction was fair and conducted in good faith--something which appellant argues her sons have failed to do.

It is significant that appellant makes no claim that her sons, as grantees of the properties, did themselves provide any encouragement or exercise undue influence. The only allegation appellant raises against her sons is that Thomas Walsh, Jr. promised to reconvey the properties to appellant and her husband after the threat of foreclosure had passed. This allegation is of no consequence, however, since the alleged promise was made after the transfer of ownership. 7 Thus, though she attempts to hold her sons liable for the behavior of their father, the success of her argument hinges on whether or not she can avoid the transaction based on the alleged undue influence of her husband.

This court has stated that a mere family relationship does not give rise to a confidential relationship. Zullig v. Zullig, 502 P.2d 198, 202 (Wyo.1972). However, we have also stated that once certain circumstances are present, a confidential relationship may be established and the activities of those so related will be zealously scrutinized. Perry v. Vaught, 624 P.2d 776, 783 (Wyo.1981) (citing Bergren v. Bergren, 77 Wyo. 438, 317 P.2d 1101 (1957)); Brug v. Case, 600 P.2d 710 (Wyo.1979); Baldwin...

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  • Breitenstine v. Breitenstine
    • United States
    • Wyoming Supreme Court
    • January 30, 2003
    ...transfer, the transfer takes place during the pendency or threat of litigations, and hurried or secret transactions. See Walsh v. Walsh, 841 P.2d 831, 839 (Wyo.1992); Consumers United Ins. Co. v. Smith, 644 A.2d 1328 (D.C. 1994); Diss v. Agri Bus. Int'l, 670 N.E.2d 97 (Ind.Ct.App.1996); Ber......
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