Nathan R. Baker Bryner Farms, LLC Pat's Dream Project Trust and MME Trust ( 2014 )

IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 117APRIL TERM, A.D. 2014
September 18, 2014
NATHAN R. BAKER; BRYNER
FARMS, LLC; PAT’S DREAM
PROJECT TRUST; and MME TRUST,
Petitioners,
v.
S-13-0245
DAVID SPEAKS and ELIZABETH
SPEAKS,
Respondents.
NATHAN R. BAKER; BRYNER
FARMS, LLC; PAT’S DREAM
PROJECT TRUST; and MME TRUST,
Appellants
(Defendants),
S-13-0266
v.
DAVID SPEAKS and ELIZABETH
SPEAKS,
Appellees
(Plaintiffs).
Original Proceeding
Petition for Writ of Review – No. S-13-0245
Appeal from the District Court of Lincoln County – No. S-13-0266
The Honorable Richard L. Lavery Judge
Representing Petitioners/Appellants:
David H. Day of Day Shell & Liljenquist, L.C., Murray Utah.
Representing Respondents/Appellees:
Paula A. Fleck and Susan L. Combs of Holland & Hart LLP, Jackson, Wyoming.
Argument by Ms. Fleck.
Before BURKE, C.J., and HILL, KITE*, DAVIS, and FOX, JJ.
*Chief Justice at time of oral argument.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made
before final publication in the permanent volume.
KITE, Justice.
[¶1] This is the third appeal of matters related to Byron Baker’s faulty construction of a
cabin for David and Elizabeth Speaks. See Baker v. Speaks, 2008 WY 20, 177 P.3d 803(Wyo. 2008) (Baker I) and Baker v. Speaks, 2013 WY 24, 295 P.3d 847 (Wyo. 2013)
(Baker II). The current dispute concerns the availability of two properties for execution
to satisfy the Speaks’ judgment against Byron. The two properties were fraudulently
transferred by Byron and Rosemary Baker to their son, Nathan R. Baker, and then later
transferred to Bryner Farms, LLC, Pat’s Dream Project Trust and MME Trust
(collectively referred to as “the Baker Defendants”). The district court ruled the
undisputed facts established that Rosemary and Byron were not married when they took
title to the Corsi Ranchettes lot as tenants by the entirety. Consequently, Byron’s interest
was not entitled to protection from legal process. The district court also concluded the
Speaks brought the action to declare the Misty Meadows lot transaction fraudulent within
the applicable limitations period.
[¶2] We affirm.
ISSUES
[¶3] The Baker Defendants present the following issues in this consolidated appeal:
1. Whether the district court erred in holding that it had no
jurisdiction to adjudicate the marital status of Byron and
Rosemary Baker, and that the legal effect of its lack of
jurisdiction was that the Corsi Ranchettes Property was
not held by the Bakers as tenants by the entireties.
2. Whether the district court erred in granting summary
judgment on the basis that the applicable statute of
limitations for a cause of action under the Uniform
Fraudulent Conveyance Act does not expire until four
years after the conveyance alleged to be fraudulent is
actually discovered, and that it was Defendants’ burden to
prove the date of discovery.
The Speaks restate the issues as:
1. Did the district court properly grant summary judgment
regarding the marital status of Byron and Rosemary
Baker?
1
2. Did the district court properly determine that the Speaks’
claim regarding the Misty Meadows property was timely?
FACTS
[¶4] The factual and procedural histories of this matter are very complicated;
consequently, we will distill the current controversies down to their essentials. The Corsi
Ranchettes property was transferred by warranty deed to Byron and Rosemary Baker,
husband and wife, as tenants by the entirety in 1998. In 2003, Byron and Rosemary
conveyed the property to Nathan who then transferred it to Bryner Farms, LLC, a family-
owned company, in 2008. Bryner Farms conveyed the Corsi Ranchettes property to Pat’s
Dream Project Trust in 2010. Rosemary was the trustee of the trust.
[¶5] In Baker II, ¶ 54, 295 P.3d at 860, we affirmed the district court’s ruling that the
2003 transfer from Byron and Rosemary to Nathan was fraudulent under the Uniform
Fraudulent Conveyances Act, Wyo. Stat. Ann. §§ 34-14-101 through 34-14-113
(LexisNexis 2003) (UFCA). The Baker Defendants asserted the property was,
nevertheless, exempt from execution for the judgment against Byron, alone, because it
was held by Byron and Rosemary as tenants by the entirety. Because the record was
unclear as to Byron and Rosemary’s marital status, we remanded for a determination. Id.,
¶¶ 57-59, 62, 295 P.3d at 860-62.
[¶6] Back in district court, the Speaks moved for summary judgment claiming the
undisputed evidence established Rosemary and Byron were not married. The Baker
Defendants acknowledged they were not formally married when they took title to the
Corsi Ranchettes property, but requested the court to enter an order establishing their
marriage under Utah’s unsolemnnized marriage statute. The district court ruled it could
not change Byron’s and Rosemary’s marital status because they were not parties to the
action. Without an adjudication of marriage under the Utah statute, the evidence
established the Bakers were not married when they took title to the Corsi Ranchettes
property as tenants by the entirety. The district court, therefore, granted summary
judgment in favor of the Speaks apparently concluding the property was not held in a
valid tenancy by the entirety because the Bakers were not married when they took title to
it. The only issue remaining with regard to the Corsi Ranchettes lot after the district
court’s summary judgment decision was “whether Nathan Baker acted with actual
fraudulent intent at the time of the 2003 transfer of the Corsi Ranchettes property, and if
not, whether he gave $14,000 consideration for the fraudulent conveyance.” The Baker
Defendants filed a petition for a writ of review of the district court’s decision that Byron
and Rosemary were not married and we conditionally granted it.
[¶7] The Misty Meadows property presented a different issue. Rosemary and Byron
took title to that property as “Joint Tenants with full rights of survivorship, and not as
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tenants in common.” Rosemary and Byron fraudulently conveyed their interest in the
Misty Meadows lot to Nathan on October 1, 2003. Nathan conveyed the property to
Bryner Farms in 2008, and Bryner Farms transferred it to the MME Trust in 2010.
Rosemary was also the trustee of the MME Trust.
[¶8] The Bakers asserted the Speaks did not file their action to set aside the fraudulent
transfer of the Misty Meadow property within the limitations period set forth in the
Uniform Fraudulent Transfers Act, Wyo. Stat. Ann. § 34-14-210(a) (UFTA) and that
claim was, therefore barred. Consistent with our holding in Baker II, the district court
held the statute of limitations applicable to the UFCA, and not the UFTA, applied and the
Speaks’ claim was timely under that provision. Consequently, the district court found the
Speaks were entitled to execute on Byron’s interest in the Misty Meadows lot and entered
a partial final judgment under W.R.C.P. 54(b). The Baker Defendants appealed that
decision.
STANDARD OF REVIEW
[¶9] Summary judgments are governed by W.R.C.P. 56(c):
The judgment sought shall be rendered forthwith if the
pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.
We review a summary judgment de novo, using the same materials and following the
same standards as the district court. “We examine the record from the vantage point most
favorable to the party opposing the motion, and we give that party the benefit of all
favorable inferences which may fairly be drawn from the record.” Hasvold v. Park
County School Dist. No. 6, 2002 WY 65, ¶ 11, 45 P.3d 635, 637-38 (Wyo. 2002), quoting
Four Nine Gold, Inc. v. 71 Constr., Inc., 809 P.2d 236, 238 (Wyo. 1991) and Unicorn
Drilling, Inc. v. Heart Mountain Irrigation Dist., 3 P.3d 857, 860 (Wyo. 2000). See also
Alpine Lumber Co. v. Capital West Nat’l Bank, 2010 WY 62, ¶ 5, 231 P.3d 869, 870-71
(Wyo. 2010).
[¶10] We have described the respective obligations of summary judgment opponents in
this way:
“A genuine issue of material fact exists when a disputed fact,
if it were proven, would establish or refute an essential
element of a cause of action or a defense that the parties have
asserted.” The party requesting a summary judgment bears
the initial burden of establishing a prima facie case for
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summary judgment. If he carries his burden, “the party who is
opposing the motion for summary judgment must present
specific facts to demonstrate that a genuine issue of material
fact exists.” Id. We have explained the duties of the party
opposing a motion for summary judgment as follows:
After a movant has adequately supported the motion for
summary judgment, the opposing party must come forward
with competent evidence admissible at trial showing there are
genuine issues of material fact. The opposing party must
affirmatively set forth material, specific facts in opposition to
a motion for summary judgment, and cannot rely only upon
allegations and pleadings ..., and conclusory statements or
mere opinions are insufficient to satisfy the opposing party's
burden.
Hatton v. Energy Electric Co., 2006 WY 151, ¶ 9, 148 P.3d 8, 12-13 (Wyo. 2006)
(citations omitted). See also Fayard v. Design Committee of the Homestead Subdivision,
2010 WY 51, ¶ 21, 230 P.3d 299, 305 (Wyo. 2010). We can affirm a summary judgment
ruling on any legal ground appearing in the record. Retz v. Siebrandt, 2008 WY 44, ¶ 14,
181 P.3d 84, 90 (Wyo. 2008).
DISCUSSION
1. Rule 54(b) Certification
[¶11] After the district court certified its decision on the Misty Meadow lot as final
under W.R.C.P. 54(b), the Baker Defendants filed a notice of appeal on that claim. At
the same time, the Baker Defendants filed a petition for writ of review of the district
court’s decision on the Corsi Ranchettes lot. We issued the writ on a conditional basis,
subject to our later evaluation of the propriety of the Rule 54(b) certification.
[¶12] Although neither party challenged the district court’s decision to certify the Misty
Meadows decision as final under Rule 54(b), we may raise the issue on our own. See,
e.g., Griffin v. Bethesda Foundation, 609 P.2d 459, 460-61 (Wyo. 1980). Rule 54(b)
states:
(b) Judgment Upon Multiple Claims or Involving Multiple
Parties. – When more than one claim for relief is presented in
an action, whether as a claim, counterclaim, cross-claim, or
third-party claim, or when multiple parties are involved, the
court may direct the entry of a final judgment as to one or
more but fewer than all of the claims or parties only upon an
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express determination that there is no just reason for delay
and upon an express direction for the entry of judgment. In
the absence of such determination and direction, any order or
other form of decision, however designated, which
adjudicates fewer than all the claims or the rights and
liabilities of fewer than all the parties shall not terminate the
action as to any of the claims or parties, and the order or other
form of decision is subject to revision at any time before the
entry of judgment adjudicating all the claims and the rights
and liabilities of all the parties.
Certification under Rule 54(b) involves a multiple-step query.
First, the district court must determine that Rule 54(b)
applies, i.e., are there multiple claims or multiple parties as
contemplated by Rule 54(b)? The answer to this threshold
question is by nature one of law and this court gives no
special deference to the determination made by the district
court.
Once this question has been answered affirmatively,
the district court must move on to the second determination,
i.e., is there no just reason for delay? This determination is
reviewable only for an abuse of discretion. This is so because
such a decision is more in the nature of a factual
determination. The district court is called upon to weigh a
variety of factors and factual circumstances in reaching its
decision.
Griffin, 609 P.2d at 461 (citations omitted) (emphasis in original).
[¶13] In Griffin, supra, we concluded the Rule 54(b) certification requirements were not
satisfied. The elderly plaintiffs in that case presented two causes of action in contract and
two causes of action in tort against the nursing home that had agreed to care for them for
the remainder of their lives. Id. at 460. The district court granted summary judgment in
favor of the nursing home on the two tort claims and entered a Rule 54(b) certification.
Id. We held the Rule 54(b) certification was improper because the action did not present
multiple claims. All four claims were linked to the contract between the parties and
dependent on essentially the same facts; consequently, we concluded the issues were
inseparable and dismissed the appeal. Id. at 461.
[¶14] The case at bar is different. The Speaks are attempting to collect their judgment
by executing against two separate properties in which Byron previously had an interest.
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Some of the facts about the transfers of both properties are the same, i.e., Rosemary and
Byron conveyed their interests in both lots to Nathan on October 1, 2003, and on
February 27, 2008, Nathan transferred both lots to Bryner Farms, LLC. However, the
legal issues regarding each of the lots are distinct. Rosemary and Byron owned the Corsi
Ranchettes lot as tenants by the entirety and the outstanding legal issues pertain to the
validity of that tenancy and whether Nathan has any continuing interest in the property.
In particular, the district court’s decision did not resolve whether Nathan “acted with
actual fraudulent intent at the time of the 2003 transfer of the Corsi Ranchettes property,
and if not, whether he gave $14,000 consideration for the fraudulent conveyance.” On
the other hand, Rosemary and Byron owned the Misty Meadows property as joint tenants
with right of survivorship and the unresolved legal issue for that lot is whether the statute
of limitations had expired before the Speaks brought their claim to declare the transfer
fraudulent. Although Nathan is in the chain of title to the Misty Meadows property, there
is no claim that he has any potential continuing interest after the transfers were declared
fraudulent. These distinctions clearly demonstrate there are multiple claims involved.
[¶15] The question of whether, under Rule 54(b), there has been a proper disposition
of claims involving multiple parties can also present some difficulty. 10 Fed. Prac. and
Proc. Civ. § 2656 explains:
If there are multiple parties, there need only be one claim in
the action. Of course, all of the rights or liabilities of one or
more of the parties regarding that claim must have been
fully adjudicated. A decision that leaves a portion of the
claim pending as to all defendants does not fall within the
ambit of Rule 54(b)
(emphasis added). In Mott v. England, 604 P.2d 560, 563 (Wyo. 1979), we stated:
[A Rule 54(b) certification] “cannot be employed to permit
the appeal of a [p]artial adjudication of the rights of one or
more of the parties[.] [O]nly a [c]omplete disposition of the
claim relating to [a]t least one of the parties may be
certified.” 10 Wright & Miller, Federal Practice and
Procedure: Civil s 2653, p. 27 (1973). . . . The rationale for
such holding is to protect the policy against piecemeal
appeals. See Wright & Miller, supra, s 2658, p. 68 and s
2659, pp. 75-79.
Pat’s Dream Project Trust has record title to the Corsi Ranchettes lot, and MME Trust has
record title to the Misty Meadows lot. The district court’s decisions completely resolved
the trusts’ outstanding claims in both properties and all issues regarding the Misty
Meadows lot. The only outstanding issue in the entire case is whether Nathan Baker has
6
any interest in the Corsi Ranchettes lot which was subject to protection. Consequently,
the Rule 54(b) certification requirement of multiple claims and/or multiple parties was
satisfied.
[¶16] The district court also expressly found there was no just reason for delay and the
Speaks were entitled to execute on Byron’s interest in the Misty Meadows lot. See Mott,
604 P.2d at 563 (Rule 54(b) requires an express determination there is no just reason for
delay). The district court did not abuse its discretion in making that decision. The statute
of limitations was the only issue remaining as to the Misty Meadows lot, and the district
court ruled the period had not expired when the Speaks commenced their action. Like the
district court, we do not perceive of any reason why the execution action should not
proceed against Byron’s interest in the Misty Meadows property while the remaining
issues regarding the Corsi Ranchettes lot are being considered. The Rule 54(b)
certification of the Misty Meadows claim was appropriate, as was our decision to, in the
interest of judicial efficiency, grant the writ of review on the decision regarding the Corsi
Ranchettes lot.
2. Rosemary’s and Byron’s Marital Status
[¶17] The Baker Defendants claim Byron’s interest in the Corsi Ranchettes lot is not
subject to execution because it was held in a tenancy by the entirety with Rosemary.
“[P]roperty held in tenancy by the entirety is generally not subject to legal process to
satisfy a debt of only one spouse.” Estate of Marusich v. State ex. rel Dep’t of Health,
2013 WY 150, ¶ 18, 313 P.3d 1272, 1279 (Wyo. 2013). See also Baker II, ¶ 48, 295 P.3d
at 858. Since Rosemary was not a judgment debtor, the Speaks would not be allowed to
execute against any property held by Byron and Rosemary in a valid tenancy by the
entirety.
[¶18] In order to hold a legal tenancy by the entirety, the parties must be married. Baker
II, ¶ 47, 295 P.3d at 858. In the construction litigation, Rosemary and Byron stated, and
the district court found, they were not formally married. However, in this case, they
sought a ruling that they were married under Utah’s unsolemnized marriage statute. That
statute stated:
(1) A marriage which is not solemnized according to this
chapter shall be legal and valid if a court or administrative
order establishes that it arises out of a contract between a man
and a woman who:
(a) are of legal age and capable of giving consent;
(b) are legally capable of entering a solemnized
marriage under the provisions of this chapter;
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(c) have cohabited;
(d) mutually assume marital rights, duties, and
obligations; and
(e) who hold themselves out as and have acquired a
uniform and general reputation as husband and wife.
(2) The determination or establishment of a marriage under
this section shall occur during the relationship described in
Subsection (1), or within one year following the termination
of that relationship. Evidence of a marriage recognizable
under this section may be manifested in any form, and may be
proved under the same general rules of evidence as facts in
other cases.
U.C.A. § 30-1-4.5. A declaration of marriage under the statute relates back to the date
the parties entered into the relationship. Kelley v. Kelley, 9 P.3d 171, 180 (Utah Ct. App.
2000); Whyte v. Blair, 885 P.2d 793-94 (Utah 1994). However, Utah courts have stated
that a private pledge between the parties does not have legal status as a marriage unless it
is adjudicated. State v. Holm, 137 P.3d 726, 743 (Utah 2006).
[¶19] The district court concluded it did not have jurisdiction to declare Rosemary and
Byron were married under Utah’s unsolemnized marriage statute because neither of them
was a party to this action. The Baker Defendants argue that a court does not need to have
jurisdiction over a person to make a finding of fact about that person.1 They cite the
Restatement (Second) of Judgments § 7, cmt. a. (1982, updated 2014):
Jurisdiction to establish or terminate a status should be
distinguished from jurisdiction to determine the existence of a
status as an incidental question in litigation whose primary
objective is resolution of some other controversy. A court
may have territorial jurisdiction over an action in which a
1
The Speaks assert the Baker Defendants do not have standing to appeal the district court’s ruling that it
could not declare Rosemary and Byron were married because it did not have personal jurisdiction over
them. Standing is a legal issue that affects a court’s jurisdiction and may be raised at any time. Northern
Laramie Range Foundation v. Converse County Bd. of County Comm’rs, 2012 WY 158, ¶ 22, 290 P.3d
1063, 1073 (Wyo. 2012). A party has standing if it has a personal stake in the outcome of the case. Id., ¶
23, 290 P.3d at 1073. In this case, the Baker Defendants obviously have a personal stake in the outcome
of the case as they are the record owners of the properties, and a finding that Rosemary and Byron were
married would insulate Byron’s former interest in the Corsi Ranchettes lot from execution. We conclude,
therefore, that the Baker Defendants have standing to challenge the district court’s ruling on appeal.
8
question of status is thus incidentally determined without
having jurisdiction to entertain a proceeding whose purpose is
the determination of the status.
(citations omitted). The Restatement provision actually supports the district court’s
decision. The Baker Defendants were not asking the district court to make a simple
factual finding that Rosemary and Byron were married; they were asking it to establish a
marriage where none had existed before.
[¶20] As a general matter, the rights of non-parties should not be determined without
their presence. See Koch v. J & J Ranch, LLC, 2013 WY 51, ¶ 32, 299 P.3d 689, 695-96
(Wyo. 2013). The Baker Defendants do not direct us to any Utah cases where the court
or administrative order under the unsolemnized marriage act was entered by a non-Utah
court without the purported spouses being involved. In our research we have discovered
Utah cases where third parties initiated or were involved in unsolemnized marriage
declaration matters, but not without the couple somehow being involved. For example, in
State v. Green, 99 P.3d 820, 823 (Utah 2004), the State of Utah brought an action to
validate an unsolemnized marriage between Thomas Green and Linda Kunz in a criminal
action against Green for bigamy. Green was obviously involved in the marriage
determination because he was the criminal defendant and Linda Kunz was allowed to
intervene. Id.[¶21] If there were a pre-existing court or administrative order declaring the Bakers
married under Utah law, the Wyoming district court could have recognized their marital
status consistent with our precedent and the Restatement provision cited above. See, e.g.,
Christiansen v. Christiansen, 2011 WY 90, ¶ 10, 253 P.3d 153, 156 (Wyo. 2011); Jim’s
Water Service v. Eayrs, 590 P.2d 1346, 1350 (Wyo. 1979), overruled on other grounds,
Loomer v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 2004 WY 47, ¶ 18, 88 P.3d
1036, 1042 (Wyo. 2004). In Baker II, ¶ 49, 295 P.3d at 859, we stated: “Wyoming does
not recognize common law marriage, but it does honor common law marriages concluded
elsewhere, at least for certain purposes.” In other words, we would honor a Utah
unsolemnized marriage if it had been previously declared in an appropriate action with
the proper parties. In this case, the Baker Defendants are asking the Wyoming judiciary
to enter a court order that would change Rosemary’s and Byron’s marital status without
them being before the court or personally involved in that adjudication. We are not
willing to take that step.2
2
The Baker Defendants assert that, if Rosemary’s and Byron’s presence is required to adjudicate the
marriage issue, they should be joined as indispensable parties under W.R.C.P. 19. However, the Baker
Defendants do not direct us to a motion to join indispensible parties or other request for joinder in the
district court. Moreover, as our discussion has made clear, this is not simply a matter of indispensible
parties being absent from a case. It is a request by parties outside of the marital relationship to declare a
relationship exists without the purported spouses being present and making that request. Under these
circumstances not only are the parties incorrect, the claim has not been properly presented. Such an
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[¶22] The Baker Defendants claim it is appropriate for us to declare Rosemary and
Byron married for the purposes of this litigation, without making the ruling binding upon
them. If we were to accept that invitation, we would be creating a potential for
inconsistent decisions. See generally Worman v. Carver, 2002 WY 59, ¶ 13, 44 P.3d 82,
86 (Wyo. 2002) (discussing the purposes of preclusion doctrines, which include
preventing multiple lawsuits with inconsistent results). In fact, a declaration that
Rosemary and Byron Baker were married would contradict an earlier ruling by the
district court in the construction case, Baker I. Rosemary and Byron were actually
involved in that case, and the district court determined that they were not married when
the Speaks’ contract was negotiated in 1999 or while construction was in progress in
1999 and 2000.
[¶23] In Baker II, ¶ 9, 295 P.3d at 850, we concluded it was unnecessary for the district
court to make a finding as to Rosemary’s and Byron’s marital status in the construction
action. Nevertheless, it is clear from the district court’s decision letter in the construction
action that the finding was based upon their representations and part of the context for its
ruling that Rosemary was not Byron’s partner in the construction business, thereby
releasing her from liability for the faulty construction. Had a judgment been entered
against her because she was found to be Bryon’s business partner, the Corsi Ranchettes
lot would have been subject to execution regardless of whether or not it was held in
tenancy by the entirety. Baker II, ¶ 55, 295 P.3d at 860 (stating “[p]roperty held as
tenants by the entireties is subject to execution by a creditor holding a judgment against
both husband and wife”).
[¶24] The evidence from the construction case indicates that Byron’s attorney took care
to point out that the parties were not married, and Byron certainly did not contest the
finding on appeal in Baker I. However, in this case, it is beneficial to the Baker
Defendants for Rosemary and Byron to be married, so that is their position. This is a
classic example of why an express adjudication as to the existence of an unsolemnized
marriage must be made in an action involving the purported spouses to avoid the
circumstance where they (or others) assert they are married or not married at different
times to promote their own interests.
[¶25] Given there is no administrative or court order adjudicating Byron and Rosemary
married under Utah’s unsolemnized marriage act and they were not formally married
when they took title to the Corsi Ranchettes lot, the undisputed evidence established the
Bakers were not married at the relevant time. Accordingly, they could not create a valid
tenancy by the entirety. The district court properly granted summary judgment in favor
of the Speaks on that issue.
action would be like a third party asking for a couple to be divorced in order to advance its legal claim.
That clearly is not appropriate.
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3. Statute of Limitations
[¶26] Rosemary and Byron fraudulently transferred the Corsi Ranchettes and Misty
Meadows lots to their son, Nathan, on October 1, 2003, and the transfers were recorded
on October 6, 2003. The district court entered judgment in favor of the Speaks and
against Byron in the construction case on June 7, 2007. The Speaks obtained a title
report in September 2007 (while the Baker I appeal was pending), showing the transfers.3
We affirmed the judgment against Byron on February 22, 2008. Baker I, supra.
[¶27] The Speaks filed their initial fraudulent transfer complaint on March 4, 2008,
seeking a declaration the Corsi Ranchettes lot was fraudulently transferred and should be
subject to execution for Byron’s debt. In their second amended complaint, filed on
September 10, 2009, the Speaks asserted the transfer of the Misty Meadows lot was also
fraudulent and that property should be subject to execution, as well. On September 21,
2009, the Baker Defendants moved to dismiss the second amended complaint claiming
the statute of limitations under the UFTA had expired. The district court denied the
motion to dismiss on June 3, 2010, but did not explain its reasoning.
[¶28] In Baker II, ¶¶ 37-38, 295 P.3d at 856, we confirmed that the UFCA, rather than
the UFTA, applied to the 2003 fraudulent transfers. Yet, on remand after Baker II, the
Speaks continued to rely on the UFTA in support of their statute of limitations argument.
In the order on appeal here, the district court noted the Baker Defendant’s incorrect
reliance on the UFTA statute of limitations:
The [Baker] Defendants’ statute of limitations
argument is wrong on the merits. Their motion to dismiss the
second amended complaint argues that the Plaintiffs
discovered the 2003 fraudulent conveyance of the Misty
Meadows property in September, 2007, when they ran a title
report, but they didn’t plead it until September 10, 2009,
Second Amended Complaint, more than a year later. This
argument relies on the statute of limitations under the UFTA.
See Wyo. Stat. Ann. § 34-14-210(a)(i) (LexisNexis 2013).
But the 2003 transfers are covered by the UFCA. Courts
apply the general statute of limitations for fraud to the UFCA.
3
There are suggestions in the record that the Speaks did not discover the Misty Meadows transfer until
sometime later. See, Baker II, ¶ 15, 295 P.3d at 851. Under our standard of review, we “examine the
record from the vantage point most favorable to the party opposing the motion, and we give that party the
benefit of all favorable inferences which may fairly be drawn from the record.” Hasvold, ¶ 11, 45 P.3d at
637-38. We, therefore, give the Baker Defendants the benefit of the doubt and assume the Speaks
actually discovered the transfer in September 2007, when they became aware of the Corsi Ranchettes lot
transfer.
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Wyoming has a four year statute of limitations for fraud,
which begins to run when the fraud is discovered. Thus, the
claim for the 2003 fraudulent conveyance of the Misty
Meadows property, which they pleaded two years after
discovering it, was timely.
(some citations and footnote omitted).
[¶29] On appeal, the Baker Defendants do not assert that the district court erred as a
matter of law by applying the UFCA rather than the UFTA. Instead, they argue for the
first time that the Speaks’ claim of fraudulent transfer of the Misty Meadows lot was not
timely under the UFCA. The fact that the UFCA, rather than the UFTA, applies to this
action should not have come as a surprise to the Baker Defendants because the relevant
fraudulent transactions occurred in 2003 and the UFTA did not go into effect until 2006.
In addition, we made it abundantly clear in Baker II, supra, that the UFCA governed this
action. Given their argument about the UFCA was raised for the first time on appeal, we
refuse to consider it. See, e.g., Shepard v. Beck, 2007 WY 53, ¶ 10, 154 P.3d 982, 986
(Wyo. 2007); Sundance Mountain Resort, Inc. v. Union Telephone Co., 2007 WY 11, ¶
17, 150 P.3d 191, 196 (Wyo. 2007).
[¶30] Affirmed.
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