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Martin v. DeWitt

Supreme Court of Wyoming

September 9, 2014

PHILLIP DEWITT and JEANNE M. PRIETO, Appellees (Plaintiffs)

Page 124

Appeal from the District Court of Natrona County. The Honorable David B. Park, Judge.

For Appellant: John C. Hoard, Attorney at Law, Casper, Wyoming; Kenneth Rosellini, Attorney at Law, Clifton, New Jersey.

For Appellees: Thomas F. Reese of Beatty, Wozniak & Reese, Casper, Wyoming.

Before BURKE, C.J., and HILL, KITE[*], DAVIS, and FOX, JJ.


Page 125

DAVIS, Justice.

[¶1] Appellant Catherine Martin contends that the district court committed errors relating to the partition sale of a property she owned as a tenant in common with two relatives. Appellant focuses her appeal on a judgment determining that she had exclusive possession of the property and owed the other tenants in common rent, as well as an order approving public sale of the property pursuant to Wyo. Stat. Ann. § 1-32-101 et seq. (LexisNexis 2013). We affirm.


[¶2] 1. Did the district court err in finding that Appellant possessed the property exclusively without the consent and agreement of the other cotenants and ousted them from it?

2. Did the evidence support the district court's findings as to the amount of rent Appellant owed?

3. Can a party to a partition action purchase the property at a public auction under Wyo. Stat. Ann. § 1-32-111, and if so, can he bid in the value of his interest in the property and part of a judgment rather than paying cash for it?

4. Is a tenant in common who occupies the property entitled to a homestead exemption under Wyo. Stat. Ann. 1-20-101 et seq. (LexisNexis 2013) when it is sold as the result of partition?


[¶3] Appellant and Appellees Phillip DeWitt and Jeanne Prieto are tenants in common of a single family home in Casper, Wyoming. Appellees filed a petition for partition, and they also claimed that Appellant owed them rent for her exclusive use of the property. Appellant answered and counterclaimed for partition as well.

[¶4] A bench trial was held to determine whether Appellant had ousted the other two tenants in common and owed them rent. Several witnesses evidently testified, but the trial was not reported and therefore no transcript exists for our review. Appellant filed a statement of what she claimed was the evidence presented, and Appellees responded, disagreeing in material respects as to what had been developed in the hearing. The court did not settle and approve the statement as required by Wyoming Rule of Appellate Procedure 3.03, which sets forth the mandatory procedure to establish an accurate record of the evidence for appellate review:

If no report of the evidence or proceedings at a hearing or trial was made, or if a transcript is unavailable, appellant may prepare a statement of the evidence or proceedings from the best available means including appellant's recollection. The statement shall be filed and served on appellee within 35 days of the filing of the notice of appeal. Appellee may file and serve objections or propose amendments within 15 days after service. The trial court shall, within 10 days, enter its order settling and approving the statement of evidence, which shall be included by the clerk of the trial court in the record on appeal.

W.R.A.P. 3.03 (emphasis added). We have explained that the rule " clearly requires trial court approval of a statement before it can properly be considered settled and become part of the record." Nw. Bldg. Co., LLC v. Nw. Distrib. Co., Inc., 2012 WY 113, ¶ 31, 285 P.3d 239, 247 (Wyo. 2012) (quoting TOC v. TND, 2002 WY 76, ¶ 3 n.1, 46 P.3d 863, 867 n.1 (Wyo. 2002)). Because the district court did not settle Appellant's statement of the evidence, it cannot be considered in this appeal. Maynard v. Maynard, 585 P.2d 1201, 1202 (Wyo. 1978) (per curiam).

[¶5] When there is no transcript of the trial proceedings or a settled statement of the evidence, we accept the trial court's findings as the only basis for deciding issues pertaining to the accuracy of those findings or the sufficiency of the evidence. Golden v. Guion, 2013 WY 45, ¶ 4, 299 P.3d 95, 96 (Wyo. 2013); Barrett-Oliver v. Quast, 2013 WY 71, ¶ 10,

Page 126

302 P.3d 909, 912 (Wyo. 2013). " In the absence of anything to refute them, we will sustain the trial court's findings, and we assume that the evidence presented was sufficient to support those findings." Golden, ¶ 4, 299 P.3d at 96.

[¶6] Since this Court has been provided neither a transcript of the trial nor a settled statement of the evidence, we accept the following findings the district court included in its judgment:

Findings of Fact

1. The parties own the house at [], Casper, Wyoming.
2. The parties have agreed to partition and a separate order has been entered concerning partition. That order is incorporated herein by reference.
3. The issues before the Court in the trial were whether Defendant had exclusively possessed the house at [], and if so what rent does the Defendant owe.
4. It was undisputed that the residence at [] is a single family residence.
5. It was undisputed that the Plaintiffs, Prieto and Dewitt and the Defendant, Ms. Martin, do not have a good relationship and could not reside in the same residence.
6. It was undisputed that Ms. Martin moved into the home at [] in June of 2008 and spent seven months of 2008 there.
7. It was undisputed that at least one of the Plaintiffs repeatedly asked the Defendant to either pay rent or move out of the residence at [].
8. It was undisputed that the Defendant resided in the residence at [] from January to August of 2009, for a ...

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