Original Proceeding Petition for Writ of Review District
Court of Johnson County The Honorable William J. Edelman,
Representing Petitioner: Christopher M. Wages, The Wages
Group, LLC, Buffalo, Wyoming.
Representing Respondent: Anthony T. Wendtland, Wendtland
& Wendtland, LLP., Sheridan, Wyoming.
Before, DAVIS, C.J., and BURKE [*] , FOX, KAUTZ, and BOOMGAARDEN, JJ.
After a bench trial, the circuit court cancelled the mobile
home sale between Respondent, Burton Construction, Inc., and
Petitioner, Justin James Larson, finding that the parties
made a mutual mistake in drafting their contract. On appeal,
the district court reversed the circuit court's decision
and found that Mr. Larson breached the contract. We granted
Mr. Larson's petition for a writ of review. We affirm in
part, reverse in part, and remand for further proceedings.
We reframe the parties' issues as follows:
the district court erroneously overturn the circuit
court's application of the doctrine of mutual mistake?
the district court err when it found that Mr. Larson breached
the contract before Burton Construction, Inc.'s
performance was due by making a clearly erroneous finding of
fact, and as a matter of law?
In December 2015, Ken Burton, on behalf of Burton
Construction, Inc.,  and Mr. Larson entered into a written
contract (the Contract) in which Mr. Larson agreed to
purchase from Burton a 2015 Skyline mobile home for $43, 000.
The Contract was a "form" contract, consisting of
boilerplate provisions and blank lines on which parties could
enter information. Mr. Larson's agent completed the form
by hand, obtained Mr. Larson's signature, and delivered
the document to Burton with $500 in earnest money. Burton
went through the Contract carefully, made a few minor
changes, and countersigned it.
Although the Skyline mobile home was new and the parties
intended to convey a new mobile home, the form was designed
for the sale of a used mobile home. Thus, the Contract
required Burton, as the "Owner" of the mobile home,
to execute and deliver a Wyoming title at closing
(handwritten portions in italics):
6. At closing, Owner shall execute and deliver a Wyoming
title and Bill of Sale free and clear of all liens and
encumbrances except: all will be free and clear.
7. Title shall be conveyed to the following named
purchaser(s): Justin James Larson as Sole
Owner. Title and the Bill of Sale shall be executed but
escrowed if sold under contract.
8. Title shall be merchantable in the Seller, except as
stated in this paragraph. Subject to payment or tender as
above provided and compliance with other terms and conditions
hereunder by Purchaser, the Seller shall execute and deliver
a good and sufficient title in favor of those persons named
in Paragraph 7 above, and a good and sufficient Bill of Sale,
and deliver the same to said Purchaser at closing, which
shall occur on or before January 15, 2016, conveying
said personal properties free and clear of all liens and
(a) Personal property taxes for 2016, which shall be
prorated to date of closing;
(b) Purchaser shall be responsible for sales tax, if any.
Despite the Contract's clear language, Burton testified
that it was not his custom to deliver a Wyoming title to
purchasers of new mobile homes at closing. As a reseller,
Burton did not take title himself. Burton would purchase the
mobile home from the manufacturer with borrowed funds, and
the manufacturer would deliver the mobile home with a
Manufacturer's Certificate of Origin (MCO). The lender
held the MCO as collateral until the mobile home was sold. At
closing, Burton would use the purchaser's funds to repay
the lender, and the lender would return the MCO. Burton would
collect sales tax from the purchaser, submit it to the state,
and record the taxes as paid on the Bill of Sale. Under his
reseller's tax exemption, Burton would pay no sales tax
on his initial purchase from the manufacturer so long as he
resold the mobile home directly to the consumer. After
closing, Burton or the purchaser would bring the MCO and the
Bill of Sale to the County Treasurer to issue a Wyoming title
in the purchaser's name as the first assignee of the
Accordingly, Burton never intended to deliver a Wyoming title
to Mr. Larson at closing because "[t]hat's not how
you do it." Burton testified that he
"couldn't" deliver the Wyoming title at closing
for three reasons. First, he would have to repay his lender
in full to obtain the MCO necessary to issue title, which he
presumably could not do before receiving Mr. Larson's
purchase money. Second, if Burton obtained a Wyoming title
before closing, he would become the first "owner"
of the mobile home, which would require him to pay sales tax
on his initial purchase of the mobile home from the
manufacturer, and, because the State of Wyoming taxes only
the first sale of a mobile home, Mr. Larson would pay no
sales tax on his purchase from Burton. Third, Burton
testified that the manufacturer's warranty extended only
to the first titleholder. Mr. Larson, as the second
titleholder, would be deprived of the warranty.
Burton's realtor, however, did not know the difference
between an MCO and a Wyoming title. Thus, each time the
escrow officer inquired, the realtor confirmed that Burton
would deliver a Wyoming title for the closing. Based on the
language of the Contract, confirmed by the realtor's
assurances, the escrow officer expected Burton to deliver a
Wyoming title at closing and therefore prepared settlement
statements indicating that no sales tax was due from Mr.
When the parties agreed to move the closing date forward by
two days, the escrow officer and the parties' agents
rushed to assemble the paperwork. Shortly before closing, for
the first time, Burton instructed his realtor to pick up the
MCO from his lender and bring it to the escrow officer. When
Mr. Larson's agent arrived at closing, she discovered
that Burton had provided an MCO instead of a Wyoming title,
which added $1, 806 in sales tax to Mr. Larson's purchase
obligation. She called Mr. Larson, who was outside the
A. [Mr. Larson] . . . She actually called me and told me what
the deal was; that I was required to pay $1, 800 more for
sales tax that was never agreed upon anywhere, or had ever
showed up on anywhere, even in our closing paper that we had.
And, I said, "Well, that's not what we agreed to. We
agreed to the 43, 000-something.
Q. [Burton's counsel] Well, did you ever look at the
Contract and ask her about Page 2, Line 61, that said you
promised to pay the sales tax at that point?
A. No, because I saw up here on the -- What line is it? --
like, 49 and 50, it says all will be free and clear.
She'll deliver a Wyoming Bill of Sale and a, and a Title,
and it will all be free and clear, meaning, to me, that there
was nothing above and beyond after what we had agreed upon
the price of the house.
I had to pay the closing cost and whatever. The only thing I
would have to pay after that would be the ten or $15 at the
Courthouse to transfer the Title from Mr. Burton's name
to my name.
Mr. Larson never entered the building. He cancelled the
closing before Burton arrived, refusing to complete the sale
upon the delivery of an MCO instead of a title. That same
day, Mr. Larson sent a letter to Burton requesting the return
of his earnest money and declaring the Contract null and void
due to, among other things, Burton's failure to deliver a
Wyoming title. Burton's attempts to reschedule the
closing before the January 15 deadline failed. Mr. Larson
would not close the sale without Burton providing a Wyoming
title, which Burton would not do.
Burton brought suit in circuit court for breach of contract,
seeking either specific performance or damages, as well as
attorney fees and costs. After a bench trial, the circuit
court found that the parties made a mutual mistake, cancelled
the Contract, and ordered Burton to return Mr. Larson's
earnest money. On appeal, the district court reversed, ruling
that the circuit court erroneously applied the doctrine of
mutual mistake, that it was "factually unknown"
whether Burton delivered a Wyoming title at closing, and that
Mr. Larson breached the Contract when he refused to attend
closing and to pay sales tax. Pursuant to W.R.A.P. 13, we
granted Mr. Larson's petition for writ of review.
Did the district court erroneously overturn the circuit
court's application of the doctrine of mutual
The district court held that the circuit court erred as a
matter of law when it applied the doctrine of mutual mistake.
We review a court's conclusions of law de novo. Ohio
Cas. Ins. Co. v. W.N. McMurry Constr. Co., 2010 WY 57,
¶ 14, 230 P.3d 312, 320 (Wyo. 2010). A court may reform
or cancel a written contract that, due to a "mutual
mistake" of the parties, does not accurately reflect the
parties' true intentions. 66 Am. Jur. 2d Reformation
of Instruments § 20 (May 2018 update); Lawrence
v. City of Rawlins, 2010 WY 7, ¶ 14 n.4, 224 P.3d
862, 868 n.4 (Wyo. 2010); Hansen v. Little Bear Inn
Co., 9 P.3d 960, 964 (Wyo. 2000). To establish a claim
of mutual mistake, the proponent must prove three elements by
clear and convincing evidence: (1) there was a prior
agreement that the written instrument undertook to evidence;
(2) a mistake occurred in the drafting of the instrument; and
(3) there was no fraud or inequitable conduct on the part of
a party. Gumpel v. Copperleaf Homeowners Ass'n,
Inc., 2017 WY 46, ¶ 75, 393 P.3d 1279, 1299 (Wyo.
2017) (citing Mathis v. Wendling, ...