Glenn J. Gumpel and Merrily Gumpel, Trustees of the Glenn and Merrily Gumpel Family Trust Dated October 8, 2001 v. Copperleaf Homeowners Association, Inc., a Wyoming Non-Profit Corporation Roderick Fuller and Kathleen A. Fuller, Trustees of the Roderick and Kathleen Fuller Family Trust Dated January 16, 1997 Mooncrest Ranch A/K/A Mooncrest Ranch, Inc., a Wyoming Corporation Successor By Merger To Rocking M Ranch, Inc. and Wells Fargo Bank, N.A. ( 2017 )

IN THE SUPREME COURT, STATE OF WYOMING
2017 WY 46APRIL TERM, A.D. 2017
May 2, 2017
GLENN J. GUMPEL and MERRILY
GUMPEL, Trustees of the Glenn and Merrily
Gumpel Family Trust dated October 8, 2001,
Appellants
(Plaintiffs/Third Party Defendants),
v.
COPPERLEAF HOMEOWNERS
ASSOCIATION, INC., a Wyoming non-profit
S-16-0167
corporation; RODERICK FULLER and
KATHLEEN A. FULLER, Trustees of the
Roderick and Kathleen Fuller Family Trust
dated January 16, 1997; MOONCREST
RANCH a/k/a Mooncrest Ranch, Inc., a
Wyoming Corporation successor by merger to
Rocking M Ranch, Inc.; and WELLS FARGO
BANK, N.A.
Appellees
(Defendants/Third Party Plaintiffs).
Appeal from the District Court of Park County
The Honorable Marvin L. Tyler, Judge
Representing Appellants:
Matthew W. Kim-Miller and Jordan P. Helvic of Holland & Hart LLP, Jackson,
WY. Argument by Mr. Kim-Miller.
Representing Appellees:
Steven F. Freudenthal of Freudenthal & Bonds, P.C., Cheyenne, WY.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
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 any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.
[¶1] This is an appeal from the district court’s ruling in a dispute between two
neighboring Park County communities, the China Wall Tract and the Copperleaf
Subdivision. The court interpreted the China Wall Tract’s restrictive covenants in a
manner that will allow Copperleaf property owners access to and through certain areas in
the China Wall Tract. The Gumpel Family Trust, dated October 8, 2001 (Gumpel Trust),
owns property in the China Wall Tract, and Glenn and Merrily Gumpel, as trustees and
on behalf of the Gumpel Trust, appeal the district court’s ruling.
[¶2] We conclude that the district court did not err in its interpretation of the covenants,
but we modify the court’s ruling to clarify that an “invitee” and an “owner” do not share
equivalent rights under the covenants. We thus affirm, as modified.
ISSUES
[¶3] Gumpel Trust states the issues on appeal as follows:
A. Whether, based on a de novo review, the
ambiguous “2005 Covenants” should have been interpreted in
light of its surrounding circumstances so as to prohibit the
Copperleaf “Tract O” owner, the Copperleaf lot owners and
the Copperleaf HOA from accessing areas in the “China Wall
Tract” outside of the Copperleaf Tract O open space?
B. Whether, based on a de novo review, the 2005
Covenants should have been reformed because of mutual
mistake to prohibit the Copperleaf Tract O owner, the
Copperleaf lot owners and the Copperleaf HOA from
accessing areas in the China Wall Tract outside of the
Copperleaf Tract O open space?
C. Whether, as a matter of law, based on the
language of the 2005 Covenants, the Copperleaf lot owners
and Copperleaf HOA are prohibited from accessing areas in
the China Wall Tract outside of the Copperleaf Tract O open
space?
D. Whether the 2005 Covenants’ purported
easement over the “recreational land” and hiking and riding
trails near the rocky geological feature known as the “china
wall” is void under W.S. § 34-1-141(a)?
1
FACTS
[¶4] This dispute involves two neighboring Park County communities, the China Wall
Tract and the Copperleaf Subdivision. The China Wall Tract is located in Section 15, T.
52N, R. 105W, 6th P.M., Park County, Wyoming (Section 15). It consists of the Section
15 lands north of the centerline of the North Fork of the Shoshone River (North Fork) and
includes approximately 600 acres owned by ten different land owners. Copperleaf
Subdivision is a located to the south of the China Wall Tract and includes property in
Sections 15, 22, and 23 T. 52N, R. 105W, 6th P.M., Park County, Wyoming. It consists
of 131 single family lots, a tract for condominiums, and four additional tracts of land, and
it encompasses a total of approximately 553 acres. Tract O is the largest tract, at
approximately 292 acres, and is dedicated to open space.
[¶5] Tract O extends into Section 15 and into the China Wall Tract, but otherwise most
of the Copperleaf Subdivision is located south of Section 15 and south of the North
Fork1. The following map depicts how these communities are situated, as well as the
Gumpel Trust property2:
1
A few of the Copperleaf Subdivision single family lots extend into Section 15, but they are all south of
the North Fork.
2
This map was extracted from Gumpel Trust's opening brief. Appellee Copperleaf objected to Gumpel
Trust’s inclusion of the map in its brief because the map is not in the record. We understand Copperleaf’s
objection, and our use of the map here is for demonstrative purposes only. The map was not submitted as
evidence in the district court proceedings, and our reference to it does not make it record evidence.
2
rraaoiial Forest
'MILL
Gumpel
lot and
house
Copperleaf lots
Tract O
Bridge across
Shoshone River
A. History of Section 15 and Copperleaf Development
[¶6] In 1980, YX Ranch, as owner and developer of Section 15, executed and recorded
a “Declaration of Restrictions, Conditions and Protective Covenants” for Section 15
(hereinafter 1980 Covenants). The 1980 Covenants were applicable to all lots in Section
15. Concerning access to the Section 15 property north of the North Fork, now known as
the China Wall Tract, Paragraph 9(a) provided that “[a]ccess to the property north of the
Shoshone River will be by private bridge and private road as designated on the plat
recorded with the County Clerk and referred to herein.”
3
[¶7] In 2004, the predecessor in interest to Worthington Group of Wyoming, Inc.
(Worthington Group) began developing the Copperleaf Subdivision and submitted a
sketch plan and related development applications to Park County.3 The proposed
subdivision extended into Section 15, with Tract O, the land dedicated to meeting the
subdivision’s county-imposed open space requirement, extending substantially into the
area of Section 15 north of the North Fork. Because the proposed subdivision extended
into Section 15, Worthington Group had to negotiate to have the 1980 Covenants vacated
and replaced with covenants that would accommodate the proposed subdivision,
including Tract O.
[¶8] By this time, the Section 15 lots were no longer owned by a single entity, and
Worthington Group was thus required to negotiate with several Section 15 landowners to
vacate the 1980 Covenants. The negotiations lasted several months and involved a
number of issues, including cost sharing for replacement of the bridge over the North
Fork, the safety of which had been called into question, access easements both north and
south of the North Fork, and recreational and fishing rights both north and south of the
North Fork. They concluded in 2005 and resulted in “new restrictions, conditions and
protective covenants for the lands in Section 15, Township 52 North, Range 105 West,
6th PM, Park County, Wyoming, which lie north of the centerline of the North Fork of
the Shoshone River[.]”
[¶9] The new covenants, entitled “March 21, 2005 Declaration of Restrictions,
Conditions and Protective Covenants for Section 15 (China Wall Tract)” (hereinafter
2005 Covenants), were recorded on August 14, 2006. With regard to access and
easement rights, the 2005 Covenants generally provided China Wall Owners access as
defined by a 1980 Record of Survey, recorded on January 24, 1980.
[¶10] Park County approved the final plat for the Copperleaf Subdivision on March 14,
2006, and on September 21, 2007, Worthington Group recorded the plat and restrictive
covenants for the Copperleaf Subdivision. At some point thereafter, Worthington Group
defaulted on its mortgage obligations, and on December 8, 2010, the Park County Sheriff
conducted a foreclosure sale on property within Copperleaf Subdivision on which
Worthington Group had given mortgages to Shoshone First Bank, predecessor to Wells
Fargo Bank, N.A. (Wells Fargo). Through that foreclosure sale, Wells Fargo purchased
the great majority of the single family lots, Tracts O, R, S, and W, and most of the
condominium lots in Tract F. On March 5, 2012, Wells Fargo recorded the Sheriff’s
Deed that conveyed it title to that property.
B. Present Dispute and Proceedings in District Court
3
Worthington Group’s predecessor in interest was Northfork Communities, Inc., and both entities shared
the same officers. For ease of reference, we will refer to the entities collectively as Worthington Group.
4
[¶11] On September 30, 2011, the president of the Copperleaf Homeowners Association
(Copperleaf HOA) sent a letter addressed to property owners in the China Wall Tract.
The letter concerned fishing rights on the North Fork and stated, in part:
Attached is a plat map which outlines the boundaries of the
Copperleaf lands as platted. The thread (or centerline) of the
river has been highlighted in red, yellow, and blue.
The portion of the river that is indicated in red, lies within
section 15 and may be accessed by Copperleaf property
owners and property owners in Section 15 per the [2005
Covenants]. Please note that this area of the river within
Section 15 lies approximately 300 feet to the north and west
of the bridge and continues west as indicated.
The portion of the river that is indicated in yellow is bound by
Copperleaf lands on the north and south sides of the river, lies
within Section 22 and is not an area available to anyone for
access, parking and fishing or recreating other than
Copperleaf property owners. This seems to be the area of
greatest misunderstanding.
[¶12] The dispute over the location of the China Wall Owners' fishing rights continued,
and on October 29, 2012, a number of property owners in the China Wall Tract filed a
complaint in district court against the Copperleaf HOA, alleging the HOA was interfering
with their fishing rights.4 Through their complaint, Plaintiffs sought a declaration that
under the 2005 Covenants the China Wall Owners are entitled to recreational use of the
north and south sides of the North Fork in both Sections 15 and 22. Plaintiffs further
alleged that “[a]s a result of a scrivener’s error and/or mutual mistake of the parties, the
2005 Covenants failed to adequately set out” the China Wall Owners’ recreational access
to the North Fork in both Sections 15 and 22. Plaintiffs thus also requested that the 2005
Covenants be reformed to correct the mistake.
[¶13] On December 3, 2012, Copperleaf HOA filed its answer and counterclaims.
Through its counterclaims, Copperleaf HOA sought declaratory and injunctive relief: 1)
4
Throughout our opinion, we refer to all owners of property in the China Wall Tract as “the China Wall
Owners.” We refer to the China Wall Tract property owners who were named plaintiffs in the complaint
as “Plaintiffs.” The originally named plaintiffs included: Robert Williams and Mary Williams, husband
and wife; Cliff Boltz and Donna Boltz, husband and wife; Brooks J. Roddan and Leaann Roddan;
husband and wife; Philipps Ltd. Investments, Vince Philipps and Judith Philipps, husband and wife; and
Glenn Gumpel and Merrily Gumpel, husband and wife. During the course of proceedings below, the
district court entered an order substituting parties to correct and update the names in which the Plaintiffs’
property was held. The only substitution relevant to this appeal was the substitution of Glenn J. Gumpel
and Merrily Gumpel, Trustees of the Glen and Merrily Gumpel Family Trust dated October 8, 2001, for
Glenn and Merrily Gumpel, Husband and Wife.
5
limiting the access route through Copperleaf Subdivision that China Wall Owners are
entitled to use to access their property; 2) recognizing the rights of Copperleaf HOA and
its members to have walking and vehicular access to Tract O in Section 15; and 3)
recognizing the right of Copperleaf HOA and its members to have walking and vehicular
access through the China Wall Tract to National Forest lands north of the China Wall
Tract.
[¶14] On April 3, 2014, Copperleaf HOA amended its answer and counterclaims to
assert additional claims for declaratory and injunctive relief. The additional claims
sought relief: 1) prohibiting China Wall Owners from granting access to commercial
outfitters, guides, and businesses through Copperleaf Subdivision to access National
Forest lands north of the China Wall Tract; 2) recognizing the right of Copperleaf HOA
and its members to have walking and vehicular access through the China Wall Tract to
State lands west of the China Wall Tract; and 3) recognizing Copperleaf HOA's and its
members' right of access to and recreational use of the physical feature known as the
China Wall within the China Wall Tract.
[¶15] Copperleaf HOA also filed on April 3, 2014, a third party complaint against all
China Wall Owners, which was followed on April 4, 2014, by Plaintiffs’ amended
complaint, which added four China Wall Owners as named defendants. These pleadings
did not change the claims asserted by the parties and were instead intended to ensure that
all the necessary parties were joined and properly aligned. On June 30, 2014, Copperleaf
HOA filed a motion to realign the parties. Through that motion, it asserted that the Fuller
Trust and Mooncrest Ranch (successor by merger to Rocking M Ranch, Inc.), both China
Wall Owners, had determined they were aligned with Copperleaf HOA on the substantive
issues in dispute and desired to be realigned with Copperleaf HOA as Defendants,
Counterclaimants, and Third Party Plaintiffs. The district court, noting no opposition to
the motion, granted the motion to realign the parties.
[¶16] In September 2014, the parties filed competing motions for summary judgment.
During the hearing on those motions, the district court and the parties discussed joining
Wells Fargo as a necessary party, and with the parties’ agreement, the court directed that
steps be taken to join Wells Fargo. After the hearing, but before the district court issued
an order on the summary judgment motions, Wells Fargo entered its appearance as a
named defendant and third party plaintiff. Attached to that entry of appearance was an
affidavit by Curtis E. Abernathy, a Wells Fargo vice president, which stated, in part:
6. Without amending, altering or diminishing the
terms and conditions of the subdivision approval for the
Copperleaf Subdivision from the Park County
Commissioners, Wells Fargo designates the Copperleaf
Homeowners Association, Inc. and each of its members as
invitees of Wells Fargo under Article VI, Section E, of the
6
“March 21, 2005 Declaration of Restrictions, Conditions and
Protective Covenants for Sec. 15 (China Wall Tract)” as filed
of record on August 14, 2006 in the office of the ex officio
recorder and County Clerk of Park County, Wyoming at
Reception No. 2006-6322 (“2005 China Wall Covenants”).
[citation to summary judgment exhibit omitted]
[¶17] On May 18, 2015, the district court entered an order joining Wells Fargo as a
defendant and third party plaintiff.5 On September 22, 2015, the court issued its decision
on the parties’ cross motions for summary judgment. The court granted summary
judgment:
1) to Copperleaf HOA on Plaintiffs’ reformation claim, finding Plaintiffs failed to
rebut Copperleaf HOA’s showing that no mutual mistake had occurred in the drafting of
the 2005 Covenants’ provisions governing fishing and recreational rights;
2) to Copperleaf HOA on Plaintiffs’ claim to fishing and recreational rights on
Section 22, finding that under the clear and unambiguous terms of the 2005 Covenants,
the China Wall Owners did not have fishing or recreation rights on any land other than
those lands in Section 15, north of the centerline of North Fork;
3) to Plaintiffs on the question of the China Wall Owners’ access to the China Wall
Tract through Copperleaf Subdivision, finding that such access was as defined in a
recorded easement entitled the Worthington Easement;
4) to Plaintiffs on the question of the China Wall Owners’ right to grant access to
outfitters, guides, and businesses for commercial purposes over the Copperleaf
Subdivision for access to the National Forest lands north of the China Wall Tract, finding
that by its clear and unambiguous terms, the Worthington Easement may be used by the
China Wall Owners and their “visitors, licensees and invitees;”
5) to Plaintiffs on the question of Copperleaf HOA’s and its members' access through
the China Wall Tract to reach Tract O, or State or National Forest lands, finding that
under the clear and unambiguous terms of the 2005 Covenants, those covenants do not
apply to Copperleaf HOA or its members or confer any right or benefit on Copperleaf
HOA or its members.
[¶18] At the close of the district court’s written decision, the court instructed the parties
as follows:
5
Copperleaf HOA and the parties aligned with it will be referred to collectively as “Copperleaf.”
7
The Court believes that all pending motions and all
pending issues have been decided in this Decision Regarding
Motion to Strike and Competing Motions for Summary
Judgment. In the event that there are pending motions or
material pending issues which remain undetermined, counsel
should immediately notify the Court and all other counsel, in
writing, specifying those matters which require further
determination.
[¶19] On October 22, 2015, Copperleaf filed a notice of pending issues. Through that
notice, Copperleaf notified the district court that neither the summary judgment motions
filed to date nor the court's ruling on those motions addressed the question of Wells
Fargo’s rights under the 2005 Covenants as owner of Tract O in the China Wall Tract. In
response, on November 17, 2015, the court issued a briefing schedule for the parties to
address the question of Wells Fargo’s rights. On the same date, the court issued its final
order on the first round of summary judgment motions.
[¶20] Copperleaf thereafter filed a supplemental motion for summary judgment, by
which it sought a declaratory judgment that Wells Fargo, as owner of Tract O, has the
right: to use walking or vehicular access routes through the China Wall Tract to access
Tract O and State lands; to use all other walking or vehicular access routes through the
China Wall Tract, with the exception of the access to National Forest lands; and to access
the recreational lands and hiking and riding trails along the China Wall. Copperleaf also
requested a declaratory ruling that Copperleaf HOA and its members, as invitees of Wells
Fargo, have access to the same routes and areas in the China Wall Tract.6
[¶21] Plaintiffs opposed Copperleaf’s supplemental motion, Gumpel Trust filing its own
separate opposition. Plaintiffs, other than Gumpel Trust, argued that Wells Fargo may
only use its lot in the China Wall Tract property for a single family purpose and using its
rights under the 2005 Covenants as a means to treat Copperleaf HOA and its members as
invitees is an unpermitted commercial purpose. In its separate opposition, Gumpel Trust
argued: 1) the language of the 2005 Covenants and the circumstances surrounding their
execution make it clear the China Wall Owners did not intend to allow the Tract O owner
the type of access Copperleaf asserted; 2) allowing Wells Fargo to designate Copperleaf
HOA and its members as invitees equates to granting an appurtenant easement without
adhering to the requirements for an easement and would overburden the easement; 3) an
invitee may only be a business visitor or a member of the public to whom the premises
are held open and Copperleaf HOA and its members fit neither definition; and 4) the
6
Copperleaf’s motion also sought a declaratory judgment relating to the access rights of the Fuller Trust,
as a China Wall Owner. The district court’s ruling on the Fuller Trust rights of access is not, however,
challenged on appeal, and we therefore will not discuss the parties' arguments or the district court's ruling
on that question.
8
easement for access to recreational lands and hiking and riding trails along the China
Wall fails for lack of an adequate description of the easement's location.
[¶22] On February 8, 2016, the district court issued its decision granting Copperleaf’s
supplemental motion for summary judgment. The court ruled: 1) under the clear and
unambiguous terms of the 2005 Covenants, Wells Fargo is an “owner” and that, as an
owner, Wells Fargo had the same access rights as any other China Wall Owner, as
defined by the 1980 Record of Survey, except for National Forest access; 2) Wells Fargo
may grant Copperleaf HOA and its members permission, as invitees, to enter or access
the easements and rights-of-way granted to Wells Fargo under the 2005 Covenants; 3)
“ ‘invitees’ of Wells Fargo have the same rights and privileges as Wells Fargo under the
terms of the 2005 Covenants;” and 4) the easements granted by the 2005 Covenants were
described in sufficient detail to be enforceable.
[¶23] On April 1, 2016, the district court entered its final order granting Copperleaf’s
supplemental motion for summary judgment. On April 28, 2016, Gumpel Trust, the only
party to appeal, filed a notice of appeal to this Court, appealing all of the district court’s
summary judgment decisions and orders.
STANDARD OF REVIEW
[¶24] We review the district court’s entry of summary judgment as follows:
Summary judgment can be an appropriate resolution of
a declaratory judgment action, and we invoke the usual
standard for review. Continental Western Ins. Co. v. Black,
2015 WY 145, ¶ 13, 361 P.3d 841, 845 (Wyo. 2015).
Summary judgment can be sustained only when no genuine
issues of material fact are present and the moving party is
entitled to judgment as a matter of law. W.R.C.P. 56(c); Felix
Felicis, LLC v. Riva Ridge Owners Ass’n, 2016 WY 67, ¶ 29,
375 P.3d 769, 275 P.3d 769, 778 (Wyo. 2016). We review a
grant of summary judgment deciding a question of law de
novo. Id. We accord no deference to the district court on
issues of law and may affirm the summary judgment on any
legal grounds appearing in the record. Sky Harbor Air Serv.,
Inc. v. Cheyenne Reg’l Airport Bd., 2016 WY 17, ¶ 40, 368
P.3d 264, 272 (Wyo. 2016).
Cheyenne Newspapers, Inc. v. City of Cheyenne, 2016 WY 125, ¶ 10, 386 P.3d 329, 333
(Wyo. 2016).
9
[¶25] The interpretation of covenants imposing restrictions or conditions on the use of
land is a question of law we review de novo. Wimer v. Cook, 2016 WY 29, ¶ 21, 369
P.3d 210, 218 (Wyo. 2016).
DISCUSSION
I. Wells Fargo’s China Wall Tract Access Rights
[¶26] To determine Wells Fargo’s access rights to the China Wall Tract, the district
court was required to determine Wells Fargo’s rights as the owner of Tract O, a
substantial portion of which lies in the China Wall Tract. In answering this question, the
court looked to the terms of the 2005 Covenants, found them clear and unambiguous, and
concluded that Wells Fargo is an “owner” with the same access rights as any other
“owner” under the covenants.
[¶27] Gumpel Trust contends that the district court erred in its ruling because it failed to
consider extrinsic evidence, including the history of the area’s development, the
negotiations between the Copperleaf developers and the Section 15 owners, and the
conditions on the ground in interpreting the 2005 Covenants. It asserts that such
evidence should have been considered because the covenants are ambiguous. In the
alternative, it argues that even if the covenants are determined to be clear and
unambiguous, the evidence should have been considered as an aid in interpreting the
covenants.
[¶28] We agree with the district court’s finding that the 2005 Covenants are clear and
unambiguous and with its interpretation of Wells Fargo’s access rights. To reach this
conclusion, we begin by addressing the controlling covenant provisions and their plain
meaning. We will then turn to the Gumpel Trust’s arguments concerning extrinsic
evidence, addressing first the alleged ambiguities in the covenants and then the use of
extrinsic evidence to interpret a clear and unambiguous contract.
A. Plain Meaning of 2005 Covenant Terms
[¶29] Covenants are contractual in nature and we therefore interpret them as we would a
contract. Wimer, ¶ 22, 369 P.3d at 218 (citing Omohundro v. Sullivan, 2009 WY 38, ¶ 9,
202 P.3d 1077, 1081 (Wyo. 2009)). This means we use the following rules of
interpretation:
Our review of a contract begins with an analysis of the
document’s plain language. Claman v. Popp, 2012 WY 92,
¶ 26, 279 P.3d 1003, 1013 (Wyo.2012).
[T]he words used in the contract are afforded the plain
10
meaning that a reasonable person would give to them.
Doctors’ Co. v. Insurance Corp. of America, 864 P.2d
1018, 1023 (Wyo.1993). When the provisions in the
contract are clear and unambiguous, the court looks
only to the “four corners” of the document in arriving
at the intent of the parties. Union Pacific Resources
Co. [v. Texaco], 882 P.2d [212,] 220 [(Wyo.1994)];
Prudential Preferred Properties [v. J and J Ventures],
859 P.2d [1267,] 1271 [(Wyo. 1993)]. In the absence
of any ambiguity, the contract will be enforced
according to its terms because no construction is
appropriate. Sinclair Oil Corp. v. Republic Ins. Co.,
929 P.2d 535, 539 (Wyo.1996).
Id.,¶ 26, 279 P.3d at 1013 (quoting Hunter v. Reece, 2011
WY 97, ¶ 17, 253 P.3d 497, 501–02 (Wyo.2011)). Further,
we interpret the contract as a whole and read each provision
in light of the others to find the plain meaning. Id.,¶ 28, 279
P.3d at 1013. We avoid interpreting provisions in a way that
makes the other provisions inconsistent or meaningless. Id.Finally, “[b]ecause we use an objective approach to interpret
contracts, evidence of the parties’ subjective intent is not
relevant or admissible in interpreting a contract.” Id., ¶ 27,
279 P.3d at 1013.
Thornock v. PacifiCorp, 2016 WY 93, ¶ 13, 379 P.3d 175, 180 (Wyo. 2016).
[¶30] The provisions of the 2005 Covenants relevant to the question of Wells Fargo’s
access to the China Wall Tract are those governing applicability of the covenants and
access and easements. Concerning their applicability, the covenants provide:
Unless otherwise explicitly stated herein, these restrictions,
conditions and protective covenants shall apply only to those
portions of the Tract, which lie north of the centerline of the
North Fork of the Shoshone River. These restrictions,
conditions and protective covenants shall specifically exclude
all Section 15 lands [s]outh of the centerline of the North
Fork of the Shoshone River * * * .
[¶31] The term “Tract” in the covenants refers to the China Wall Tract, which is all of
the Section 15 lands that lie north of the centerline of the North Fork. Also relevant to
the covenants’ applicability, is the definition they provide for the term “owner.” The
covenants define “owner” as follows:
11
For purposes of these restrictions, conditions and protective
covenants, the term “owner” shall mean the owner(s) of
record of one or more parcels in the tract, regardless of the
size of the parcel(s) or the number of parcels owned.
[¶32] Based on these provisions, there is no question that the 2005 Covenants apply to
the substantial portion of Tract O that lies in Section 15 north of the centerline of the
North Fork. It is equally clear that Wells Fargo, as the record owner of Tract O, is an
“owner,” as the covenants define that term.7 The remaining question is whether the
7
In its reply brief, Gumpel Trust argues:
A property “lot” is land that has been platted for development
and independent sale. When the 2005 Covenants were agreed to, the
Copperleaf Developer * * * owned property north of the river that
constituted “lots” under the 1980 Survey plat. In 2007, the Copperleaf
Developer and Park County replatted that property as part of Tract O in
the Copperleaf plat, and that change in status from “lots” to a “tract”
extinguished Wells Fargo’s access rights under the 2005 covenants.
Gumpel Trust did not make this argument to the district court, and as a result, Copperleaf has moved to
strike the Trust’s reply brief as improper. Gumpel Trust opposes the motion to strike on two grounds.
First, it contends that its argument was proper because it was in response to a new issue raised by
Copperleaf in its Brief of Appellees. Second, it argues that what this Court restricts on appeal is the
raising of new issues, not the assertion of new arguments. We reject both arguments.
Our precedent is clear that an argument may not be made for the first time on appeal. Miller v. Beyer,
2014 WY 84, ¶ 34, 329 P.3d 956, 967 (Wyo. 2014) (“This Court has repeatedly stated that it will not
consider arguments made for the first time on appeal.”). This rule holds true “whether it be legal theories
or issues never formally raised in the pleadings nor argued to the trial court.” Crofts v. State ex rel. Dep’t
of Game and Fish, 2016 WY 4, ¶ 19, 367 P.3d 619, 624 (Wyo. 2016) (quoting Basic Energy Servs., L.P.
v. Petroleum Res. Mgmt., Corp., 2015 WY 22, ¶ 28, 343 P.3d 783, 791 (Wyo. 2015)); see also Acorn v.
Moncecchi, 2016 WY 124, ¶ 61, 386 P.3d 739, n.13 (Wyo. 2016) (“As we have stated on numerous
occasions, we will not consider evidence that is not part of the record on appeal or arguments that were
not presented to the trial court.”).
Gumpel Trust’s assertion that its new argument was appropriately raised in its reply brief because
Copperleaf raised a new issue in its briefing is equally unavailing. Copperleaf argued in its brief that the
2005 Covenants were clear and unambiguous and under the plain meaning of those clear terms, the
district court correctly ruled on Wells Fargo’s access rights. This was not Copperleaf raising a new issue
on appeal. This was Copperleaf responding to the Trust’s arguments that the 2005 Covenants are
ambiguous and cannot be interpreted without resort to extrinsic evidence.
Gumpel Trust’s argument that Wells Fargo lost its rights under the 2005 Covenants when the Copperleaf
Subdivision was platted is a new argument on appeal, and we therefore will not consider the argument.
Having concluded we will not consider the new argument, we have no need to also strike the reply brief
and decline to do so.
12
covenant provisions governing access and easements contain language that would deprive
Wells Fargo of the same access rights granted other “owners” in the China Wall Tract.
[¶33] Article VI of the covenants governs access and easements. It provides in relevant
part:
A. Access to the China Wall Tract is by private bridge. A
Wyoming limited liability company (LLC), known as the
Northfork Bridge Association, LLC, will hold the bridge in
ownership by conveyance of a parcel of land, 60 feet in width
and 200 feet in length to the Association by Rocking M
Ranch, Inc., a Wyoming corporation, on ________ by that
certain Warranty Deed recorded at _______________ in the
records of the Park County Clerk and Recorder.
****
C. Access to the China Wall Tract will be by the rights-
of-way and access easements illustrated in the Record of
Survey recorded January 23, 1980 in Block C of Plats, Page
139, of the records of the Park County Clerk and Recorder,
the rights-of-way and access easements are more fully
described in Exhibits A and B, attached hereto. A road
maintenance agreement (to be written and agreed upon by
residents in the China Wall Tract) will be recorded in the
records of Park County, Wyoming. Each owner in the China
Wall Tract will be responsible for one share of the costs of
such maintenance, as assessed by the road agreement. The
portion of the road running across the southern end of the
China Wall, from its intersection with the main road north of
the bridge, will not be maintained as part of the road
agreement.
D. All lots within the China Wall Tract are subject to
rights-of-way and easements for repair, replacement,
installation and maintenance of all existing roads, water lines,
drainage ditches, power lines, telephone lines and any other
utilities, including all such easements and rights-of-way
shown on the recorded plat.
E. All easements and rights-of-way herein set forth and
described and established in the plat shall be private
easements and rights-of-way for the sole and exclusive use of
the owners of the various lots described in the plat and their
respective families, invitees, agents, employees, heirs,
successors and assigns.
****
13
I. Except for road crossings shown on the recorded plat,
the rock formation known as the China Wall will be left in its
present condition for the benefit of all owners of the China
Wall Tract. All owners shall have access to the recreational
lands and hiking and riding trails along the China Wall.
J. All owners of the building lots in the China Wall Tract
shall have access to the National Forest on the roadway in Lot
3 west of the Wall Creek and east of the China Wall to the
forest boundary. A record of survey of said road was
recorded on _____ at __________ in the records of the Park
County Clerk and Recorder and the centerline of said
roadway is described more particularly in Exhibit C attached
hereto.
K. All owners shall have access to the recreational lands
on the north side of the North Fork of the Shoshone River as
designated on the recorded plat, and access through those
lands to the river for fishing.
[¶34] The only provision in Article VI that distinguishes among the owners of lots in the
China Wall Tract is Section J, which restricts National Forest access to building lot
owners. Because Tract O is not a building lot, Wells Fargo does not have National Forest
access. Article VI does not otherwise contain any clear restriction on the access and
easement rights of Tract O.
[¶35] Nor do we find an implied restriction on Tract O’s access and easement rights in
the use of the term “lot” in the Article VI provisions. The 2005 Covenants do not define
the term “lot,” so we look to its plain meaning to determine how the term is used.
Black’s Law Dictionary defines “lot” as a “tract of land, esp. one having specific
boundaries or being used for a given purpose.” Black’s Law Dictionary 1032 (9th ed.
2009). The ordinary dictionary definition is “a portion of land” or “a measured parcel of
land having fixed boundaries and designated on a plot or survey.” Merriam-Webster’s
Collegiate Dictionary 736 (11th ed. 2007). Given that the term “lot” is a general
reference to a parcel of land with boundaries, we find no intention in the use of that term
in Article VI to distinguish Tract O from any the other parcel of land in the China Wall
Tract.
[¶36] The covenant provisions outside the Article VI access and easement provisions
likewise do not suggest that the term "lot" is used in the covenants only when referring to
lands other than Tract O. The provision that comes closest to limiting the term's meaning
is Article I, Section A, which states that “[a]ll lots contained in the above-described
property shall be used exclusively for the purpose of single-family residences.” When we
read this provision in context, however, we find no intention to equate the term "lot" with
the term “building lot” or to otherwise limit use of the term to lands other than Tract O.
14
[¶37] First, the provision immediately following the Section A restriction prohibits retail
or commercial use of property and the construction of multi-family, rental or commercial
buildings. Reading Section A in context, it is a limit on the type of construction allowed
in the China Wall Tract, not an effort to limit the meaning of the term “lot.” Were we to
read it otherwise, it would exclude Tract O from a number of covenant restrictions and
requirements that by their terms apply to a “lot.” For example, Article IX requires that
“[e]ach lot shall be kept in a clean and sightly condition at all times,” and that “[a]ll
manure from livestock must be disposed of so as not to create any nuisance to adjoining
landowners * * * .” Article X, Section C states, “No owner or occupant shall allow or
permit any noxious weeds to grow or ripen upon any lot. Each and every owner or
occupant is responsible for removal of such at their own expense.” Surely, the China
Wall Owners intended that these types of restrictions apply equally to Tract O.8
[¶38] In the absence of clear language evidencing such intent, we are unwilling to equate
the terms “lot” and “building lot,” or conclude that the term “lot” refers to China Wall
Tract lands other than Tract O. We thus conclude that, with the limited exception of
National Forest access, nothing in the plain language of the 2005 Covenants indicates that
the owner of Tract O is to be treated differently from any other China Wall Owner for
purposes of access and easements. We turn next to the ambiguities asserted by the
Gumpel Trust and explain why we reject the alleged ambiguities as cause to question the
plain meaning we have found in the covenants’ access and easement provisions.
B. Alleged Ambiguities in 2005 Covenants
[¶39] Gumpel Trust contends that the 2005 Covenants are ambiguous and the district
court thus erred in refusing to consider extrinsic evidence to interpret the covenant
provisions governing access and easements. Treating the 2005 Covenants as we would
any contract, we determine whether the covenant terms are ambiguous by looking to the
language of the covenants. We will find an ambiguity in a covenant term only “if
indefiniteness of expression or double meaning obscures the parties’ intent.” Pennaco
Energy, Inc. v. Sorenson, 2016 WY 34, ¶ 41, 371 P.3d 120, 130 (Wyo. 2016). Against
this standard, we consider the ambiguities alleged by Gumpel Trust.
1. Silence or Lack of Clarity on Critical Terms
[¶40] Gumpel Trust first argues that the 2005 Covenants are ambiguous because they are
silent or unclear on whether Wells Fargo, the Copperleaf lot owners, and Copperleaf
8
We understand that when the 2005 Covenants were executed, it was anticipated that Tract O would be
maintained as open space, meaning kept in its natural state or used strictly for agricultural purposes, and
this may have made some of the covenant restrictions and requirements redundant. We nonetheless find
it unlikely the China Wall Owners intended to exempt Tract O from the restrictions and requirements
imposed on “lot” owners.
15
HOA have any rights outside Tract O, a matter that Gumpel Trust asserts was of critical
importance to the China Wall Owners. It contends this ambiguity was highlighted by the
district court’s conflicting summary judgment rulings in which the court first concluded
that the 2005 Covenants conferred no benefits or rights on Copperleaf lot owners or
Copperleaf HOA and then in its second ruling concluded that Copperleaf HOA and its
members may have access to the China Wall Tract as invitees of Wells Fargo. We find
no ambiguity here.
[¶41] First, the 2005 Covenants are not silent on the rights of Copperleaf HOA and its
members under the covenants. As the district court recognized in its first ruling, the
covenants are clear that property owners outside the area covered by the 2005 Covenants,
which would include Copperleaf HOA and its members, were conferred no benefits or
rights by the 2005 Covenants. The district court’s second summary judgment ruling did
not conflict with that first ruling. The second ruling recognized the access and easement
rights of Wells Fargo as a landowner in the China Wall Tract, which included the right to
have invitees use the access and easements. The second ruling concerned Wells Fargo’s
rights as an owner in the China Wall Tract, as opposed to any independent rights of
Copperleaf HOA and its members under the 2005 Covenants.
[¶42] With respect to the alleged ambiguity in the covenants’ silence on whether the
Tract O owner has rights of access outside Tract O, what Gumpel Trust is really asking is
that this Court supply terms that were not written into the covenants. By their plain
terms, the covenants do not treat the owner of Tract O differently from other China Wall
Owners, except with respect to National Forest access. It is not the function of this Court
or any court to write terms into a contract. We have said:
Where a contract is silent on a particular matter that easily
could have been drafted into it, a court should refrain from
supplying the missing language under the pretext of contract
interpretation. Herling v. Wyoming Machinery Co., 2013 WY
82, ¶¶ 35–36, 304 P.3d 951, 960 (Wyo.2013). Courts are not
at liberty to rescue parties from the consequences of a poorly
made bargain or a poorly drafted agreement by rewriting a
contract under the guise of construing it. Hunter, ¶ 23, 253
P.3d at 503.
In re CDR, 2015 WY 79, ¶ 30, 351 P.3d 264, 270-71 (Wyo. 2015).
2. Ambiguity in National Forest Access
[¶43] Gumpel Trust next contends that the 2005 Covenants are ambiguous because they
have conflicting National Forest access provisions. Specifically, Article VI, Section C
provides that access will be as set forth in the 1980 Survey of Record, which survey
16
includes National Forest access, but then Article VI, Section J limits National Forest
access to building lot owners. We again see no ambiguity here.
[¶44] As with contracts, we read covenants as a whole, meaning we must read the
covenant provision defining access rights according to the 1980 Record of Survey
together with the covenant provision that limits National Forest access. In doing so, we
are mindful of our rule of statutory interpretation that general terms in a contract yield to
specific terms if the two are not reconcilable. Landen v. Prod. Credit Ass’n of Midlands,
737 P.2d 1325, 1328 (Wyo. 1987) (citing Flora Constr. Co. v. Bridger Valley Elec. Ass'n,
355 P.2d 884, 886 (Wyo. 1960)). Using this rule of interpretation, we conclude that
access is generally defined according to the 1980 Record of Survey, except for access to
National Forest lands. The more specific provision controls access to National Forest
Lands, and that access is granted only to owners of building lots.
[¶45] The provision limiting access to the National Forest does not create an ambiguity.
It is merely an exception to the access defined by the 1980 Record of Survey.
3. Covenant Requirement that Lots Be Used for Single Family Residences
[¶46] Gumpel Trust next asserts (record citations omitted):
Also exemplary of the ambiguities of the 2005
Covenants, these covenants require that lots be used
“exclusively for the purpose of single-family residences” and
provide the easements are for the owners and their “respective
families.” This focal point on families and residential use
makes the 2005 Covenants ambiguous in light of the open
space density setoff that is the sole reason for Tract O existing
as part of Copperleaf. Wells Fargo is prohibited from
building a residence on Tract O, by plat restrictions and Park
County development permit density requirements. As entities
that only own Tract O because it is County-required open
space, neither Wells Fargo nor Copperleaf HOA have or will
have any residence on Tract O nor, as corporate entities, will
they have any “family.”
[¶47] We are unable to see the ambiguity Gumpel Trust is asserting. As discussed
above, the Article I, Section A requirement that “[a]ll lots contained in the above-
described property shall be used exclusively for the purpose of single-family residences,”
when read in context, is a limitation on the type of structure that may be built in the
China Wall Tract. The provision does not require that a lot owner build a residence, and
of course nothing in the covenants requires that an owner have a family. Moreover,
Article VI, Section E does not limit the use of easements and rights-of-way to owners and
17
their respective families. It limits that use to “owners * * * and their respective families,
invitees, agents, employees, heirs, successors and assigns.”
[¶48] The covenants are clear that an “owner” means “the owner(s) of record of one or
more parcels in the tract[.]” Whether Wells Fargo builds on its property or not, and
whether it has family or not, it is an owner, with access and easement rights under the
covenants. We find nothing in the asserted focal point on families and residential use that
creates an ambiguity in the access and easement provisions.
4. Covenants’ Use of Ambiguous, Undefined Terms
[¶49] Claiming another ambiguity, Gumpel Trust contends:
Many critical terms used in the 2005 Covenants are
ambiguous as to their meaning: the 2005 Covenants use the
terms “private roadways,” “dedicated roadway[,]” existing
roadways,” the “plat” and “recreational lands” along the china
wall—none of which are defined. The words “private” and
“exclusive” must be accorded a meaning—they are not
surplusage, and newly having the 151 families now able to
travel all over the property of the handful of parcel owners in
the China Wall Tract violates the plain meaning of these
terms.
[¶50] This argument does not cite to the particular provisions in which these terms
appear or otherwise provide the context in which they are used. Nor does the argument
explain how these terms and the failure of the covenants to expressly define them creates
an ambiguity in the provisions governing the access and easement rights for Tract O. We
therefore will not consider the argument further. See Golden v. Guion, 2016 WY 54,
¶ 31, 375 P.3d 719, 727 n.5 (Wyo. 2016) (Court does not consider issues not supported
by cogent argument).
5. Ambiguity Created by the 1980 Record of Survey
[¶51] Gumpel Trust next contends that references in the 1980 Record of Survey to both
existing and proposed roads, combined with the actual road conditions, create an
ambiguity in the access rights. We disagree.
[¶52] The 1980 Survey of Record describes the location of the existing roads. It is not
ambiguous. What the Gumpel Trust is asserting is not an ambiguity in the covenants but
rather the potential for a future dispute concerning use of a road and whether that road is
an existing road, a proposed road, or not a road at all. That hypothetical dispute is not
presently before this Court, and should such a dispute arise, it will need to be resolved at
18
that time, not in the context of this declaratory judgment action. See Internat’l Ass’n of
Firefighters Local Union No. 279 v. City of Cheyenne, 2013 WY 157, ¶ 23, 316 P.3d
1162, 1169 (Wyo. 2013) (quoting William F. West Ranch, LLC v. Tyrrell, 2009 WY 62,
¶ 13, 206 P.3d 722, 727 (Wyo. 2009)) (“ ‘[T]he Declaratory Judgments Act gives the
courts no power to determine future rights or anticipated disputes or controversies.’ ”).
6. Incomplete Terms and Failure to Attach Exhibits
[¶53] Gumpel Trust next argues that because the covenants have blank spaces that were
never completed, exhibits that were not attached, and references to non-existent
documents and entities, it is impossible to interpret the covenants without the aid of
extrinsic evidence. In making this argument, Gumpel Trust does not explain how these
oversights or omissions relate to the provisions governing the access and easement rights
for Tract O or how they create an ambiguity in those provisions. We therefore find no
ambiguity.
7. Extrinsic Evidence Showing Ambiguity
[¶54] In its final assertion of ambiguity, Gumpel Trust asks this Court to find an
ambiguity, not in the covenants’ language, but based on extrinsic evidence. That
evidence includes course of conduct evidence, such as Gumpels’ erection of a gate on an
access easement and their grant of a National Forest access easement to building lot
owners. It also includes an email from a representative of the Copperleaf developer
expressing concerns with the clarity of the 2005 Covenants. In support of consulting
extrinsic evidence to determine whether the covenants are ambiguous, Gumpel Trust
directs us to our decision in Orthopaedics of Jackson Hole, P.C. v. Ford, 2011 WY 50,
¶ 38, 250 P.3d 1092, 1101 (Wyo. 2011) (looking to circumstances surrounding contract’s
execution to determine whether there was an ambiguity in the contract’s language).
[¶55]We do not agree that Orthopaedics of Jackson Hole stands for the broad proposition
that a court may consider extrinsic evidence to determine whether a contract is
ambiguous. In that case, extrinsic evidence was consulted solely to aid in defining the
term “fixed asset.” Orthopaedics of Jackson Hole, ¶¶ 37-38, 250 P.3d at 1101-02. The
use of extrinsic evidence to define a specialized or technical contract term is the limited
purpose for which this Court has held extrinsic evidence may be used in interpreting a
contract which is otherwise clear and unambiguous. Thornock, ¶19, 379 P.3d at 181
(extrinsic evidence permitted “only in situations where an otherwise unambiguous term
had a different, special, or technical usage at the time the contract was executed”). Aside
from this narrow exception, we have roundly rejected the use of extrinsic evidence to
determine whether a contract is ambiguous:
The ambiguity which justifies examining extrinsic evidence
must exist ... in the language of the document itself. It cannot
19
be found in subsequent events or conduct of the parties,
matters which are extrinsic evidence. The suggestion that
one should examine extrinsic evidence to determine whether
extrinsic evidence may be examined is circuitous.
Wolter v. Equitable Res. Energy Co., Western Region, 979 P.2d 948, 952 (Wyo. 1999)
(quoting State v. Pennzoil Company, 752 P.2d 975, 978 (Wyo. 1988)) (emphasis and
ellipses in original).
[¶56] Having found no ambiguity in the language of the 2005 Covenants, we reject
Gumpel Trust’s argument that the district court erred on this basis when it refused to
consider extrinsic evidence to interpret the covenants. We next address the Trust’s
argument that the Court should consider extrinsic evidence even in the face of a clear and
unambiguous contract.
C. Use of Extrinsic Evidence to Interpret Clear and Unambiguous Covenants
[¶57] Gumpel Trust argues that even if this Court finds the covenants clear and
unambiguous, extrinsic evidence should be considered to interpret the meaning of the
covenants and the intentions of the parties in executing the covenants. In so arguing,
Gumpel Trust acknowledges our past decisions limiting the use of extrinsic evidence, but
suggests the Court seems to be warming to a more expansive use of such evidence. We
do not agree.
[¶58] In a recent decision, we reiterated that extrinsic evidence may only be used to aid
in interpreting a clear and unambiguous contract “only in situations where an otherwise
unambiguous term had a different, special, or technical usage at the time the contract was
executed.” Thornock, ¶ 19, 379 P.3d at 181. We rejected the offer of extrinsic evidence
in Thornock, observing:
While Mr. Thornock urges us to consider evidence
outside of the four corners of the contract in order to fully
understand the circumstances surrounding the second
contract’s formation, he is not doing so with the intent of
providing an industry standard or a specialized meaning to a
particular term. Instead, he is attempting to insert terms into
the contract that simply do not exist.
Thornock, ¶ 21, 379 P.3d at 182.
[¶59] The same is true here. Gumpel Trust is not urging the use of extrinsic evidence to
define specialized terms in the covenants. It is instead asking this Court to insert
restrictions on the rights of Tract O that were not placed in the covenants, something we
20
will not do. See Pennaco Energy, ¶ 41, 371 P.3d at 130 (“The parties are free to agree to
whatever lawful terms they desire, and we will not rewrite the agreement under the guise
of judicial construction.”).
[¶60] Because we find no ambiguity in the 2005 Covenants and no other reason to
consider extrinsic evidence, we adhere to our conclusion that, with the limited exception
of National Forest access, nothing in the plain language of the 2005 Covenants indicates
the owner of Tract O is to be treated differently from any other China Wall Owner for
purposes of access and easements. We thus uphold the district court’s ruling that Wells
Fargo has the access rights set by the 1980 Record of Survey, access to the recreational
lands and hiking and riding trails along the China Wall, and the right to grant permission
to its invitees to use such access and easements.
II. Propriety of Wells Fargo Invitee Designation
[¶61] Gumpel Trust contends that even if Wells Fargo, as owner of Tract O, has access
and easement rights under the 2005 Covenants, Copperleaf HOA and its members do not
qualify as invitees, as that term is used in the covenants. It further argues that Wells
Fargo’s blanket designation of Copperleaf HOA and its members as invitees is the
equivalent of granting them an easement and overburdens Wells Fargo’s easements as a
matter of law.
A. Plain Meaning of “Invitee”
[¶62] The 2005 Covenants do not define the term “invitee,” as it is used in the Article
VI, Section E provision allowing owners and “their respective families, invitees, agents,
employees, heirs, successors and assigns” to use the China Wall Tract easements and
rights-of-way. We therefore look to the term’s plain meaning, which according to the
ordinary dictionary definition means “an invited person.” Merriam-Webster’s Collegiate
Dictionary 659 (11th ed. 2007).
[¶63] Black’s Law Dictionary also defines “invitee,” but the definition it offers is the
term's use in a premises liability context. It defines “invitee” to mean:
A person who has an express or implied invitation to enter or
use another's premises, such as a business visitor or a member
of the public to whom the premises are held open.  The
occupier has a duty to inspect the premises and to warn the
invitee of dangerous conditions.—Also termed business
guest; licensee with an interest. Cf. LICENSEE (2);
TRESPASSER, BUSINESS VISITOR.
Black’s Law Dictionary 904 (9th ed. 2009).
21
[¶64] Gumpel Trust argues for a definition of invitee akin to that found in Black’s Law
Dictionary but even more bound by premises liability principles. It proposes that the
term be defined in keeping with the Restatement (Second) of Torts, which treats “invitee”
as a “word of art, with a special meaning in the law,” and defines it to exclude a “social
guest.” See Restatement (Second) of Torts § 332, cmt. a (1965). Drawing on that
definition, Gumpel Trust contends that to qualify as an invitee under the covenants, the
visitor must be either a member of the public visiting land held open for a public purpose
or a business visitor.
[¶65] The covenants do not use the term “invitee” in a premises liability context and
there is no indication that the parties to the covenants intended to give the term a narrow
and “special meaning,” drawn from premises liability principles. Indeed, we think it
likely the signatories to the covenants would have been surprised to learn that they could
not have social guests as invitees. We therefore reject the definition of invitee offered by
Gumpel Trust.
[¶66] The plain meaning of “invitee” is one who is invited. Copperleaf HOA and its
members thus qualify as invitees.
B. Unlawful Extension and Overburdening of Easement
[¶67] Gumpel Trust contends that Wells Fargo’s invitee designation is the equivalent of
granting Copperleaf HOA and its members an appurtenant easement across the China
Wall Tract. We disagree.
[¶68] An easement is “an interest in land which entitles the easement holder to a limited
use or enjoyment over another person’s property.” Leeks Canyon Ranch, LLC v.
Callahan River Ranch, LLC, 2014 WY 62, ¶ 13, 327 P.3d 732, 737 (Wyo. 2014) (quoting
Hasvold v. Park Cnty. Sch. Dist. No. 6, 2002 WY 65, ¶ 13, 45 P.3d 635, 638 (Wyo.
2002)). It is generally irrevocable. Markstein v. Countryside I, LLC, 2003 WY 122,
¶ 30, 77 P.3d 389, 398 (Wyo. 2003) (quoting Baker v. Pike, 2002 WY 34, ¶ 11, 41 P.3d
537, ¶ 11 (Wyo. 2002)). We have described the indicia of an appurtenant easement as
follows:
In R.C.R., Inc., this court identified certain terms
which are “badges” of an appurtenant easement, including
language which indicates: (1) that the easement was created
to benefit a specific tract of land; (2) that the grant was for a
perpetual right-of-way for ingress and egress, (3) that the
grantee has the right to inspect and maintain the easement; (4)
that the right is not limited to the possessor personally; (5)
that the grant expressly extends the right to the grantees, their
22
heirs, executors, administrators, successors, assigns and legal
representatives; and (6) that the easement document does not
contain any limitations on the transferability of the easement
to future transfers of both the dominant and servient estates.
978 P.2d at 586.
Hasvold, ¶ 21, 45 P.3d at 640.
[¶69] Wells Fargo’s invitee designation is not an easement, appurtenant or otherwise.
Contrary to Gumpel Trust’s assertions, the invitee designation does not benefit a
Copperleaf lot owner for so long as the lot is owned, and it does not necessarily
automatically transfer when the lot is owned. The designation grants Copperleaf HOA
and its members permission to use Wells Fargo’s access and easement rights, and there is
no language in the designation to suggest that Wells Fargo is limited in its ability to
withdraw that permission. The designation is thus not a guarantee that a Copperleaf lot
owner will have Wells Fargo’s permission to use Wells Fargo’s access and easement
rights for any particular duration. The grant of permission is not perpetual and it is not
appurtenant to the land.
[¶70] Given the ability of Wells Fargo to freely rescind its invitee designation, the
designation plainly is not an easement. See Markstein, ¶ 30, 77 P.3d at 398
(distinguishing grant of permission to do something on land, which can be easily
rescinded, from an easement, which is an irrevocable interest in land). Because the
invitee designation is not an easement, we need not consider Gumpel Trust’s argument
that the creation of such an easement is, as a matter of law, an overburdening of Wells
Fargo’s access easements under the covenants. Any future dispute concerning the
overburdening of the easements under the covenants must be resolved in a proceeding
separate from this declaratory judgment proceeding. See Internat’l Ass’n of Firefighters,
¶ 23, 316 P.3d at 1169 (not proper in declaratory judgment proceeding to determine
future rights or anticipated disputes).
[¶71] We do, however, believe that in relation to these questions, the district court’s
ruling may require minor modification. In one paragraph, the district court ruled that
Wells Fargo may grant Copperleaf HOA and its members permission, as invitees, to enter
or access the easements and rights-of-way granted to Wells Fargo under the 2005
Covenants. We have no concern with this statement of the court’s ruling. Toward the
end of the next paragraph, however, the court added that “ ‘invitees’ of Wells Fargo have
the same rights and privileges as Wells Fargo under the terms of the 2005 Covenants.”
We believe this overstates the rights of an invitee.
[¶72] Wells Fargo’s invitees may use Wells Fargo’s access and easements so long as
Wells Fargo permits, but as invitees, that is the extent of their rights under the covenants.
Nothing in the covenants suggests that an invitee steps into the shoes of an owner and
23
shares the owner’s rights and privileges, including, for example, the right to extend use to
invitees—that is, an invitee does not acquire, merely by being given permission to use an
owner’s access, the right to have its own invitees. Thus, for the sake of clarity, we
modify the district court’s ruling to remove the statement that “ ‘invitees’ of Wells Fargo
have the same rights and privileges as Wells Fargo under the terms of the 2005
Covenants.”
III. Plaintiffs’ Reformation Claim
[¶73] Gumpel Trust asserts that the district court rejected Plaintiffs’ reformation claim
based solely on the language of the covenants. It thus claims two errors in the district
court’s ruling—that the court erred in denying the reformation claim without considering
extrinsic evidence and that the reformation claim should have been granted. We find no
error in the district court’s ruling.
[¶74] First, we disagree with Gumpel Trust’s characterization of the district court’s
ruling. While the court did find that the covenants were clear and unambiguous, the court
also concluded that “[t]here has also been no evidence submitted to the Court showing
that there was any mistake in the way the 2005 Covenants were drafted.” There is no
indication in the district court’s ruling that it refused to consider the evidence Plaintiffs
submitted in support of their reformation claim. That being the case, we need not address
Gumpel Trust’s claim that the court erred in basing its decision solely on the covenant
terms, and we turn to the merits of the reformation claim.
[¶75] This Court has defined reformation and the requirements for proving a claim for
reformation as follows:
Reformation is an equitable remedy arising from the
tenet that “ ‘equity treats that as done which ought to have
been done.’” Hutchins v. Payless Auto Sales, Inc., 2002 WY
8, ¶ 19, 38 P.3d 1057, 1063 (Wyo.2002), quoting 66
Am.Jur.2d Reformation of Instruments § 2 at 528 (1973). The
remedy is appropriate when a written instrument does not
accurately memorialize the parties’ agreement. In order to
reform an instrument, the court must conclude there is clear
and convincing evidence of:
(1) a meeting of the minds-a mutual understanding
between the parties-prior to the time a writing is entered
into, (2) a written contract, or agreement, or deed (3)
which does not conform to the understanding, by reason
of mutual mistake. Toland v. Key Bank of Wyoming, 847
P.2d 549, 554 (Wyo.1993); Gasaway v. Reiter, 736 P.2d
24749, 751 (Wyo.1987); Crompton v. Bruce, 669 P.2d 930,
934 (Wyo.1983).
Id. Clear and convincing evidence is “proof which would
persuade a trier of fact that the truth of the contention is
highly probable.” MacGuire v. Harriscope Broadcasting Co.,
612 P.2d 830, 839 (Wyo.1980). See also, Story v. State Bd. of
Medical Examiners, 721 P.2d 1013, 1014 (Wyo.1986); In re:
Matter of GP, 679 P.2d 976, 982 (Wyo.1984).
In order to establish a reformation claim, the proponent
must demonstrate that a mutual mistake was made by the
parties in the drafting of the instrument. The requirements for
showing a mutual mistake are: a prior agreement that the
written instrument undertook to evidence; a mistake occurred
in the drafting of the instrument; and an absence of fraud or
inequitable conduct on the part of a party. Mathis v.
Wendling, 962 P.2d 160, 164 (Wyo.1998).
Sanders v. Sanders, 2010 WY 77, ¶¶ 12-13, 234 P.3d 343, 348 (Wyo. 2010).
[¶76] Our first task in reviewing the district court’s rejection of the reformation claim is
to define precisely the mutual mistake that is purportedly at issue. The district court, in
its first summary judgment ruling, held that the 2005 Covenants conferred no benefit or
right on Copperleaf HOA and its members. That holding was not appealed, and we have
confirmed it in our modification of the district court's second summary judgment ruling.
The covenants are thus clear that they did not confer on Copperleaf HOA and its
members rights of access to the China Wall Tract.
[¶77] The mistake Gumpel Trust is asserting then is not a failure to exclude Copperleaf
HOA and its members from coverage under the covenants, but rather the failure of the
covenants to restrict Tract O’s access and easement rights. This means the question we
must focus on is whether the district court was presented with clear and convincing
evidence that the parties who negotiated the 2005 Covenants had a mutual agreement to
restrict the access and easement rights attached to Tract O.
[¶78] The evidence presented to the district court, which Gumpel Trust also points to on
appeal, consists of letters of intent and memorandums of understanding that preceded the
execution of the 2005 Covenants and the affidavits of Merrily Gumpel, Frank Cocchia
and Mary Williams. We have reviewed each of these documents and find they fall short
of the clear and convincing evidence required to support Gumpel Trust’s reformation
claim.
25
[¶79] With respect to the affidavits, Merrily Gumpel’s affidavit acknowledges that while
the Gumpels were original signatories to the covenants, the Gumpels bought their
property after negotiations were complete and they did not participate in the negotiations.
Merrily Gumpel’s affidavit therefore cannot and does not attest to any personal
knowledge of the negotiations. Mary Williams’ affidavit attested to the parties’
expressed understanding that Copperleaf HOA and its members would not have access
rights under the covenants. Her affidavit did not provide evidence that showed the
parties had a clear, mutual, and final agreement that Tract O would have restricted access
and easement rights. Frank Cocchia’s affidavit likewise fails to provide clear and
convincing evidence of such an agreement.
[¶80] The letters of intent and draft memorandums of understanding are similarly
deficient. They speak to restrictions on the access rights of Copperleaf HOA and its
members but not to restrictions on the access and easement rights attached to Tract O.
Additionally, the letters and memorandums do not contain language evidencing a final
agreement among the parties.
[¶81] Gumpel Trust has not presented clear and convincing evidence that the parties
who negotiated the 2005 Covenants had a mutual agreement to restrict the access rights
attached to Tract O. The 2005 Covenants may reflect a failure to understand the
ramifications of Tract O’s access rights, but the district court was not presented with clear
and convincing evidence that the covenants reflect a drafting mistake. We therefore find
no error in the district court’s rejection of this claim.
IV. Adequacy of the Recreational Easement Description
[¶82] In its final argument, Gumpel Trust contends that the Article VI, Section I
easement provided in the 2005 Covenants is void for lack of a sufficient description. We
again find no error in the district court’s rejection of this claim.
[¶83] The easement Gumpel Trust challenges is a recreational easement providing
access to the area along the China Wall rock formation. Article VI, Section I reads:
Except for the road crossings shown on the recorded
plat, the rock formation known as the China Wall will be left
in its present condition for the benefit of all owners of the
China Wall Tract. All owners shall have access to the
recreational lands and hiking and riding trails along the China
Wall.
[¶84] The requirement that an easement’s location be specifically described is statutory.
Wyo. Stat. Ann. § 34-1-141 provides, in relevant part:
26
(a) Except as provided in subsection (c) of this
section, easements across land executed and recorded after
the effective date of this act which do not specifically
describe the location of the easement are null and void and of
no force and effect.
****
(d) For purposes of this section the specific
description required in an easement shall be sufficient to
locate the easement and is not limited to a survey.
Wyo. Stat. Ann. § 34-1-141 (LexisNexis 2015).
[¶85] In addressing the sufficiency of an easement description, we have held that “the
type of description necessary to satisfy the statute will depend on the nature of the
encumbrance.” Horse Creek Conservation Dist. v. State ex rel. Wyo. Attorney Gen., 2009
WY 143, ¶ 38, 221 P.3d 306, 318 (Wyo. 2009). In Horse Creek, we upheld the
sufficiency of the description for a public access easement that provided access to a
reservoir and “all adjacent lands owned by the district.” Id. We explained:
Section 34–1–141(d) states that a legal description
from a survey is not required so long as the description is
sufficient to locate the easement. The question for our
determination, then, is whether the description of the lands
“adjacent” to the reservoir is sufficient to locate property
encumbered by the public access interest. As statutory and
contract interpretation principles make clear, the plain and
ordinary meaning of the words governs. “Adjacent” is
defined as “nearby” or “having a common endpoint or
border.” Webster’s Ninth New Collegiate Dictionary 56
(1991). See also Board of County Commissioners of the
County of Laramie v. City of Cheyenne, 2004 WY 16, ¶¶ 20–
31, 85 P.3d 999, 1005–09 (Wyo.2004) (interpreting the terms
“adjacent” and “contiguous” in annexation statutes). We
conclude that the plain meaning of the term “adjacent” is
sufficiently definite to allow the encumbered property to be
located.
Markstein v. Countryside I, L.L.C., 2003 WY 122,
¶¶ 44–45, 77 P.3d 389, 402 (Wyo.2003) presented a problem
similar to the one here. In Markstein, the owners of the
servient estate argued that an agreement for a fishing rights
27
easement was void because it did not contain a specific legal
description of the area encompassed by the easement in
accordance with Wyo. Stat. Ann. § 34–1–141. We ruled that
the agreement was not void because it provided “that the
rights involved are to be used within a particular region of the
servient estate” and there was “a specific legal description of
this land attached as an exhibit to the agreement.” The
agreement also incorporated sketch maps to denote the area of
land involved. Id., ¶ 45, 77 P.3d at 402.
Markstein indicates that the type of description
necessary to satisfy the statute will depend on the nature of
the encumbrance. Obviously, a fishing easement is different
from a road easement because more varied lands will be used
to fulfill the dominant owner’s right. In the context of a
fishing easement, a more general description of the areas
encumbered will be sufficient. Considering that the project
agreement included a legal description of the reservoir, and
that the nature of the public’s recreation interest is such that it
will be used over a broad area adjacent to the reservoir, the
rationale employed in Markstein reinforces our conclusion
that the description of all lands “adjacent” to the reservoir is
sufficient to locate the encumbrance.
Horse Creek, ¶¶ 36-38, 221 P.3d at 317-18.
[¶86] The China Wall is easily locatable, both on the ground and on the 1980 Record of
Survey, which marks its approximate location. The formation runs diagonally through
Section 15, in roughly equal parts through Tract O and the Gumpel Trust property, and
through a smaller portion of the Fuller property. The record contains the following aerial
overlay, which clearly depicts the formation.
28
easement and does not object to the easement’s use of the term “along.” Gumpel Trust’s
[¶87] Gumpel Trust does not claim vagueness in relation to the general location of the T.52 N.,R.105 W.
(RESURVEY)
SECTIO
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252
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objection is to the use of the terms “recreational lands” and “hiking and riding trails.” It
contends that the use of these terms makes the easement impossible to locate.
[¶88] With respect to “hiking and riding trails along the China Wall,” the Gumpel Trust
asserts there are no such trails and there is therefore no way to locate the easement. In
support of this assertion, it cites to Merrily Gumpel's affidavit, which contains her
statement, “There are no established horse or hiking trails along the China Wall.” This
affidavit evidence is inadequate to establish that there are no hiking or riding trails along
the China Wall. First, the affidavit’s statement references “established” trails, with no
explanation of what is meant by that term. More importantly, the affidavit provides no
foundation for the statement—something to explain how Ms. Gumpel came to determine
that no trails exist on the China Wall formation. We have said:
Rule 56 requires that an affidavit supporting or opposing a
summary judgment motion must be made based on personal
knowledge, set forth admissible facts, and show that the
affiant is competent to testify to the matters stated in the
affidavit. W.R.C.P. 56(e). As noted above, “the material
presented to the trial court as a basis for a summary judgment
should be as carefully tailored and professionally correct as
any evidence which is admissible to the court at the time of
trial.” Braunstein, ¶ 13, 226 P.3d at 832. An affidavit that
lacks foundation and specific supporting facts is inadequate
for purposes of opposing a summary judgment motion.
Rivers v. Moore, Myers & Garland, 2010 WY 102, ¶ 22, 236 P.3d 284, 291 (Wyo. 2010).
[¶89] The cited affidavit evidence is insufficient to establish that hiking and riding trails
do not exist along the China Wall, and the record contains no other evidence to support
this assertion. We therefore find no inherent defect in the easement’s reference to
“hiking and riding trails.”
[¶90] In objecting to the term “recreational lands,” Gumpel Trust argues (record cites
omitted):
[T]he term “recreational lands” is useless to locate the
easement—is that 10’ away from the wall, is that 100’ away
from the wall, is that 1000’ away from the wall? What is the
scope of recreation that is permitted on someone else’s
residential land, and what type of recreation is permitted?
The complete vagueness (and lack of clarifying extrinsic
evidence) voids this attempted grant.
30
[¶91] Gumpel Trust focuses its objection on the term “recreational lands,” a term that is
used elsewhere in the covenants.9 We do not, however, view “recreational lands” as the
operative term for locating the easement, but rather as a general description of the
activities permitted on the easement. This is evident in Gumpel Trust’s objection, which
speaks more to vagueness in the type of activities permitted than to the description of the
easement's location.
[¶92] The easement’s location is “along the China Wall,” which is similar to the access
easement we upheld in Horse Creek. Horse Creek, ¶¶ 36-38, 221 P.3d at 317-18
(upholding easement described as “adjacent” to reservoir). Because the easement’s
description is sufficient and Gumpel Trust points to no authority that an easement is void
if the activities it permits are not specifically delineated, we uphold the district court’s
order rejecting Gumpel Trust’s challenge to the easement.
CONCLUSION
[¶93] We uphold the district court’s ruling that Wells Fargo, as the owner of Tract O in
the China Wall Tract, has the same access rights as any other owner in the China Wall
Tract, except National Forest access. The access rights include the right to have invitees,
and Copperleaf HOA and its members qualify as invitees. We also uphold the district
court's rulings on Gumpel Trust’s reformation claim and challenge to the China Wall
recreational easement.
[¶94] We modify the district court’s ruling to remove the statement that “ ‘invitees’ of
Wells Fargo have the same rights and privileges as Wells Fargo under the terms of the
2005 Covenants.” We do this to clarify that Wells Fargo’s invitees may use Wells
Fargo’s access and easements so long as Wells Fargo permits, but as invitees, that is the
extent of their rights under the covenants.
[¶95] The district court decision is affirmed, as modified.
9
The identical reference to “recreational lands” is used in the covenant provision that provides the
Gumpels an access easement to and through Tract O lands north of the North Fork. Article VI, Section K
provides:
All owners shall have access to the recreational lands on the north side of
the North Fork of the Shoshone River as designated on the recorded plat,
and access through those lands to the river for fishing.
31