the-courtenay-c-and-lucy-patten-davis-foundation-and-amy-davis , 2014 WY 32 ( 2014 )

IN THE SUPREME COURT, STATE OF WYOMING
2014 WY 32OCTOBER TERM, A.D. 2013
March 4, 2014
THE COURTENAY C. AND LUCY
PATTEN DAVIS FOUNDATION AND
AMY DAVIS, Individually,
Appellants
(Plaintiffs),
v.
COLORADO STATE UNIVERSITY
RESEARCH FOUNDATION,
UNIVERSITY OF WYOMING
S-13-0121
FOUNDATION AND C.C. DAVIS
AND CO., LLC, A Wyoming Limited
Liability Company,
and
GREGORY A. PHILLIPS, WYOMING
ATTORNEY GENERAL, in his official
capacity,
Appellees
(Defendants).
Appeal from the District Court of Laramie County
The Honorable Thomas T.C. Campbell, Judge
Representing Appellants:
Steve Miller of Steve A. Miller, P.C., Denver, Colorado; Gay Woodhouse and
Tara B. Nethercott of Woodhouse Roden Nethercott, LLC, Cheyenne, Wyoming.
Argument by Mr. Miller.
Representing Appellees Colorado State University Research Foundation, University of
Wyoming Foundation, and C.C. Davis And Co., LLC, a Wyoming Limited Liability
Company:
Michael J. Sullivan and Alaina M. Stedillie of Lewis Roca Rothgerber, LLP,
Casper, Wyoming. Argument by Mr. Sullivan.
Representing Appellee Gregory A. Phillips, Wyoming Attorney General, In His Official
Capacity:
No Appearance
Before HILL, VOIGT,* BURKE, and DAVIS, JJ., and GOLDEN, J., (Ret.)
* Justice Voigt retired effective January 3, 2014
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.
GOLDEN, Justice (Ret).
[¶1] In 1997, the Courtenay C. Davis Foundation (“the Davis Foundation”) and Amy
Davis (collectively “the Davis Interests”) entered into an agreement with the Colorado
State University Research Foundation and the University of Wyoming Foundation (“the
University Foundations”). Through that agreement, the Davis Interests gifted land and
other interests to the University Foundations, subject to the terms of the agreement. In
2011, the University Foundations decided to sell the gifted property. The Davis Interests
filed an action in district court seeking to enjoin the sale of the gifted property, and the
district court dismissed the action after finding that the Davis Interests lacked standing to
bring the action. We affirm.
ISSUES
[¶2] The Davis Interests state the issues on appeal as:
Issue 1
Did the district court err in finding [the Davis
Interests] lacked standing?
Issue 2
[Do the Davis Interests] have standing as a
management committee member?
[¶3] The University Foundations phrase the issues on appeal as:
1. Was the transaction between the Davis Interests
(Appellants) and the University Foundations (Appellees) a
gift, or, as claimed by the Appellants, did it create an implied
trust?
2. In either event, do the Appellants have standing?
3. Is the issue raised by Appellants concerning the Davis
Interests’ entitlement to appoint a member to the five member
Ranch Management committee and Amy Davis' role as an
unpaid consultant a new argument that has been waived?
4. If it is not a new issue, do the Davis Interests’
entitlement to appoint a member to the five member Ranch
Management committee or Amy Davis’ role as an unpaid
consultant support Appellants’ standing argument?
1
FACTS
[¶4] The Y Cross Ranch is a working cattle operation located in Laramie and Albany
counties and is owned and operated by C.C. Davis and Co. L.L.C. (“LLC”). In 1997, the
Davis Foundation owned a 99% membership interest in the LLC, and Amy Davis owned
a 1% interest in the LLC. On August 25, 1997, the Davis Interests and the University
Foundations entered into a Memorandum of Agreement (“MOA”) by which the Davis
Interests agreed to donate the Ranch to the University Foundations, by transferring
ownership in the LLC to the University Foundations, with each university’s foundation
receiving a 50% share in the LLC. Concurrent with the donation from the Davis Interests
to the University Foundations, the LLC granted The Nature Conservancy a Deed of
Conservation Easement.
[¶5] The donation to the University Foundations included the membership interests in
the LLC; real property and improvements, subject to certain reservations and the
conservation easement; $50,000.00 in the LLC’s checking account; and equipment and
supplies, among other items. The MOA provided that the purpose of the gift to the
University Foundations was to:
A. generate scholarships and internships for CSU and UW
students through net revenues generated from ranch
operations, and
B. provide a “real world” working laboratory for
observation and study by CSU and UW students of western
ranching and resource management.
[¶6] The MOA directed that the University Foundations adopt an operating agreement
for the LLC and establish a management committee consisting of five individuals: (1) a
representative of the University of Wyoming Foundation; (2) a representative of the
Colorado State University Research Foundation; (3) the dean of the University of
Wyoming College of Agriculture (or his/her designee); (4) the dean of the Colorado State
University College of Agriculture (or his/her designee); and (5) a person appointed by the
Davis Foundation. The MOA further specified that “Ms. Amy Davis will be engaged as
a non-paid consultant to the Management Committee for a period of seven years after the
date of the gift to ensure that the intent of the donors is met.”
[¶7] In addition to outlining the LLC organizational structure, the MOA established a
“Prospective Business Plan” for the Ranch. The MOA described Phase 1 as a period not
expected to exceed seven years during which the Ranch was to be stabilized and “some
degree of predictability” brought to its operating requirements. The MOA described
Phase 2 of the business plan as a period of an additional seven years, during which the
management committee was to “concentrate on making funds available from ranching
2
operations for transfer to the endowment funds in support of scholarship/internship
support and the establishment and implementation of activities for observation, research
and study laboratories/activities.”
[¶8] The MOA addressed the options available to the University Foundations at the
conclusion of the fourteen-year span of phases one and two, providing, in part:
X. Duration of the CSU-UW Joint Ownership. It
is the hope and expectation of the donors that the joint
ownership of the ranch (through the structure of the LLC)
will thrive and be a model of shared governance for a
common interest. . . .
At the conclusion of Phase 2, fourteen years after the
date of the gift, the members are encouraged to continue the
joint arrangement as originally contemplated for an indefinite
term. However, in the event that either member wishes to
dissolve the joint arrangement, the dissolution may be
accomplished by one of the following alternatives:
A. The ranch and other assets of the LLC
would be sold at market value, subject to the conservation
easement, with all net proceeds divided equally between the
members and to be deposited in the respective endowments to
fund scholarship/internships as provided in this agreement; or
B. By mutual agreement, one member
would become the sole owner of the ranch and other assets of
the LLC. In that event, the acquiring member would
purchase from the other member the assets of the LLC or the
other member’s interest in the LLC at the appraised value of
the membership interest in the LLC at the time of the initial
gift in 1997, immediately after the grant of conservation
easement. (Purchase at the 1997 value would make it easier
for the acquiring institution to continue stewardship and use
of the ranch for the intended purposes.) The acquiring
member would continue to operate the ranch in substantially
the same manner as herein set forth and for the same purposes
for a period of no less than ten (10) years.
C. Not earlier than the conclusion of Phase
2 under the business plan, in the event both members wish to
acquire the ranch and other assets of the LLC to the exclusion
3
of the other member, then the member which first wishes to
acquire those interests shall determine a value and the other
member will decide whether it wishes to buy or sell.
Dissolution of the LLC, transfer of the LLC
membership interests, and liquidation of LLC assets shall be
carried out as specified in the Operating Agreement of the
C.C. Davis and Co. L.L.C.; provided, however, that no
provision in this Memorandum of Agreement or the
Operating Agreement shall replace or take priority over
rights, duties or obligations arising under applicable laws of
the state of Wyoming.
[¶9] In 2011, after fourteen years had elapsed following the donation from the Davis
Interests, the University Foundations decided to sell the Ranch, and they listed it for sale
through a sealed bid procedure to take place on November 13, 2012. On September 28,
2012, the Davis Interests filed an action in district court alleging breach of contract,
unjust enrichment and breach of the covenant of good faith and fair dealing. The Davis
Interests sought rescission of the MOA and establishment of a constructive trust in their
favor. On that same date, the Davis Interests filed an application for preliminary
injunction, seeking to enjoin sale of the property during the pendency of the action.
[¶10] On October 22, 2012, the University Foundations moved to dismiss the complaint
for lack of standing.1 Specifically, the University Foundations argued that the Ranch
donation was a charitable gift and, by common law, the only party with standing to
enforce a charitable gift is the attorney general. On November 13, 2012, the Davis
Interests filed an amended complaint, which added allegations that the MOA created an
implied charitable trust and that the University Foundations had breached their fiduciary
duties. The Davis Interests also added the attorney general as a party but asserted no
claims against him, and they requested only the relief they had originally requested—
rescission of the MOA and establishment of a constructive trust. In opposition to the
motion to dismiss, the Davis Interests argued that the donation created an implied
charitable trust, that Wyoming’s Uniform Trust Code governs the trust, and that the Code
grants the Davis Interests, as the trust’s settlor, standing to enforce the terms of the trust.
The Davis Interests also argued that the MOA was a conditional contract, with both
conditions precedent and subsequent, and that the Davis Interests had standing to assert
the forfeited donation.
[¶11] The district court granted the University Foundations’ motion to dismiss. The
court found that the donation by the Davis Interests was a gift, that it did not create a
1
The University Foundations noted in their motion to dismiss that following Davis Interests’ filing of the
complaint, the parties stipulated to postpone any sale of the Ranch, pending outcome of the litigation.
4
charitable trust, and that only the attorney general had standing to enforce any restrictions
on the gift. Alternatively, the court concluded that even if the donation could be
construed to create an implied charitable trust, the attorney general would still be the only
party with standing to enforce the MOA. The court reasoned that Wyoming’s Uniform
Trust Code did not apply because, by the Code’s plain terms, it applies only to express
trusts. The court thus concluded that, in the absence of the Code’s provision conferring
standing on the settlor, the common law rule limiting standing to the attorney general was
controlling. Finally, the court found that the MOA contained no provision that would
force a forfeiture of the donation should the University Foundations fail to comply with
an MOA requirement, and the court therefore rejected the Davis Interests’ condition
subsequent argument.
[¶12] The Davis Interests timely appealed the district court’s order dismissing the
complaint for lack of standing. We affirm.
STANDARD OF REVIEW
[¶13] This Court reviews a district court’s decision to grant a motion to dismiss de novo.
Ridgerunner, LLC v. Meisinger, 2013 WY 31, ¶ 10, 297 P.3d 110, 114 (Wyo. 2013). We
have said:
When claims are dismissed under W.R.C.P. 12(b)(6),
this court accepts the facts stated in the complaint as true and
views them in the light most favorable to the plaintiff. Such a
dismissal will be sustained only when it is certain from the
face of the complaint that the plaintiff cannot assert any facts
that would entitle him to relief. Story v. State, 2001 WY 3, ¶
19, 15 P.3d 1066, ¶ 19 (Wyo. 2001). Dismissal is a drastic
remedy and is sparingly granted; nevertheless, we will sustain
a W.R.C.P. 12(b)(6) dismissal when it is certain from the face
of the complaint that the plaintiff cannot assert any set of
facts that would entitle that plaintiff to relief. Robinson v.
Pacificorp, 10 P.3d 1133, 1135-36 (Wyo. 2000).
Ridgerunner, ¶ 10, 297 P.3d at 114 (quoting Bonnie M. Quinn Revocable Trust v. SRW,
Inc., 2004 WY 65, ¶ 8, 91 P.3d 146, 148 (Wyo. 2004)); see also Miller v. Wyo. Dep’t of
Health, 2012 WY 65, ¶ 11, 275 P.3d 1257, 1260 (Wyo. 2012) (“A motion to dismiss,
even though sparingly granted, is the proper method for testing the legal sufficiency of
the allegations and will be sustained when the complaint shows on its face that the
plaintiff is not entitled to relief.” (quoting Mummery v. Polk, 770 P.2d 241, 243 (Wyo.
1989))).
5
DISCUSSION
[¶14] The Davis Interests assert in their statement of facts that the MOA imposed a
condition subsequent, but they do not on appeal present an issue or argument related to
that claim, or otherwise directly contest the district court’s rejection of their condition
subsequent claim. Nor do the Davis Interests argue that the donation and MOA created
an express trust. Instead, the Davis Interests argue that the donation and MOA created an
implied trust, rather than a restricted gift, and that the Davis Interests had standing to
enforce the MOA as settlor of the implied trust. Alternatively, they argue that they have
standing as a member of the management committee established by the MOA. We will
first address the Davis Interests’ implied trust argument and then turn to the standing
question.
A. Implied Trust
[¶15] We begin our discussion with a brief summary of the distinctions between express
and implied trusts and the different types of implied trusts. Under Wyoming law, express
trusts are governed by statute, and the elements of an express trust are statutorily defined.
See Wyo. Stat. Ann. §§ 4-10-101 to -1103 (LexisNexis 2013). In contrast, an implied
trust is an equitable remedy. 2 1 Austin Wakeman Scott et al., Scott and Ascher on Trusts
§ 3.4.6 (5th ed. 2006); 76 Am.Jur.2d Trusts § 128 (2005).
[¶16] Implied trusts may be further classified as either a constructive trust or a resulting
trust. 76 Am.Jur.2d, supra, § 128. A constructive trust is “[a]n equitable remedy that a
court imposes against one who has obtained property by wrongdoing. A constructive
trust, imposed to prevent unjust enrichment, creates no fiduciary relationship. Despite its
name, it is not a trust at all.” Black’s Law Dictionary 1649 (9th ed. 2009); see also Baker
v. Ayres and Baker Pole and Post, Inc., 2007 WY 185, ¶ 16, 170 P.3d 1247, 1251 (Wyo.
2007) (“A constructive trust is an equitable remedy imposed to compel a person who
unfairly holds a property interest to hold that property in trust for the person for whom, in
equity and good conscience, it should be held.”). A resulting trust is one “imposed by
equity when property is transferred under circumstances suggesting that the transferor did
not intend for the transferee to have the beneficial interest in the property.” Black’s Law
Dictionary 1653 (9th ed. 2009); see also McConnell v. Dixon, 68 Wyo. 301, 332, 233
P.2d 877, 887 (1951) (resulting trust arises in favor of person who transferred property or
caused transfer under circumstances raising inference that he intended to transfer bare
legal title and not to give transferee beneficial interest). Although both constructive trusts
and resulting trusts are implied trusts, they are distinct concepts:
2
In some states, implied trusts are also governed by statute, but that is not the case in Wyoming. See 76
Am.Jur.2d Trusts § 129 (2005).
6
Despite some confusion in the courts between resulting
and constructive trusts, the concepts are distinguishable. A
resulting trust exists where the acts or expressions of the
parties indicate an intent that a trust relation result from their
transaction; a constructive trust is a trust imposed by a court
of equity to compel a person who unfairly holds a property
interest to convey such interest to the rightful owner.
76 Am.Jur.2d, supra, § 132 (footnotes omitted); see also Cook v. Elmore, 27 Wyo. 163,
169-70, 192 P. 824, 826 (1920) (distinguishing between resulting and constructive trusts).
[¶17] In their original complaint, the Davis Interests sought imposition of a constructive
trust in their favor. They repeated that prayer for relief in their amended complaint and
also added the allegation that an implied trust had been created when the parties entered
into the MOA. In asserting their standing to bring this action, the Davis Interests have
not, however, argued that their request for establishment of a constructive trust imbued
them with standing. Their argument has been and remains that an implied trust must be
recognized to give effect to the donor’s intent that the property be held in trust, and
recognition of that implied trust gives them standing to bring this action. The implied
trust that the Davis Interests assert in advocating for their standing is essentially the
resulting trust form of an implied trust, and accordingly, we will look to the law
governing resulting trusts to evaluate whether the MOA created an implied trust.
[¶18] As indicated above, a resulting trust is recognized where the circumstances
indicate that the transferor of property did not intend the transferee to have the beneficial
interest in the property and instead intended that the property be held in trust. Intent as an
element of a resulting trust is described as follows:
Intention, although only presumed, implied, or
supposed by law from the nature of the transaction or from
the facts and circumstances accompanying the transaction,
particularly the source of consideration, is always an element
of a resulting trust. In fact, a resulting trust is sometimes
referred to as an “intention-enforcing” trust. Such a trust
arises by operation of law, without an expressed intent; it
arises by implication of law to enforce the intent of the
parties, as presumed or inferred from the facts and
circumstances surrounding the transaction. Thus, a resulting
trust exists where the acts or expressions of the parties
indicate an intent that a trust relation was to have resulted
from their transaction. Likewise, as sometimes stated, a
resulting trust is designed to give effect to the actual intention
of a party although that intention was not directly expressed.
7
A resulting trust generally arises when the parties have
used ambiguous language which the court construes as
showing a trust intent, or where the parties have expressed no
intent to create a trust by words, but have performed acts
from which the court infers that a trust was intended. Such a
trust attempts to give a vague or incomplete agreement
substance that was originally intended by the parties.
However, a resulting trust does not arise where the transfer of
property is made to one person and the purchase price is paid
by another if the person by whom the purchase price is paid
manifests the intention that no resulting trust should arise.
Additionally, where an alleged trust relationship is just as
consistent with that of a gift or loan, courts will ordinarily not
impress a resulting trust.
A resulting trust arises or may be judicially imposed
on one holding legal title to property if it was obtained under
facts and circumstances disclosing an intention that the
beneficial interest was not to be enjoyed by the legal
titleholder; in such instances, the courts infer that the holder
of title holds it in trust for the beneficial owner, although
there is no express intention to create a trust.
76 Am.Jur.2d, supra, § 138 (footnotes omitted).
[¶19] As both parties agree, this Court, in Town of Cody v. Buffalo Bill Mem’l Ass’n, 64
Wyo. 468, 491-93, 196 P.2d 369, 377 (1948), adopted a common law implied trust
remedy, acknowledging that even where an express trust is not created, the circumstances
may demand that a property conveyance result in the creation of an implied trust.
Although the Court did not use the term “resulting trust” in its decision, the implied trust
recognized in Town of Cody is consistent with a resulting trust as defined above; that is, a
trust implied to give effect to the parties’ intentions where those intentions are otherwise
not clearly expressed. The Court explained:
Grants made to a charitable corporation may, of course, be of
various kinds. They may be absolute or, on the other hand,
proper terms, conditions and directions may be annexed
thereto. In the latter case, the terms, conditions and directions
annexed must be carried out. If the grants are absolute, and no
purpose is expressed for which they are made, the property
may be used in such manner as those in control deem best for
the accomplishment of the corporate purposes, and these
8
purposes are determined by the charter and the statutes
relating thereto. In such case, there is a presumption that the
grants were intended for charitable uses, and an implied trust,
enforceable in the courts, arises that they shall be so used.
Town of Cody, 64 Wyo. at 491-92, 196 P.2d at 377 (citations omitted).
[¶20] In considering whether we should find an implied trust in the case now before us,
it is helpful to review the facts with which the Court was confronted when it recognized
the creation of an implied trust in Town of Cody. In Town of Cody, the Court had before
it a title dispute over several tracts of land in or adjoining Cody that had been donated to
the Buffalo Bill Memorial Association. 64 Wyo. at 480-81, 196 P.2d at 372. A museum
was constructed on a portion of the land, and the association used admission charges to
defray the museum’s operating costs. Id. The dispute before the Court arose when the
association experienced a slump in revenue due to World War II’s impact on museum
visits and turned to the town for financial assistance. Id. In exchange for the town’s
agreement to cover certain of the association’s expenses, the association conveyed all of
its property to the town. Id. After the war ended and the association was able to repay
the town, the association sought return of the property. Id. The town refused to return
the property and filed suit to quiet title to the property. Id.[¶21] Although not expressly set out as the issue in Town of Cody, our review indicates
that the central question with which the Court grappled in the case was whether the
association’s conveyance of the disputed property to the town was void because the
association lacked authority to convey the property. 64 Wyo. at 495-96, 196 P.2d at 377-
78. In particular, the Court had to determine whether the association owned the land or
held it in trust, understanding that a finding that the association held the land in trust
would restrict its ability to freely convey the property. Id. In considering that question,
the Court had to look to the terms of the original conveyances to the association, which
were described as follows:
The corporation acquired about 55 acres of land
situated in or adjacent to the town of Cody. For convenience,
it may be said that the acreage is divided into three different
tracts. The museum of the association is located on Tract No.
1, being the northeasterly tract of the 55 acres hereinbefore
mentioned, and the extent thereof is about 400 feet in length
and about 300 feet in width. This tract of land was held by the
Buffalo Bill Memorial Association under a deed executed by
Hiram S. Cody, Francis A. Cody, Harry B. Cody, and Mary
Jester Allen, individually and as trustees of the Cody Family
Memorial Board. The deed reads in part as follows:
9
The importance of Colonel William F. Cody’s
contribution, and the magnitude of his service, to his
beloved country places a burden upon us who bear his
name. In partial fulfilment of that duty placed upon us
by our blood kinship to a great man, we hereby grant,
bargain, sell and convey, in consideration of One
Dollar and other valuable consideration, to the Buffalo
Bill Memorial Association, Incorporated, for the
purpose of a perpetual Memorial to Colonel William F.
Cody (Buffalo Bill) the following described property:
(Here follows the description.)
We feel that it is fitting and proper that those
who are bound to him by ties of blood should
continually work to promote this memorial. We,
therefore, in a spirit of service, make it a condition of
this grant, that, perpetually, two members of the Cody
family be members of the governing body of the
Buffalo Bill Memorial Association, Incorporated.
During their lifetime, Hiram S. Cody and Mary Jester
Allen, or persons designated by them, shall be the
members of said Board representing the Cody family.
It is also made a condition of this grant that
during her lifetime, Mary Jester Allen shall remain in
charge of the Buffalo Bill Museum, and the relics and
mementos placed therein.
Tract No. 2 is located immediately south of Tract No.
1, and has for many years been used as an athletic field by
School District No. 6, supra, and was dedicated by the Town
to the school district for that purpose. We are told that it is to
be called the William F. Cody Memorial Field. The north half
of this tract was deeded by the Lincoln Land Company to the
Buffalo Bill Memorial Association without any conditions or
reservations. The south half of the tract was conveyed to the
association by Robert D. Dripps “in order to perpetuate the
memory of Colonel William F. Cody.” Tract No. 3, consisting
of forty acres, is located west of the other tracts, and also was
conveyed to the association by the conveyance of Robert D.
Dripps above mentioned. The equestrian statute of William F.
Cody is located on the northern boundary of this tract.
10
Town of Cody, 64 Wyo. at 484-85, 196 P.2d at 373-74.
[¶22] There was no contention in Town of Cody that an express trust had been created in
conjunction with any of the original land conveyances to the association. And, as the
above-quoted description shows, the conditions or restrictions that were placed on the
conveyed land’s use ranged from broad and general to non-existent. None of the
conveyances spoke to the association’s authority to sell or otherwise dispose of the
donated land. Faced with this void, the Court looked to the circumstances surrounding
the conveyances, specifically that the conveyances were made to the association as a
charitable entity chartered
to establish and maintain a historical society for the
preservation of the history and antiquities of the County, the
Town of Cody, the County of Park and the State of
Wyoming; to build, construct and maintain an historical
monument or memorial statue in honor of and to perpetuate
the memory of our late lamented fellow townsman Hon.
William F. Cody, (Buffalo Bill).
Town of Cody, 64 Wyo. at 482-83, 196 P.2d at 373.
[¶23] Given this context, the Court found “that the grants were intended for charitable
uses, and an implied trust, enforceable in the courts, arises that they shall be so used.” Id.
at 492, 196 P.2d at 377. As we noted above, the Court did not refer to the implied trust as
a “resulting trust,” but the trust was by its nature and definition a resulting trust, imposed
by the Court to give effect to the intent of the parties to the conveyance. See id. at 493-
95, 196 P.2d at 377-78.
[¶24] We agree with the University Foundations that the case now before the Court is
fundamentally different from that before the Court in Town of Cody, and we conclude
that the facts and circumstances of this case simply cannot support the finding of a
resulting trust. To reiterate:
[A] resulting trust exists where the acts or expressions of the
parties indicate an intent that a trust relation was to have
resulted from their transaction. Likewise, as sometimes
stated, a resulting trust is designed to give effect to the actual
intention of a party although that intention was not directly
expressed.
A resulting trust generally arises when the parties have
used ambiguous language which the court construes as
showing a trust intent, or where the parties have expressed no
11
intent to create a trust by words, but have performed acts
from which the court infers that a trust was intended. Such a
trust attempts to give a vague or incomplete agreement
substance that was originally intended by the parties.
76 Am.Jur.2d, supra, § 138 (footnotes omitted).
[¶25] In Town of Cody, the Court had before it conveyance instruments that imposed
vague restrictions, if any, on how the conveyed property was to be used, and it thus had a
gap that would support imposition of a resulting trust. Here, the Court is presented with
an MOA that is lengthy, detailed, and specific, and that the Davis Interests do not suggest
is in any way ambiguous. Indeed, the MOA leaves no ambiguity in how the property was
to be used, when and how it could be disposed of, and how the proceeds could be used in
the event the University Foundations decided to sell the property. Under these
circumstances, we can find no void in the parties’ agreement that requires filling by the
creation of a resulting trust.
[¶26] We turn then to the question of whether the MOA reflects an unexpressed
intention that the property conveyed to the University Foundations be held in trust. Such
an intention must be established by clear and convincing evidence. Carpenter &
Carpenter v. Kingham, 56 Wyo. 314, 384, 109 P.2d 463, 475-76 (1941); Platte County
State Bank v. Frantz, 33 Wyo. 326, 343, 239 P. 531, 537 (1925); see also 76 Am.Jur.2d,
supra, § 135.
[¶27] The Davis Interests argue that the “MOA is replete with specific and express
restrictions, thus making it a trust.” In further support of their argument, they have
submitted an over two-page non-exhaustive list of twenty-five restrictions that the MOA
imposed on the University Foundation’s use of the conveyed property. While the list of
restrictions does underscore the MOA’s attention to detail, we do not agree with the
Davis Interests that the presence of such restrictions necessarily converts a gift into a
trust. See Persan v. Life Concepts, Inc., 738 So.2d 1008, 1010 (Fla. Dist. Ct. App. 1999)
(rejecting claim that land donation for specific purpose of building homes for disabled
persons created a resulting trust). The Persan court reasoned as follows in finding no
trust based on restrictions attached to a gift:
Although we may agree that it is regrettable that the
homes will not continue to operate as residences for the
disabled plaintiffs, there is no merit to the plaintiffs’ suit and
the lower court correctly entered a judgment of dismissal after
trial. The lower court found that the donations had been made
for a specific purpose but that no trust was proved. The
dissent finds this to be inconsistent but it is not. Making a gift
to a charity for a specific project or purpose does not create a
12
charitable trust. For this court to suggest that it does would
create havoc for charitable institutions. A charity has to be
able to know when a donation is a gift and when it is merely
an offer to fund a trust for which the charity is taking on
fiduciary responsibilities. The creation of such a trust must be
express. Besides, as the lower court noted, the object of the
gift was carried out--the two homes were built and were
operated for almost fifteen years.
Id.[¶28] As is evident from this Court’s holding in Town of Cody, we do not agree with the
Florida court’s view that a charitable trust must be express to be enforced. We do,
however, agree with the court’s emphasis on giving effect to the parties’ intent and with
the rejection of a rule that would require a restricted gift be treated as a trust per se. As
another court explained:
Where the alleged trust relationship is just as consistent with
that of a gift or loan, courts will not ordinarily impress a
resulting trust. This is a natural corollary of the general
definition of a resulting trust: A resulting trust arises to give
effect to the relationship intended by the parties thereto.
Lewis v. Poduska, 481 N.W.2d 898, 902 (Neb. 1992) (citations & quotation marks
omitted); see also Meima v. Broemmel, 2005 WY 87, ¶ 55, 117 P.3d 429, 447 n.28 (Wyo.
2005) (“[I]n general at least, no trust is created where the transaction is as consistent with
another type of transaction as with that of a trust.” (quoting Dallas Dome Wyo. Oil Fields
Co. v. Brooder, 55 Wyo. 109, 127, 97 P.2d 311, 317-18 (1939))); 76 Am.Jur.2d, supra, §
138 (“[W]here an alleged trust relationship is just as consistent with that of a gift or loan,
courts will ordinarily not impress a resulting trust.”) (footnotes omitted); In re Marriage
of Kendra, 815 N.E.2d 22, 25 (Ill. App. Ct. 2004) (“A resulting trust will not be found
where the transaction can be construed in any other reasonable fashion.”).
[¶29] In the Davis Interests’ Amended Complaint, they alleged that “[a]n implied
charitable trust was created when the parties entered into the MOA.” The Davis Interests
alleged no conduct by the parties, other than the MOA’s execution, to support their
allegation that an implied trust was created. Because the Davis Interests’ sole allegation
is that it was the MOA that created an implied trust, it is in the MOA that we must find
the alleged intent to create a trust. We agree with the district court that the MOA reflects
no such intent.
[¶30] At the outset, we note that by our count the MOA uses the term “gift” to describe
the parties’ transaction at least twenty times, and at no time does the MOA use the term
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“trust.” Although we understand that the language used is not controlling in our search
for intent, we are at a loss to find any requirement in the MOA that would suggest that
the language used was accidental or is otherwise not reflective of the parties’ intent.
First, while the property donors did explicitly set forth in the MOA that it was their desire
to keep the ranch intact and operated as a working cattle ranch, they accomplished this
objective by granting a conservation easement to The Nature Conservancy. Specifically,
the MOA states:
It is the strong desire of the donors, which is
acknowledged by the Foundations, that the wishes of
Courtenay C. Davis shall be carried out to the effect that the
ranch will be kept intact and operated as a working cattle
ranch. To that end, concurrently with the closing of the
transaction to make the gift, a conservation easement will be
granted to a third party possessing the qualifications under §§
501(c)(3) and 170(h) of the Internal Revenue Code, and under
any other applicable law, who will accept, hold, preserve, and
protect in perpetuity all of the LLC land. It is the purpose of
this easement to assure that the entire ranch property will be
retained forever in its natural scenic, historic, agricultural,
forested and/or open space condition and to prevent any use
of the ranch that will significantly impair or interfere with the
conservation values of the property. Donors intend that this
easement will confine the use of the property to such
activities, including, without limitation, those involving
farming, ranching and education as are consistent with the
purpose of this gift.
[¶31] As the district court observed, the granting of the conservation easement
accomplished the donors’ objectives without establishing a trust and made a trust
unnecessary. Indeed, the easement is consistent with Section X of the MOA which is the
section we find to be the MOA’s most telling expression of the parties’ intent that the
entirety of the Davis Interests in the LLC and its assets were to be transferred to the
University Foundations. Section X authorizes the University Foundations, “in the event
that either member wishes to dissolve the joint arrangement,” to, among other options,
sell the ranch and other assets of the LLC, divide the proceeds, and use those proceeds to
fund the MOA-defined scholarship endowments. It is clear from this provision that the
donors did not intend to require the University Foundations to hold the property in trust
indefinitely as a working ranch. The MOA expressly provided for sale of the property
and provided for that eventuality with the granting of a conservation easement that would
govern how the property would be used in the event it was no longer in possession of
owners subject to the MOA.
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[¶32] We conclude that the MOA spelled out with clarity how the conveyed property
was to be used, and we find no intent that the University Foundations were to hold the
property in trust. Considering this Court’s longstanding approach to allegations of an
intent to create a trust, that “no trust is created where the transaction is as consistent with
another type of transaction as with that of a trust,” we can find no occasion under these
circumstances to impose a resulting trust. See Meima, ¶ 55, 117 P.3d at 447 n.28; Dallas
Dome Wyo. Oil Fields Co., 55 Wyo. at 127, 97 P.2d at 317-18.3
B. Standing
[¶33] Having concluded that the donation to the University Foundations was a gift and
did not create a charitable trust, the standing question we must answer is whether the
Davis Interests have standing to enforce the terms of that gift. We agree with the district
court and the University Foundations that only the attorney general has standing to
enforce a charitable gift.
[¶34] At common law, only the attorney general may enforce the terms of a charitable
gift. Hardt v. Vitae Found., Inc., 302 S.W.3d 133, 137 (Mo. Ct. App. 2009); Carl J.
Herzog Found., Inc. v. Univ. of Bridgeport, 699 A.2d 995, 997 (Conn. 1997). The
Connecticut court explained:
At common law, a donor who has made a completed
charitable contribution, whether as an absolute gift or in trust,
had no standing to bring an action to enforce the terms of his
or her gift or trust unless he or she had expressly reserved the
right to do so. “Where property is given to a charitable
corporation and it is directed by the terms of the gift to devote
the property to a particular one of its purposes, it is under a
duty, enforceable at the suit of the [a]ttorney [g]eneral, to
devote the property to that purpose.” (Emphasis added.) 2
Restatement (Second), Trusts § 348, comment (f), p. 212
(1959); Attorney General v. First United Baptist Church of
Lee, 601 A.2d 96, 98 (Me.1992); see Sarkeys v. Independent
School District No. 40, 592 P.2d 529, 533 (Okla.1979) (“[i]t
has long been recognized at common law that the [a]ttorney
[g]eneral has the duty of representing the public interest in
securing the enforcement of charitable trusts”); Wilbur v.
3
The district court observed that although the Davis Interests did not allege in their complaint or amended
complaint that the MOA created an express trust, they did argue the statutory elements of an express trust.
For the reasons discussed above, we do not find the statutory elements applicable and have not used them
in our analysis. In any event, however, if an express trust had been alleged, the lack of donor intent to
create a trust would have precluded finding even an express trust. See Wyo. Stat. Ann. § 4-10-403(a)(ii)
(a trust is created only if settlor indicates an intent to create a trust).
15
University of Vermont, 129 Vt. 33, 44, 270 A.2d 889 (1970)
(where no provision in trust instrument for forfeiture or
reverter, “the remedy for a breach of trust is by suit at the
instance of the [a]ttorney [g]eneral of the state to compel
compliance”). At common law, it was established that
“[e]quity will afford protection to a donor to a charitable
corporation in that the [a]ttorney [g]eneral may maintain a
suit to compel the property to be held for the charitable
purpose for which it was given to the corporation.” (Emphasis
added; internal quotation marks omitted.) Lefkowitz v.
Lebensfeld, 68 A.D.2d 488, 494–95, 417 N.Y.S.2d 715(1979). “The general rule is that charitable trusts or gifts to
charitable corporations for stated purposes are [enforceable]
at the instance of the [a]ttorney [g]eneral.... It matters not
whether the gift is absolute or in trust or whether a technical
condition is attached to the gift.” (Internal quotation marks
omitted.) Id., at 495, 417 N.Y.S.2d 715.
“The theory underlying the power of the [a]ttorney
[g]eneral to enforce gifts for a stated purpose is that a donor
who attaches conditions to his gift has a right to have [h]is
intention enforced.” Id., at 495-96, 417 N.Y.S.2d 715. The
donor’s right, however, is enforceable only at the instance of
the attorney general; Wier v. Howard Hughes Medical
Institute, 407 A.2d 1051, 1057 (Del.Ch. 1979) (attorney
general “has the exclusive power to bring actions to enforce
charitable trusts” [emphasis added]; Lopez v. Medford
Community Center, Inc., 384 Mass 163, 167, 424 N.E.2d 229(1981) (common law rule that “it is the exclusive function of
the [a]ttorney [g]eneral to correct abuse in the administration
of a public charity by the institution of proper proceedings”
[emphasis added]); and the donor himself has no standing to
enforce the terms of his gift when he has not retained a
specific right to control the property, such as a right of
reverter, after relinquishing physical possession of it. See,
e.g., Marin Hospital District v. State Dept. of Health, 92
Cal.App.3d 442, 448, 154 Cal.Rptr. 838 (1979) (fact that
charity is bound to use contributions for purposes for which
they were given does not confer to donor standing to bring
action to enforce terms of gift). As a matter of common law,
when a settlor of a trust or a donor of property to a charity
fails specifically to provide for a reservation of rights in the
trust or gift instrument, “‘neither the donor nor his heirs have
16
any standing in court in a proceeding to compel the proper
execution of the trust, except as relators.’” Smith v.
Thompson, 266 Ill.App. 165, 169 (1932), quoting 2 J. Perry,
Trusts and Trustees (7th Ed. 1929) § 732a, pp. 1255-56; see
Wilbur v. University of Vermont, supra, 129 Vt. at 44, 270
A.2d 889 (breach of trust “creates no right in the donor’s
heirs to enforce a resulting trust”); Hagaman v. Board of
Education, 117 N.J.Super. 446, 454, 285 A.2d 63 (1971)
(heirs of settlor generally cannot enforce charitable trust).
“There is no such thing as a resulting trust with respect to a
charity .... Where the donor has effectually passed out of
himself all interest in the fund devoted to a charity, neither he
nor those claiming under him have any standing in a court of
equity as to its disposition and control.” (Internal quotation
marks omitted.) Smith v. Thompson, supra, at 169; see Wier v.
Howard Hughes Medical Institute, supra, at 1057; but see
McGee v. Vandeventer, 326 Ill. 425, 441, 158 N.E. 127(1927). On the basis of the weight of the foregoing
authorities, we conclude that it is clear that the general rule at
common law was that a donor had no standing to enforce the
terms of a completed charitable gift unless the donor had
expressly reserved a property interest in the gift.
Carl J. Herzog Found., 699 A.2d at 997-99 (footnotes omitted) (alterations in original).
[¶35] By statute, standing to enforce an express charitable trust has been expanded in
Wyoming beyond the common law rule of standing. See Wyo. Stat. Ann. § 4-10-406(c)
(LexisNexis 2013) (specifying who may enforce express charitable trust); see also Hicks
v. Dowd, 2007 WY 74, ¶ 28, 157 P.3d 914, 921 (Wyo. 2007) (recognizing that “a
charitable trust may be enforced by a settlor, the attorney general, or a qualified
beneficiary of the trust”). The same is not true of standing to enforce a charitable gift.
No Wyoming statute has expanded the common law standing to enforce a charitable gift,
and we agree with the majority rule that such standing should remain limited to the
attorney general. See Iris J. Goodwin, Donor Standing to Enforce Charitable Gifts: Civil
Society vs. Donor Empowerment, 58 Vand. L. Rev. 1093, 1145 (2005) (“To return to the
particulars of the current law with respect to donor standing, nearly all the modern
American authorities—decisions, model acts, statutes, and commentaries—deny a donor
standing to enforce a restricted gift to public charity absent express retention of a
reversion in the donative instrument.”).
[¶36] The Davis Interests do not contend that they retained, through the MOA, a
reversion or any other right to enforce the terms of the MOA. What the Davis Interests
do contend on appeal is that because the Davis Foundation retained, under the MOA, the
17
right to appoint a member of the management committee created by the MOA, the Davis
Interests have a personal stake in the enforcement of the MOA and therefore standing.
We reject this contention. First, this is not an argument the Davis Interests presented to
the district court, and “[t]his Court strongly adheres to a rule that it will not address issues
that were not properly raised before the district court.” See In re Guardianship of
Lankford, 2013 WY 65, ¶ 28, 301 P.3d 1092, 1101 (Wyo. 2013). Moreover, the Davis
Interests have not articulated how an interest arising from service on the management
committee allows them to circumvent the common law rule that only the attorney general
may enforce the restrictions on charitable gifts.
[¶37] The common law rule allows only the attorney general standing to bring an action
to enforce the terms of a charitable gift. This remains the majority rule, and it is the rule
to which we adhere in this decision. We therefore conclude that the district court
properly ruled that the Davis Interests lacked standing to enforce the terms of the MOA.
CONCLUSION
[¶38] The district court correctly concluded that the donation from the Davis Interests to
the University Foundations was a gift, that the MOA did not create an implied trust, and
that only the attorney general has standing to enforce the terms of a charitable gift. We
thus affirm the court’s dismissal of the complaint and amended complaint for lack of
standing.
18