Wyman v. Wyman, Civil Action 19-cv-03437-NRN

CourtUnited States District Courts. 10th Circuit. United States District Court of Colorado
Writing for the CourtN. Reid Neureiter United States Magistrate Judge
PartiesTHOMAS LOUIS WYMAN, Plaintiff, v. LOUIS MILTON WYMAN, Defendant.
Docket NumberCivil Action 19-cv-03437-NRN
Decision Date05 August 2021



Civil Action No. 19-cv-03437-NRN

United States District Court, D. Colorado

August 5, 2021


(Dkt. ##48 & 49)

N. Reid Neureiter United States Magistrate Judge

This matter before me upon the consent of the parties to magistrate judge jurisdiction (Dkt. #13) and the Order of Reference entered by Chief Judge Philip A. Brimmer on March 19, 2020 (Dkt. #14). Now before me are Defendant Louis Milton Wyman (“Louis”) and Plaintiff Thomas Louis Wyman's (“Thomas”) Motions for Summary Judgment, filed March 19, 2021 (Dkt. ##48 & 49, respectively). I have carefully considered the motions, the responses (Dkt. ##51 & 52), and replies (Dkt. ##53 & 54). I heard oral argument from the parties (see Dkt. #57) and have taken judicial notice of the file. Now being fully informed and for the reasons discussed below, it is hereby ORDERED that the subject motions (Dkt. #48 & 49) are GRANTED IN PART and DENIED IN PART.


Louis Wyman is Thomas Wyman's father. In August 1984, Thomas was working on the family ranch. While Louis and his wife were on vacation, a creditor sought to repossess some ranching equipment. Thomas paid off the balance owed, and when Louis returned, Thomas asked his father to be reimbursed. Louis executed a promissory note dated October 1, 1984, in the amount of $15, 850.42, with 10% simple interest (the “1984 Note”).

On September 8, 1993, Louis executed another promissory note in favor of Thomas in the amount of $37, 374.46 (the “1993 Note”). Thomas contends that the 1993 Note was meant to supersede the 1984 Note. Louis never made any payments on either note.

Louis executed estate planning documents in March 2001. Thomas was the only one of Louis's ten children to be excluded from inheritance. Louis told his son Arthur to inform Thomas that he was being disinherited because of the 1993 Note, but if Thomas forgave the Note, he would share equally in Louis's estate, which could be considerable due to the ranch's value.[2] When Thomas and Arthur spoke, Arthur also stated that Louis was planning on obtaining a $5 million life insurance policy that would name each child as equal beneficiary.

After speaking with Arthur, Thomas reached out to his father. He claims that Louis “strongly suggested” that he would be an equal beneficiary of Louis's estate and flatly stated that Thomas would be beneficiary under the life insurance policy if Thomas forgave the 1993 Note. Thomas says that he agreed to do so because he would then receive a minimum of $500, 000 from Louis's estate and life insurance policy. The purported agreement was not reduced to writing.

In June 2001, Louis applied for a life insurance policy with a minimum estimated death benefit of $15, 000, 000. On July 1, 2001, Thomas wrote “FORGIVEN” on both notes and mailed them to Louis. In the accompanying letter, Thomas wrote:

Now, I recognize that these pieces of paper are worthless The statute of limitations on civil matters is seven years and so these are fodder for the trash can. That's not really what makes them worthless though. If you don't feel you owe me this money or the interest then let's forget them. Talk it over with [Louis's wife] Paula. I will accept your charity on this matter on my behalf. I am sorry if this matter has caused you such trouble over the years. I'm writing “forgiven” across these notes along with the date any my signature

Dkt. #48-8.

Louis and Thomas did not discuss the purported agreement thereafter. It was only in 2017, after Thomas became involved in probate litigation regarding a different estate, that he wrote to his father's attorney to inquire about the status of the life insurance policy and estate planning documents. He then learned for the first time that Louis had allowed the life insurance policy to lapse and did not amend his estate plan to include Thomas.

It turns out that Louis did revise his estate plan in June 2018 to include Thomas as a beneficiary, although Thomas only learned of the revision during the course of this litigation. However, the way things currently stand, Thomas's interest in Louis's estate is contingent; Louis's wife shall inherit all his property if she survives him. If Louis's wife survives Louis, Thomas gets nothing-no life insurance and no part of the estate.

Thomas asserts four claims of relief against Louis: (1) breach of contract (the 1993 Note)[3]; (2) breach of contract (the oral agreement regarding the life insurance policy); (3) promissory estoppel; and (4) unjust enrichment. Louis filed a counterclaim for abuse of process.


The purpose of a motion for summary judgment pursuant to Fed.R.Civ.P. 56 is to assess whether trial is necessary. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Under Fed.R.Civ.P. 56(c), summary judgment shall be granted if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” An issue is genuine if the evidence is such that a reasonable jury could resolve the issue in favor of the nonmoving party. Anderson v. Liberty Lobby, Inc., 277 U.S. 242, 248 (1986). A fact is material if it might affect the outcome of the case under the governing substantive law. Id.

The burden is on the movant to show the absence of a genuine issue of material fact. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670-71 (10th Cir. 1998) (citing Celotex, 477 U.S. at 323). When the movant does not bear the ultimate burden of persuasion at trial, the “movant may make its prima facie demonstration [of the absence of a genuine issue of material fact] simply by pointing out to the court a lack of evidence for the nonmovant on an essential element of the nonmovant's claim.” Id. at 671. If the movant carries the initial burden of making a prima facie showing of a lack of evidence, the burden shifts to the nonmovant to put forth sufficient evidence for each essential element of his claim such that a reasonable jury could find in his favor. See Anderson, 277 U.S. at 248; Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). The nonmovant must go beyond the allegations and denials of his pleadings and provide admissible evidence, which the Court views in the light most favorable to him. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Panis v. Mission Hills Bank, N.A., 60 F.3d 1486, 1490 (10th Cir. 1995) (citing Celotex, 477 U.S. at 324). Conclusory statements based merely on conjecture, speculation, or subjective belief are not competent summary judgment evidence. Bones v. Honeywell Int'l, Inc., 366 F.3d 869, 875 (10th Cir. 2004). The nonmoving party's evidence must be more than “mere reargument of [his] case or a denial of an opponent's allegation” or it will be disregarded. See 10B Charles Alan Wright et al., Federal Practice and Procedure § 2738 (4th ed. 2017).

When ruling on a motion for summary judgment, a court may consider only admissible evidence. Johnson v. Weld Cnty., Colo., 594 F.3d 1202, 1209-10 (10th Cir. 2010). The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment. Concrete Works, Inc., v. City & Cnty. of Denver, 36 F.3d 1513, 1517 (10th Cir. 1994). At the summary judgment stage of litigation, a plaintiff's version of the facts must find support in the record. Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009). “When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.” Scott v. Harris, 550 U.S. 372, 380 (2007); Thomson, 584 F.3d at 1312.

Only documents that meet the evidentiary requirements of Fed.R.Civ.P. 56 may be considered for purposes of summary judgment. Rule 56(c) provides that:

(1) A party asserting that a fact cannot be or is genuinely disputed must support the assertion by
(A) citing to particular parts of materials in the record including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials[.]
. . .
(3) Materials Not Cited. The court need consider only the cited materials, but it may consider other materials in the record.
(4) Affidavits or Declarations. An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated.

Fed. R. Civ. P. 56(c)(1)-(4).


Thomas seeks (1) partial summary judgment on his second claim for relief for breach of oral contract regarding the forgiveness of the 1993 note in exchange for being named as a beneficiary of Louis's will and life insurance policy; (2) summary judgment on his equitable claims of unjust enrichment and promissory estoppel; and (3) summary judgment on Louis's claim for abuse of process. Louis, for his part, moves for summary judgment on all of Thomas's remaining claims for relief.

I. Breach of Contract Claim

In his second claim for relief, Thomas alleges that he and his father entered into an oral contract in which Thomas agreed to forgive the outstanding promissory note in exchange for Louis (1) reinstating Thomas in his will, and (2) maintaining a life insurance policy and making Thomas a beneficiary thereof. Both parties request summary judgment in their favor on this claim.

a. Contract to Make a Will


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