Cherie Davidson-Eaton v. Christy Iversen and Susan D. Kirk, as Co-Personal Representatives of the Estate of Gale S. Iversen , 2022 WY 135 ( 2022 )

THE SUPREME COURT, STATE OF WYOMING
2022 WY 135OCTOBER TERM, A.D. 2022
November 2, 2022
CHERIE DAVIDSON-EATON,
Appellant
(Defendant),
v.
S-22-0011
CHRISTY IVERSEN and SUSAN D. KIRK,
as co-personal representatives of the Estate of
Gale S. Iversen, deceased,
Appellees
(Plaintiffs).
Appeal from the District Court of Laramie County
The Honorable Thomas T.C. Campbell, Judge
Representing Appellant:
Bernard Q. Phelan, Cheyenne, WY.
Representing Appellee:
John E. Masters, Cheyenne, WY.
Before FOX, C.J., and KAUTZ, BOOMGAARDEN, GRAY and FENN, 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.
FENN, Justice.
[¶1] Christy Iversen and Susan Kirk, co-personal representatives of the Estate of Gale S.
Iversen (hereinafter “the Estate”), sued Cherie Davidson-Eaton (hereinafter “Ms. Eaton1”),
Mr. Iversen’s caregiver. The Estate filed an action for an accounting and sought to recover
property it alleged Ms. Eaton unlawfully transferred to herself. Ms. Eaton in turn filed a
creditor’s claim against the Estate claiming a right to compensation for services she
rendered to Mr. Iversen during his lifetime. When that claim was rejected, she sued the
Estate in a separate action for breach of express contract, breach of implied contract, and
quantum meruit. The district court consolidated the Estate’s property claims with Ms.
Eaton’s lawsuit.
[¶2] The district court granted partial summary judgment to the Estate on its real property
claims. After a bench trial, it denied Ms. Eaton’s claims and found the Estate was entitled
to lost rents and profits. The district court ordered Ms. Eaton to provide the Estate with an
accounting. Following a hearing on the accounting, the district court ordered Ms. Eaton to
return all of Mr. Iversen’s personal property in her possession and entered judgment against
her for lost rents and equity. We affirm.
ISSUES
[¶3] Ms. Eaton presents several issues on appeal, which we rephrase as follows:
I. Did the district court err when it declined to admit the testimony of Mr.
Iversen’s attorney and evidence of an unsigned will due to the attorney-client
privilege?
II. Was there sufficient evidence to support an express or implied agreement,
which required Mr. Iversen to compensate Ms. Eaton for services she
rendered to him during his lifetime through a legacy in his Estate?
III. Was Ms. Eaton entitled to compensation for services she rendered to Mr.
Iversen during his lifetime through a theory of unjust enrichment?
IV. Did the district court err when it found the quitclaim deeds executed by Ms.
Eaton were an invalid transfer of real property?
V. Did the district court err by not considering the Estate’s failure to mitigate
its damages through a foreclosure redemption when it awarded damages for
the loss of equity?
1
Ms. Eaton testified her formal name is Cherie Davidson-Eaton. In her brief and during trial, she is referred
to as Cherie Eaton. Accordingly, we refer to her as Ms. Eaton throughout this opinion.
1
VI. Was the district court’s decision to enter judgment against Ms. Eaton for rent
supported by sufficient evidence and in accordance with law?
FACTS
[¶4] This case arose from a dispute about who was entitled to Gale Iversen’s property
upon his death, his Estate or Ms. Eaton. Prior to his death, Mr. Iversen possessed and had
ownership interests in three parcels of real estate in Laramie County, Wyoming: (1) a
house, outbuildings, and land on Primrose Trail; (2) a townhouse on Dean Paul Drive; and
(3) an undivided half interest in his parents’ home on Plum Drive. He also had various
personal property in dispute.
Ms. Eaton’s Association with Mr. Iversen
[¶5] In 2011, Ms. Eaton lived next door to Mr. Iversen’s parents on Plum Drive. She
developed a friendship with them and “used to shovel their walks during the winter” and
trimmed their hedges and bushes in the summer. Ms. Eaton received housing assistance
from the Cheyenne Housing Authority. In December 2011, the housing authority required
her to recertify her lease. However, her landlord declined to renew her lease, which expired
in March 2012. In February 2012, she asked Mr. Iversen’s mother to have Mr. Iversen call
her about his townhouse on Dean Paul Drive that was listed for sale. This resulted in Mr.
Iversen agreeing to rent his townhouse to Ms. Eaton. To receive housing assistance, the
housing authority required Ms. Eaton’s rental to meet certain requirements, so Mr. Iversen
and Ms. Eaton repaired items at the townhouse to meet those requirements.
[¶6] Ms. Eaton did not hear from Mr. Iversen for a period of time before moving into the
townhouse—she worried he changed his mind about renting her the townhouse and
possibly sold the home. Ms. Eaton called Mr. Iversen’s mother who stated she would check
on Mr. Iversen. His mother called Ms. Eaton and informed her Mr. Iversen was sick and
asked if she could possibly take him to his doctor’s appointment the next day. Ms. Eaton
agreed, and the next day she went with Mr. Iversen to his appointment. While waiting in
the lobby, a nurse approached her and stated Mr. Iversen had a serious infection in his foot,
so they were going to admit him to the hospital. The nurse told Ms. Eaton she needed to
take Mr. Iversen to the hospital because he refused transportation by ambulance. Ms. Eaton
went with Mr. Iversen to the hospital and made sure he checked in. At the hospital, Mr.
Iversen asked Ms. Eaton to contact his neighbor, and then take his dogs to his parents’
home and purchase food for the dogs. Ms. Eaton did as Mr. Iversen asked and continued
to check in on him and his pets.
[¶7] Ms. Eaton visited Mr. Iversen on a daily basis at the hospital. On one visit, she
informed Mr. Iversen of a conversation she had with his mother about placing him in a
nursing home once he was released. Mr. Iversen feared being placed in a nursing home,
2
so he asked Ms. Eaton to speak to his lawyer, Tom Lee. Mr. Lee represented Mr. Iversen
in a pending personal injury action involving Mr. Iversen being hit by a motor vehicle
while riding his bicycle, which was being negotiated for settlement. Ms. Eaton contacted
Mr. Lee, and he visited Mr. Iversen in the hospital. Their conversation caused Mr. Lee to
believe a guardian ad litem was necessary before any settlement could be accepted in the
personal injury case due to Mr. Iversen’s limited competency.
[¶8] In March of 2012, before executing any lease agreement and while Mr. Iversen was
presumably still in the hospital, Ms. Eaton moved into his townhouse on Dean Paul Drive.
A written lease agreement for the property was executed on May 9, 2012. The terms of
the lease required Ms. Eaton to remit a deposit of $600 and pay Mr. Iversen $708 per
month. Ms. Eaton paid the deposit, but never paid Mr. Iversen rent. Mr. Iversen did
however receive a subsidy through Ms. Eaton’s housing assistance, which he used to pay
the mortgage on Dean Paul Drive. Ms. Eaton testified the terms of her lease never changed
from May 2012 to 2017.
[¶9] During this same period, Mr. Iversen was discharged from the hospital. His
discharge was conditioned upon someone taking him to his follow-up appointments. Ms.
Eaton informed the hospital she was willing to do that. Ms. Eaton provided in-kind services
to Mr. Iversen in lieu of rent, which included taking him to his medical appointments. Over
time, Ms. Eaton became more involved in Mr. Iversen’s care, including going to
appointments with him, monitoring his medications and health, changing his wound
dressings, cooking for him, bathing him, helping him get dressed, and helping him with his
mobility exercises. Mr. Iversen began helping Ms. Eaton financially, which included
paying for her gas, the utilities at the townhouse, medical bills, car repairs, and buying her
personal items. Mr. Iversen and Ms. Eaton’s relationship evolved and grew, and they
interacted with one another on a daily basis. They rode bicycles, shared meals, went to
lunch with his family, ran errands, and stayed at each other’s homes.
Other Legal Proceedings involving Mr. Iversen
[¶10] During this same time period, Mr. Lee requested the appointment of a guardian ad
litem to review a settlement in the pending personal injury matter. The record is unclear,
but at some point, a settlement was proposed in the personal injury action, and the district
court appointed Laura Jackson as Mr. Iversen’s guardian ad litem in a proceeding in 2012.
Ms. Eaton was concerned the settlement was too low, so she advised Mr. Iversen to speak
with another attorney. Ms. Eaton knew Henry Bailey, so she approached Mr. Bailey to
attain a higher settlement for Mr. Iversen. Mr. Bailey agreed to represent Mr. Iversen, and
while the record is unclear, it appears Mr. Iversen terminated his attorney-client
relationship with Mr. Lee. Mr. Bailey entered an appearance in the pending personal injury
action and the 2012 proceeding involving Ms. Jackson. He also filed a separate action
against Mr. Iversen’s insurance company seeking additional recovery through his
underinsured motorist policy. The record is unclear, but it appears Mr. Iversen settled the
3
personal injury action for policy limits. Mr. Bailey was concerned the money from the
settlement would go to pay for the guardian ad litem and diminish Mr. Iversen’s ultimate
recovery, so he asked the district court to terminate Ms. Jackson’s appointment. He
testified Mr. Iversen was lucid enough to give him directions, but in doing so Mr. Iversen
needed Ms. Eaton’s assistance.
[¶11] Mr. Bailey testified that, during his representation, Ms. Eaton always accompanied
Mr. Iversen to meetings. When asked if Ms. Eaton was Mr. Iversen’s caregiver, Mr. Bailey
testified he “believed at the time that she was his girlfriend or had some kind of a
relationship like that with him.” He stated Mr. Iversen depended on Ms. Eaton and needed
her help in preparing his documents for the underinsured motorist proceeding. He testified
Ms. Eaton exerted influence over Mr. Iversen, especially near the end of the representation.
Mr. Bailey also testified he was aware Ms. Eaton held a power of attorney on behalf of Mr.
Iversen but could not verify what power of attorney he had seen.2
[¶12] When the underinsured motorist coverage matter settled, Mr. Bailey was concerned
about delivering the funds directly to Mr. Iversen. He believed the funds would possibly
be spent improperly and in a way that would not benefit Mr. Iversen. He observed Mr.
Iversen’s capacity was diminished beyond that of a normal person, so he arranged for Doug
Bailey, another lawyer with his law firm, to file an involuntary petition to appoint the
Wyoming Guardianship Corporation as Mr. Iversen’s guardian and conservator. Around
this same time, Ms. Eaton called Henry Bailey to discuss her frustrations with his law
partner, Mr. Lance Harmon. In the phone call, Ms. Eaton told Mr. Bailey she was upset
because she had asked Mr. Harmon to draft a will for Mr. Iversen, but he declined to do
so. She said Mr. Harmon was unwilling to draft a will because “he didn’t feel Mr. Iversen
was competent to execute a will.”
[¶13] Around this same timeframe in 2016, Ms. Eaton went to Office Depot and obtained
a power of attorney form titled “Durable Limited Power of Attorney: Effective Only Upon
Disability.” Mr. Iversen executed this power of attorney in front of two witnesses at ANB
Bank on June 30, 2016. Shortly thereafter, in September 2016, Mr. Iversen received a
letter from Mr. Bailey about the involuntary conservatorship/guardianship, which caused
Ms. Eaton to “facilitate [Mr. Iversen] finding a lawyer to represent him in that matter.”
Ms. Eaton testified “[w]e hire[d] Sue Davidson” because of the letter from Mr. Bailey. Ms.
2
During the trial, counsel for the Estate referenced Exhibits 8 and 9 during Mr. Bailey’s testimony, which
were allegedly powers of attorney executed on November 19, 2013, granting Ms. Eaton authority over Mr.
Iversen and his affairs. The transcript indicates the power of attorneys executed in 2013 are entitled: (1)
Durable Limited Power of Attorney Effective Upon Disability and (2) Unlimited Power of Attorney. The
exhibits were never admitted into evidence, so we cannot verify from the record what powers of attorney
Ms. Eaton held in 2013. In her testimony, she stated she had medical power of attorney that was executed
at a hospital in 2013, and another power of attorney from 2013 contained a notary error, so a new power of
attorney was executed in 2016. She testified to obtaining several different power of attorney forms, but
only one power of attorney from June 30, 2016, appears in the record.
4
Davidson testified Mr. Iversen originally sought her services “because of an involuntary
guardianship petition that had been filed by Mr. Bailey, seeking a conservator being
appointed for him, and then . . . later amended to include a guardianship request.” Ms.
Davidson testified Ms. Eaton transported Mr. Iversen to and from her office, and always
accompanied him to his appointments.
[¶14] On October 13, 2016, Ms. Davidson filed a limited entry of appearance in the
involuntary guardianship/conservatorship matter, which indicated she represented Ms.
Eaton, not Mr. Iversen. Several months later, Ms. Davidson filed a competing voluntary
petition to appoint Ms. Eaton as Mr. Iversen’s guardian, and Ms. Eaton and/or Mr. Keith
Price, his certified public accountant, as his conservator on a permanent basis. She further
moved to dismiss the involuntary petition filed by Mr. Bailey. The voluntary petition stated
Mr. Iversen was “an incompetent person.” The district court consolidated the two
guardianship/conservatorship petitions and appointed John Frentheway as the guardian ad
litem for Mr. Iversen. The district court tasked Mr. Frentheway with determining if Mr.
Iversen needed a conservator and whether he had the capacity to manage his personal and
financial affairs. During his investigation, Mr. Frentheway observed Mr. Iversen was
totally dependent on Ms. Eaton.
Mr. Iversen’s Passing and Ms. Eaton’s Execution of Deeds
[¶15] Sometime in spring of 2017, Mr. Iversen was admitted to Cheyenne Regional
Medical Center for unknown health reasons. Shortly thereafter, hospital staff wanted to
find a placement for Mr. Iversen where he could go to receive palliative and geri-
psychiatric care. Ultimately, in May 2017, Mr. Iversen was transferred to a skilled nursing
facility in Fort Collins, Colorado. He was admitted to Poudre Valley hospital on July 6,
2017, for congestive heart failure. Ms. Eaton met with the Poudre Valley hospital staff and
discussed that “she has been [Mr. Iversen’s] primary caregiver for the past 5 years [and]
has been providing 24 [hour] care[] to [Mr. Iversen] in his home for the last 1.5 years.”
The medical records from Poudre Valley referred to Ms. Eaton as Mr. Iversen’s significant
other, and included her statement that Mr. Iversen was her best friend. The records further
indicated that she told the staff “once [Mr. Iversen] passes away she will have ‘nothing, no
income, no job, and no house.’”
[¶16] Sometime in July 2017, a few weeks before Mr. Iversen’s death, Ms. Eaton
contacted Ms. Davidson to prepare deeds to transfer Mr. Iversen’s real property to herself
and Mr. Iversen with rights of survivorship. Ms. Davidson prepared the deeds without
making any independent determination about Mr. Iversen’s competency. Additionally, Mr.
Frentheway had not reported his opinions about Mr. Iversen’s competency and capacity in
the guardianship/conservatorship proceeding that Ms. Davidson had filed on Mr. Iversen’s
behalf. The record is not clear as to whether Ms. Davidson spoke with Mr. Frentheway
before preparing the deeds.
5
[¶17] On July 30, 2017, Mr. Iversen was admitted to Banner Fort Collins Medical Center.
A few days later, on August 3, 2017, his attending physician executed a letter stating: “[Mr.
Iversen] remains in critical condition and is unable to speak for himself. He currently does
not have the awareness or capacity for decision making.” On that same day, Ms. Eaton
executed three quitclaim deeds, transferring Mr. Iversen’s interest in his three real
properties (Plum Drive, Dean Paul Drive, and Primrose Trail) to herself and Mr. Iversen
as “joint tenants with rights of survivorship” utilizing the power of attorney executed on
June 30, 2016. Ms. Eaton executed the deeds just twenty-four hours prior to Mr. Iversen’s
death. Five days later, after Mr. Iversen’s passing, Ms. Eaton recorded the deeds, a copy
of the 2016 power of attorney, and a copy of the letter from Mr. Iversen’s physician. The
deed to the property on Plum Drive, included the wrong legal description, so Ms. Eaton
recorded the same notarized deed, with handwritten changes to the legal description and
the initials CDE written above the changes, on August 11, 2017.
Foreclosure of Dean Paul Drive Property
[¶18] On September 1, 2017, Ms. Eaton called the Cheyenne Housing Authority stating
Mr. Iverson was behind on his mortgage payments and she thought her rental on Dean Paul
Drive might be taken by the bank. Shortly after this call, the housing authority determined
Ms. Eaton was no longer entitled to benefits because she was now the record owner of
Dean Paul Drive. A month later, a law firm representing Mr. Iversen’s mortgage company
sent a letter to Mr. Iversen at the Dean Paul Drive address and to the co-personal
representatives of his Estate. The letter stated Mr. Iversen was in default under the terms
of his mortgage on Dean Paul Drive, and “as a result, the balance will be accelerated and
the entire unpaid amount due in full unless the default is cured within thirty (30) days” or
certain provisions to cure the default were met. The letter indicated Mr. Iversen was “in
breach of the note and mortgage by failing to pay monthly principal and interest payments
. . . for the months of September and October 2017 . . . and by transferring the mortgaged
property without [the bank’s] consent.” Neither the Estate nor Ms. Eaton cured the default.
The bank foreclosed on the property and sent the excess proceeds to the Estate.
Course of Proceedings
[¶19] On September 21, 2017, Mr. Iversen’s Estate sued Ms. Eaton, alleging she
unlawfully transferred Mr. Iversen’s real property to herself. It sought an order quieting
title to the property in the Estate, an order declaring the deeds Ms. Eaton recorded were
void, and an order ejecting her from the property. The Estate also alleged Ms. Eaton was
acting as a fiduciary under the power of attorney, and as such she “must properly account
to [the Estate] for her actions as a fiduciary and deliver all remaining assets in her
possession to the [Estate] for inclusion within the decedent’s estate.” It further requested
the district court to enter judgment requiring her to repay the Estate for any assets she
improperly disposed of or transferred after Mr. Iversen’s death.
6
[¶20] Ms. Eaton filed an answer and counterclaim “admit[ting] that she was given a notice
to vacate and surrender the named properties [but] that she has not vacated and surrendered
the properties as she is now the record sole or concurrent owner of such.” She
counterclaimed asking the district court to quiet title to her. At some point, Mr. Iversen’s
will was admitted to probate naming his daughter, Christy Iversen, and a friend, Susan
Kirk, as co-personal representatives. Ms. Eaton then filed a creditor’s claim against the
Estate based upon the law of an implied contract in the amount of $408,000 for
compensation she claimed she was owed for care and services she provided to Mr. Iverson
during his lifetime. The co-personal representatives denied the claim.
[¶21] After the creditor’s claim was denied, Ms. Eaton filed a separate action against the
Estate alleging breach of an express contract, breach of an implied contract, and a claim of
quantum meruit. The Estate filed an answer and counterclaim restating its claims from its
complaint, and claiming any alleged agreement was “the product of an agreement with an
incompetent person or the product of undue influence or duress or the invalid exercise of a
defective power of attorney.” The Estate further alleged any relief to Ms. Eaton was barred
by her unclean hands, and it should be awarded damages for lost property and benefits
caused by her conduct. Upon the parties’ joint motion, the district court consolidated the
Estate’s claims against Ms. Eaton with Ms. Eaton’s claims against the Estate.
[¶22] The Estate moved for partial summary judgment on its property claims. In response,
Ms. Eaton untimely filed an affidavit asserting material issues of fact. Although it was
filed outside the time allotted, the district court considered the affidavit and found it did
not raise any factual dispute. Ms. Eaton filed no other response to the motion. The district
court granted the Estate’s motion and ruled the property deeds Ms. Eaton recorded were
invalid and void, and it ordered that title be quieted in Mr. Iversen, his Estate, and his heirs
and beneficiaries. The district court further ruled the Estate was entitled to judgment on
its ejectment claim. It ordered Ms. Eaton to vacate the property and “remove therefrom
only her personal property leaving all other property of the decedent, Gale S. Iversen, in as
good shape and condition as when she took possession.” Ms. Eaton appealed the order—
her first appeal.
[¶23] During the pendency of her first appeal, Wyoming Supreme Court Docket No. S-
19-0072, the Estate requested the district court order Ms. Eaton to vacate the premises in
accordance with its ruling on partial summary judgment or, in the alternative, to post a
supersedeas bond in an amount that “will secure the amount recovered for the use and
detention of the property, the costs of the action, costs on appeal, interest, and damages for
delay.” The Estate contended Ms. Eaton had been in possession of the Estate’s property
since Mr. Iversen’s death and continued to refuse to return the property. The district court
held a hearing and found the Estate “has an interest in retaking possession of the real
property and also in gaining access to, or possession of, the personal property located at
the real property over which [Ms.] Eaton has made no claim.” The district court ordered
if Ms. Eaton was going to remain in the property, within 14 days of May 22, 2019, she had
7
to “grant [the Estate] access to the property at . . . Primrose Trail for purposes of
inventorying, marshalling, possessing, and identifying all personal property at that
location.” It further ordered Ms. Eaton to “remit in cash or certified funds . . . the amount
of One Thousand Dollars ($1,000)” to the Estate on a monthly basis. The district court
held “[s]uch payments are not rent for the property but shall be a form of bond pending
appeal by [Ms. Eaton] and shall be subject to rules and laws concerning bonds posted on
appeal.” The district court ordered if Ms. Eaton violated either of the two conditions, her
continued occupancy would be immediately terminated, and she would be subject to
eviction. We dismissed the first appeal because the order was not a final appealable order.3
[¶24] The district court held a bench trial on August 19 through August 21, 2019, on Ms.
Eaton’s claims and the Estate’s remaining claim for an accounting. At the trial, Ms. Eaton
requested to admit 11,000 pages of medical records, but in lieu of admitting the records the
Estate and Ms. Eaton stipulated to the following:
1. [Mr. Iversen] suffered from extensive medical conditions
during the time that [Ms. Eaton] was his caregiver,
including diabetes mellitus, kidney failure, congestive heart
failure, traumatic brain injury, infected toe ulcer,
amputation of his toes, vascular disease, hypertension,
stroke, and other serious conditions.
2. Ms. [Cherie] Eaton was [Mr. Iversen]’s caregiver
during . . . the last five years of his life
3. [Mr. Iversen] opposed placement in the nursing home and
rejected that concept on several occasions.
The district court issued an “Order and Opinion” on December 19, 2019, ruling against
Ms. Eaton on all her claims, and with respect to the Estate’s remaining claim found:
[I]t is not appropriate to impose a complete fiduciary
responsibility on [Ms.] Eaton and make her account. However,
as to the transfer of titles to vehicles or real property, or of
moneys in and out of [Mr. Iversen’s] bank and investment
accounts, she was a fiduciary as she acted only through the
limited grant of authority of the power of attorney and must
account in response to a specific demand by the Estate.
[The] Estate is entitled also to loss of rents and profits on real
3
Davidson-Eaton v. Iversen, S-19-0072 (Wyo. April 30, 2019) (order dismissing appeal).
8
estate properties unlawfully transferred, in addition to the
amounts revealed by the accounting ordered.
The district court ordered Ms. Eaton to file her accounting within 30 days.
[¶25] Ms. Eaton filed a motion to alter or amend the order under Rule 59 of the Wyoming
Rules of Civil Procedure, and on January 21, 2020, she filed her second appeal to this
Court. During the pendency of the second appeal, the Estate renewed its motion to enforce
the judgment, and Ms. Eaton asked the district court to stay enforcement pending the
appeal. The district court held a hearing and ordered Ms. Eaton to “surrender possession
and vacate the premises . . . on or before 5:00 p.m. on March 8, 2020.” It further denied
Ms. Eaton’s request for a stay and ordered her to provide the accounting as previously
ordered. Ms. Eaton vacated the property on March 5, 2020, and when she did so, she
removed several items of personal property belonging to the Estate. The Estate filed a
motion for an order to show cause asking the district court to hold Ms. Eaton in contempt
and require her to immediately account for and return the missing property. Ms. Eaton
filed her accounting on May 18, 2020, approximately five months after the district court’s
deadline.
[¶26] The district court held an evidentiary hearing on the motion for contempt and the
accounting on June 23, 2020, and when the time scheduled for the hearing proved
insufficient, it continued the hearing to August 4, 2020. The district court entered its Order
on Accounting and accepted Ms. Eaton’s accounting in part but found it was untimely and
self-serving. It ordered Ms. Eaton to:
a. Return all title and possession of all Mr. Iversen’s vehicles,
or trailers transferred by her or stored at any location.
b. Return all of Mr. Iversen’s weapons in her control and those
in the hands of her mother Amy Davidson.
c. Return all of Mr. Iversen’s tools, furniture and items of
personal property in her possession which she has
acknowledged [were] his and stored by her.
d. Pay rents for her occupation of the Primrose Trail property
from August 2017 through March 2020 in the amount of
$31,000.
e. Pay the [loss of equity] previously ordered for the Dean
Paul property in the amount of $23,763.
The district court further ordered the accounting to be reduced to a judgment. After Ms.
9
Eaton returned the property, the Estate was to prepare a notice of unreturned items and
their value, along with a proposed judgment reflecting the amounts of those items.
[¶27] Ms. Eaton filed a third appeal regarding the Order on Accounting, while her second
appeal was still pending. We dismissed the third appeal on March 9, 2021, finding the
Order on Accounting was not a final appealable order.4 Following briefing from the parties
and oral argument, we dismissed the second appeal for a lack of jurisdiction finding both
the order following trial and the subsequent order entitled “Order on Accounting” indicate
“a final judgment on damages will not be entered until the accounting is complete.”
Davidson-Eaton v. Iversen, 2021 WY 49, ¶ 13, 484 P.3d 23, 25–26 (Wyo. 2021).
[¶28] Ms. Eaton filed her report showing compliance with the district court’s Order on
Accounting, and the district court entered its final judgment on October 28, 2021. It found
Ms. Eaton “did not pay the $1000 monthly amount previously ordered by the [c]ourt, nor
did she timely vacate the property as ordered.” The district court held the Estate was
“entitled to judgment for rents and profits while deprived of the use of the real property as
follows:”
a. Date of death, August 4, 2017[,] until surrender of Primrose
property in March 2020, (5 months in 2017, 12 months in
2018, 12 months in 2019, 2 months in 2020, or a total of 31
months) at $1,000 per month: $31,000, less one month[]
paid by [Ms. Eaton], for a net amount of $30,000.00.
b. Loss of Dean Paul property to foreclosure while in
possession of [Ms. Eaton], $23,763.
The district court further ordered Ms. Eaton to pay a transportation fee for a trailer she
removed from Mr. Iversen’s property and costs incurred by the Estate in filing the quiet
title action. It entered judgment against Ms. Eaton. Ms. Eaton timely filed her fourth
appeal.
DISCUSSION
I. Attorney-Client Privilege and the Unsigned Will
[¶29] To corroborate Ms. Eaton’s claim that Mr. Iversen agreed to pay for her caregiving
services out of a legacy from his Estate, she sought to introduce the testimony of Ms.
Davidson, and an unsigned will Ms. Davidson drafted for Mr. Iversen. The district court
declined to admit the unsigned will, finding it was irrelevant to the issue of whether an
agreement had been formed because it was never executed. The Estate asserted the
4
Davidson-Eaton v. Iversen, S-21-0041 (Wyo. March 9, 2021) (order dismissing appeal).
10
attorney-client privilege on Mr. Iversen’s conversations with Ms. Davidson, and Ms. Eaton
argued the privilege was waived. The district court held the conversations between Ms.
Davidson and Mr. Iversen remained privileged even though Ms. Eaton was present because
the conversations were between two people who might both be clients of Ms. Davidson
and owed a duty of confidentiality to each other. It held Ms. Davidson could not testify on
matters involving drafting estate documents or conversations with Mr. Iversen because Mr.
Iversen and the Estate had not waived the privilege.
[¶30] On appeal, Ms. Eaton claims Ms. Davidson’s testimony was not privileged or
confidential because the conversations occurred with both Mr. Iversen and Ms. Eaton
present. She claims Mr. Iversen waived the attorney-client privilege when he allowed the
conversations to occur in front of Ms. Eaton—a third party who was not a client. She
further claims the attorney-client privilege does not apply to the unsigned will because it
is a non-confidential document.
[¶31] We review the district court’s decision to exclude the unexecuted will and
conversations with Mr. Iversen’s attorney for an abuse of discretion. In re L-MHB, 2020
WY 1, ¶¶ 12–13, 454 P.3d 935, 938 (Wyo. 2020) (reviewing a claim of waiver and the
physician-patient privilege for an abuse of discretion); Arnold v. Mountain W. Farm
Bureau Mut. Ins. Co., 707 P.2d 161, 165 (Wyo. 1985) (reviewing the district court’s ruling
on the attorney-client privilege for an abuse of discretion); see also WyoLaw, LLC v. Off.
of Att’y Gen., Consumer Prot. Unit, 2021 WY 61, ¶ 49, 486 P.3d 964, 977 (Wyo. 2021)
(“We review a district court’s discovery rulings, including its ruling on a claim of privilege,
for an abuse of discretion.”). We will not disturb the district court’s decision if there is a
legitimate basis for the ruling. In re L-MHB, ¶ 12, 454 P.3d at 938. “Determining whether
the trial court abused its discretion involves [considering] whether the court could
reasonably conclude as it did, and whether it acted in an arbitrary and capricious manner.”
Jontra Holdings Pty Ltd v. Gas Sensing Tech. Corp., 2021 WY 17, ¶ 58, 479 P.3d 1222,
1239 (Wyo. 2021). Ms. Eaton “bears the burden of showing an abuse of discretion.” See
In re L-MHB, ¶ 12, 454 P.3d at 938.
[¶32] An attorney is statutorily prevented from testifying about “a communication made
to him by his client or . . . his advice to his client.” Wyo. Stat. Ann. § 1-12-101(a)(i)
(LexisNexis 2019). “The decision whether to waive the attorney-client privilege” or to
expressly consent to the attorney testifying “belongs solely to the client.” Dockter v.
Lozano, 2020 WY 119, ¶ 29, 472 P.3d 362, 370 (Wyo. 2020) (quoting Teniente v. State,
2007 WY 165, ¶ 47, 169 P.3d 512, 528 (Wyo. 2007); Wyo. Stat. Ann. § 1-12-101(a)(i).
The attorney-client privilege, which prevents an attorney from testifying, survives the death
of the client, and the personal representative can assert the privilege on behalf of the
decedent. W.R.E. 501 (LexisNexis 2021) (“[T]he privilege of a . . . person . . . shall be
governed by the principles of the common law as they may be interpreted by the courts of
the State of Wyoming in the light of reason and experience.”); Swidler & Berlin v. United
States, 524 U.S. 399, 405–11, 118 S. Ct. 2081, 2085–88, 141 L.Ed.2d 379 (1998) (“It has
11
been generally, if not universally, accepted, for well over a century, that the attorney-client
privilege survives the death of the client.”); 1 McCormick on Evidence § 94 (8th ed. July
2022); Eunice L. Ross and Thomas J. Reed, Will Contests § 15:15 (2d ed. June 2022).
[¶33] “[A]ttorney-client communications in the presence of third persons are [generally]
not privileged as confidential [and will] defeat the privilege regarding a testator’s
communications to the attorney during will drafting.” 98 C.J.S. Witnesses § 364 (Oct. 2022
update); 1 McCormick on Evidence § 91 (8th ed. July 2022); Thomas v. Harrison, 634 P.2d
328, 337 (Wyo. 1981) (“Generally, it is assumed that communications between a client and
a third party or one who is not a lawyer are not protected.”). To determine whether Ms.
Eaton’s presence defeated the attorney-client privilege, we must determine whether Ms.
Eaton was Mr. Iversen’s agent. Restatement (Third) of the Law Governing Lawyers § 70
(Am. Law Inst. 2000); 1 McCormick on Evidence § 91 (8th ed. July 2022); John M.
Burman, The Attorney-Client Privilege Part II, Waiver and Exceptions, Wyoming Lawyer
at 32, 33–34 (Feb. 2006). If Ms. Eaton is an agent of Mr. Iversen, the communication is
deemed confidential, and her presence did not waive the attorney-client privilege.
Restatement (Third) of the Law Governing Lawyers § 70(e) (Am. Law Inst. 2000); 1
McCormick On Evidence § 91 (8th ed. July 2022); see also 98 C.J.S. Witnesses § 348 (Oct.
2022 update) (“Accepted third parties, with whom the privilege is preserved, are those who
are necessary agents of the . . . client, persons to whom disclosure is made in furtherance
of the rendition of professional legal services to the client, or those reasonably necessary
for the transmission of the communication.”); Burman, supra, at 32, 33–34 (discussing the
attorney-client privilege is not waived in the presence of a third party if that person is
needed to make the conference possible and that when two or more persons employ an
attorney as their common attorney the communications with the attorney are regarded as
confidential).
[¶34] In McCaffrey v. Estate of Brennan, the Missouri Court of Appeals considered
whether the presence of the creditor during conversations between a decedent and his
attorney waived the attorney-client privilege and permitted a decedent’s attorney to testify
about an unexecuted will in a claim against the estate. 533 S.W.2d 264, 265–68 (Mo. App.
1976). Plaintiff brought an action against decedent’s estate for services—banking, bill-
paying, running errands, chauffeuring, and visiting the decedent in a hospital and nursing
home—rendered to the deceased during the deceased’s lifetime. Id. at 265. Plaintiff
rendered these services continuously for over eight years, but the decedent never
compensated plaintiff. Id. Instead, the decedent promised he would make an adequate
provision for the plaintiff in his will. Id. In preparation of a will, the decedent’s attorney
met with decedent only twice, and the plaintiff was present on both of those occasions. Id.The decedent’s attorney prepared a power of attorney on behalf of the decedent, which
granted plaintiff a blanket power to act on decedent’s behalf. Id. His attorney also prepared
a will with a bequest to plaintiff. Id. The decedent never executed the draft will. Id.[¶35] Following decedent’s death, plaintiff filed a quantum meruit claim against the
12
estate. Id. During the trial, the plaintiff called decedent’s attorney as a witness, and over
the objections of the estate, the court permitted the attorney to testify that he prepared a
will for the decedent with a bequest of money to plaintiff, though it was never executed.
Id. The court never admitted the unexecuted will. Id. at 265–66. On appeal, the estate
contended the trial court erred because the attorney-client privilege barred the attorney’s
testimony regarding the preparation of an unexecuted will. Id. at 266–68. The plaintiff
asserted the attorney-client privilege was destroyed by his presence during the
communication. Id. at 267. The court found the plaintiff’s dealings with decedent’s
attorney were pursuant to her agency relationship with the deceased, and therefore the
testimony was barred by the attorney-client privilege. Id. at 267–68. It reasoned:
As a general rule, the privilege is destroyed by the presence
and hearing of third persons, on the ground that the
communication was never intended to be confidential.
However, preparation of a will is typically a matter which a
client would expect to be confidential and therefore privileged.
And the rule as to the absence of privilege where a third person
is present does not apply when the third person is the
confidential agent of either the client or the attorney. Similarly,
when a communication meets all the legal requirements
entitling it to be privileged when made directly between an
attorney and his client, it is equally privileged when the
communication is made through the client’s agent or
employee. In other words, it is the function of the third
party—his relationship to the client—which determines
whether the privilege encompasses communications made
by, or in the presence of that third party. During the entire
claim period, decedent held plaintiff in a position of trust and
authority such that her agency would be implied. Beginning
April 19, 1968, her agency was validated by a blanket power
of attorney running from decedent to her. All of plaintiff’s
dealings with Mr. Flynn were pursuant to her agency
relationship to the deceased. Therefore, these communications
were encompassed within the attorney-client privilege. The
privilege was neither destroyed by her presence nor waived by
failure to object. Mr. Flynn’s testimony should have been
barred by the attorney-client privilege.
Id. at 267–68 (internal quotations and citations omitted) (emphasis added).
[¶36] Ms. Eaton testified that Mr. Iversen executed a medical power of attorney at the
hospital in fall of 2013 granting her the power to make healthcare decisions on his behalf.
She further testified “[i]t was Mr. Iversen’s wish that [she] have . . . power [of attorney
13
over him] from . . . 2013.” She testified there was a second power of attorney executed on
June 30, 2016, several months before Ms. Eaton and Mr. Iversen met with Ms. Davidson.
Ms. Eaton was also a signatory on Mr. Iversen’s checking account.
[¶37] Ms. Davidson began her representation of Mr. Iversen knowing another attorney
filed for an involuntary guardianship and conservatorship due to his concerns about Mr.
Iversen’s competency. She testified she “was aware that there was one or more powers of
attorney.” She entered a limited entry of appearance on behalf of Ms. Eaton to obtain court
records in the involuntary guardianship/conservatorship proceeding. Ms. Eaton testified
“we hire[d] Sue Davidson”—meaning she and Mr. Iversen hired Ms. Davidson. Ms.
Davidson prepared, executed, and notarized a voluntary petition for appointment of
guardian and conservator on behalf of Mr. Iversen stating he was “an incompetent person.”
The voluntary petition requested Ms. Eaton be appointed as Mr. Iversen’s guardian and
conservator. Ms. Eaton accepted service and consented to being appointed as the guardian
and sole or joint conservator of Mr. Iversen—Ms. Davidson notarized the acceptance and
consent.
[¶38] Ms. Davidson was aware Mr. Iversen suffered from a traumatic brain injury. By the
time Ms. Davidson was hired, two of Mr. Iversen’s previous attorneys had filed petitions
to appoint a guardian or guardian ad litem for him due to their concerns about his
competency. Another attorney declined to draft a will on Mr. Iversen’s behalf because “he
didn’t feel Mr. Iversen was competent to execute a will.” Mr. Iversen’s medical records
from 2013 stated “Not sure if he can comply with instructions when his girlfriend is not
with him due to his memory difficulty.” Henry Bailey, testified Mr. Iversen “had trouble
remembering things,” and he opined Mr. Iversen’s “capacity was diminished beyond that
of a normal person.” Mr. Bailey further testified Mr. Iversen needed “the help of Cherie
Eaton in visiting with [him and] in preparing his documents for the underinsured motorist
proceeding.” Further, in 2015, a criminal case against Mr. Iversen was dismissed because
he was unfit to stand trial due to his inability to aid in his defense.
[¶39] A letter from his physician at the Cheyenne Veteran’s Administration, which was
received and read by Ms. Eaton before meeting with Ms. Davidson, set forth the following
“to be considered for [Mr. Iversen’s] future medical care and/or legal issues:”
Mr. Iversen has significant dementia, and has been determined
as officially “incompetent” of giving consent in 2012 by the
VA-Mental Health Team. He is very confused most of the time
and [is] absolutely unable to remember any of his medications,
dosages, timing or food intake. He is probably unable to
perform most of the Activities of Daily Living without frequent
reminding and guidance. He is unable to drive.
* * *
14
Finally, Mr. Iversen has been cared for by [Ms. Eaton] for the
last several years. She is currently his Power of Attorney. . . .
The progress notes from Mr. Iversen’s health records show the nurses frequently spoke
with Ms. Eaton about his care.
[¶40] We find this case is similar to McCaffrey and hold the district court did not abuse
its discretion when it excluded Ms. Davidson’s testimony and refused to admit the unsigned
will. Based on the evidence discussed above, we conclude Ms. Eaton was acting as Mr.
Iversen’s agent when she attended the meetings with Ms. Davidson where the unexecuted
will was discussed. Therefore, we find her presence during these discussions did not
destroy any privilege.
II. Ms. Eaton’s Claims for Breach of an Express or Implied Contract
[¶41] Ms. Eaton next contends the district court erred when it found there was no express
or implied-in-fact agreement between her and Mr. Iversen. She argues that even without
considering the unsigned will, “there is ample evidence of an express or implied agreement
. . . that the decedent would [compensate her for] services [rendered] through a legacy in
his will.” The Estate argues the evidence in the record is consistent with the district court’s
finding that there was no agreement, and it contends even if there was an oral agreement,
it is not enforceable because the terms were a moving target and did not form a definitive
contract.
[¶42] The question of “[w]hether an oral contract exists is a question of fact,” “and the
district court’s determination on that question will not be reversed unless clearly
erroneous.” Meima v. Broemmel, 2005 WY 87, ¶ 58, 117 P.3d 429, 448 (Wyo. 2005)
(quoting Fowler v. Fowler, 933 P.2d 502, 504 (Wyo. 1997)); Gould v. Ochsner, 2015 WY
101, ¶ 53, 354 P.3d 965, 979 (Wyo. 2015) (quoting Simek v. Tate, 2010 WY 65, ¶ 19, 231
P.3d 891, 898 (Wyo. 2010)). We do not reweigh the evidence, instead “we examine the
evidence in a light most favorable to the prevailing party, without considering evidence of
the other party which conflicts.” Belden v. Thorkildsen, 2008 WY 145, ¶ 22, 197 P.3d 148,
155 (Wyo. 2008) (quoting 71 Const. v. Wesco Elec., Inc., 924 P.2d 991, 993 (Wyo. 1996)).
Ms. Eaton bears the burden of establishing the existence of the oral contract. Id.[¶43] The district court found Ms. Eaton’s own testimony belied any assertion an
agreement was formed between the parties. It found her testimony indicated the dealings
between her and Mr. Iversen were “their evolving personal relationship that result[ed] in
the assistance they rendered one another, financial or otherwise.” Viewing the evidence in
the light most favorable to the Estate, we find the district court’s decision is supported by
the record.
15
[¶44] For an oral contract to exist, its essential terms must be defined with certainty. Fuger
v. Wagoner, 2020 WY 154, ¶ 11, 478 P.3d 176, 181–82 (Wyo. 2020); Fowler, 933 P.2d at
504. Courts do not have the power to supply the terms of an agreement, so an oral
agreement is unenforceable unless the contract terms are “so certain that the court can
require the specific thing agreed upon to be done.” Fowler, 933 P.2d at 504; Rialto Theatre,
Inc. v. Commonwealth Theatres, Inc., 714 P.2d 328, 334–35 (Wyo. 1986) (finding a lease
agreement without definite terms is an agreement to agree in the future which the court
could not enforce because it would require the court to supply the terms of the agreement).
[¶45] Ms. Eaton testified she negotiated an oral agreement between her and Mr. Iversen
in April 2012. She stated the agreement required her to execute a lease to rent Mr. Iversen’s
townhouse, but Mr. Iversen orally agreed she could provide “in kind” services in lieu of
rent. She testified that she executed a written lease to pay $708 per month, but she never
paid any rent in monetary value to Mr. Iversen. Ms. Eaton stated in 2015, she and Mr.
Iversen renegotiated their original agreement, and it was her understanding that she would
receive his entire estate if she continued to provide care for him and kept him out of a
nursing home. However, according to Ms. Eaton’s testimony, Mr. Iversen’s fear of being
placed in a nursing home in 2013 prompted him to agree to pay her for caregiving services
“to keep that from happening.” This undermines her contention that his fear of being
placed in a nursing home led to a renegotiated agreement in 2015.
[¶46] Ms. Eaton did begin to help Mr. Iversen with his care beginning in Spring of 2012.
Around this same time, Mr. Iversen began helping Ms. Eaton financially, which included
paying for her personal items, medical appointments, car repair, utilities, gas, and adding
her as a beneficiary to his certificate of deposit. Ms. Eaton could not recall whether the
type of care she provided for Mr. Iversen changed before or after their agreement was
allegedly modified in 2015 to include giving her his entire estate. Her own testimony
shows there was never any agreement for her to receive Mr. Iversen’s entire estate. She
admitted to stating to Mr. Iversen’s medical providers that once he passes away, “she will
have ‘nothing, no income, no job and no house’ as they live off his retirement.” Ms. Eaton
further acknowledged it was her obligation under the alleged oral agreement to keep Mr.
Iversen out of a nursing home, but she did put him in a nursing home in 2017.
[¶47] The only evidence that an oral contract existed came from Ms. Eaton. She did not
present any evidence that proved the essential terms of the contract. Her testimony instead
showed this oral agreement was constantly changing and never had any specific terms other
than for her to keep Mr. Iversen out of the nursing home. In the absence of written or
definite contractual terms, the evidence establishes Ms. Eaton only had an expectation of
inheriting Mr. Iversen’s entire estate. The record supports there was no oral agreement,
but instead an evolving personal and gratuitous relationship between Mr. Iversen and Ms.
Eaton. See generally Fowler, 933 P.2d at 504 (reversing the trial court’s decision an oral
contract existed between a father and son because the terms of the alleged oral contract
were not sufficiently definite). The district court’s decision is not contrary to the weight
16
of the evidence.
III. Ms. Eaton’s Claim for Unjust Enrichment
[¶48] Alternatively, in the absence of an enforceable contract, Ms. Eaton claims she is
entitled to the reasonable value of the services she rendered under the doctrine of unjust
enrichment. “Unjust enrichment (or quantum meruit) is an equitable remedy which implies
a contract so that one party may recover damages from another.” Elec. Wholesale Supply
Co. v. Fraser, 2015 WY 105, ¶ 27, 356 P.3d 254, 261 (Wyo. 2015) (quoting Bowles v.
Sunrise Home Ctr., Inc., 847 P.2d 1002, 1004 (Wyo.1993)).
Unjust enrichment is the unjust retention of a benefit to the loss
of another. It exists as a basis for recovery for goods or
services rendered under circumstances where it would be
inequitable if no compensation was paid in return. In
Wyoming, the elements of unjust enrichment are: 1) valuable
services were rendered; 2) to the party to be charged; 3) which
services were accepted, used and enjoyed by the charged party;
and 4) under circumstances that reasonably notified the party
being charged that the other party would expect payment for
the services.
Symons v. Heaton, 2014 WY 4, ¶ 15, 316 P.3d 1171, 1176 (Wyo. 2014) (quoting Redland
v. Redland, 2012 WY 148, ¶ 137, 288 P.3d 1173, 1203 (Wyo. 2012)) (internal citations
omitted).
[¶49] The district court held the evidence did not support an equitable remedy. It
acknowledged Ms. Eaton provided valuable services to Mr. Iversen, and Mr. Iversen
accepted those services and benefitted from them. However, the district court held “there
is no rational view of [the] evidence upon which to conclude [Mr. Iversen] would have
known or even guessed” Ms. Eaton expected payment in the form of his entire estate. The
district court found Ms. Eaton “received incalculable benefit[s] in the form of food,
housing, transportation, and did so during and due to her personal relationship with [Mr.
Iversen].” Further, the district court found equitable remedies were not available because
of Ms. Eaton’s own wrongful conduct. It held: “it is uncontroverted that she dealt with
[Mr. Iversen’s] assets after his death without authority in cashing checks immediately, and
in the unlawful transfer of property.”
[¶50] When acting in equity, the district court is limited to only fashioning relief within
the context of a recognized equitable theory. Jacoby v. Jacoby, 2004 WY 140, ¶ 10, 100
P.3d 852, 855 (Wyo. 2004). “A trial court’s conclusions on issues of equity are factual
determinations,” which will not be set aside unless they are clearly erroneous. Roussalis v.
Apollo Elec. Co., 979 P.2d 493, 496 (Wyo. 1999); Redland, 2012 WY 148, ¶ 48, 288 P.3d
17at 1185. “Unjust enrichment is an equitable remedy that is appropriate only when the party
to be charged has received a benefit that in good conscience the party ought not retain
without compensation to the party providing the benefit.” Symons, 2014 WY 4, ¶ 16, 316
P.3d at 1176 (quoting Redland, 2012 WY 148, ¶ 146, 288 P.3d at 1205–06). Such “claims
visualize a situation where a party receives something of value without payment, which
was accepted and used so as to unjustly enrich the recipient of the goods or services.” Metz
Beverage Co. v. Wyo. Beverages, Inc., 2002 WY 21, ¶ 36, 39 P.3d 1051, 1061 (Wyo. 2002).
The district court is given considerable discretion in ruling on an unjust enrichment claim,
and we will not disturb its ruling unless “it acts in a manner that exceeds the bounds of
reason under the circumstances.” Elec. Wholesale Supply Co., 2015 WY 105, ¶ 29, 356
P.3d at 261–62; Redland, 2012 WY 148, ¶ 138, 288 P.3d at 1203; Roussalis, 979 P.2d at
496.
[¶51] To succeed on her unjust enrichment claim, Ms. Eaton was required to show that
the Estate would be unjustly enriched if it did not pay her for the services she rendered to
Mr. Iversen. Elec. Wholesale Supply Co., 2015 WY 105, ¶ 34, 356 P.3d at 263; Jacoby,
2004 WY 140, ¶ 12, 100 P.3d at 856. Wyoming law presumes that services rendered by
one family member to another family member are gratuitous and not compensable. Clark
v. Gale, 966 P.2d 431, 439 (Wyo. 1998). If two people live together in the same household,
rendering services to one another, then in the absence of an express contract, the law
presumes any benefit was payment in full and that neither individual intended to charge or
accept payment for the services rendered. Id.; Est. of Erickson, 722 S.W.2d 330, 334 (Mo.
Ct. App. 1986); 2 Williston on Contracts § 6:52 (4th ed., May 2022 update); 2 Jones on
Evidence § 8:17 (7th ed., Jan. 2022 update); Cf. Shaw v. Smith, 964 P.2d 428, 438 (Wyo.
1998) (cohabiting parties can seek recovery for services rendered through theories of an
implied contract and quantum meruit).
[¶52] Ms. Eaton’s relationship with Mr. Iversen began through her relationship with his
parents and then evolved into a landlord-tenant relationship when she sought to rent his
townhouse. Ms. Eaton’s relationship with Mr. Iversen evolved into a more personal
relationship after his parents asked her to take Mr. Iversen to a medical appointment. Ms.
Eaton continued to spend more time with Mr. Iversen, with both exchanging gratuitous
services to one another. Ms. Eaton helped Mr. Iversen with his care, and Mr. Iversen
helped Ms. Eaton financially. Mr. Iversen’s medical records as early as 2013 refer to Ms.
Eaton as Mr. Iversen’s significant other, girlfriend, and fiancée/caregiver and state Mr.
Iversen’s living situation as “liv[ing] with fiancée in a private home in Cheyenne, WY.”
When testifying about her living situation in 2015, Ms. Eaton indicated she lived “out on
the prairie,” with Mr. Iversen, and was sometimes at Mr. Iversen’s home 24/7.
[¶53] From this evidence, the district court acted within its discretion when it found Ms.
Eaton received an incalculable benefit due to her personal relationship with Mr. Iversen.
We agree with the district court that Mr. Iversen’s relationship with Ms. Eaton is one where
the law presumes the services were rendered without the expectation of compensation. The
18
evidence, when viewed in the light most favorable to the Estate, shows Mr. Iversen and
Ms. Eaton maintained a family relationship, and both rendered services to one another.
Ms. Eaton received compensation for her services through a place to live and financial
assistance. We cannot say that Mr. Iversen was unjustly enriched, or that Ms. Eaton did
not receive payment for her services during Mr. Iversen’s lifetime.
[¶54] We further find the district court did not abuse its discretion when it held equitable
remedies were not available to Ms. Eaton due to her own wrongful conduct. “One of the
basic tenets of equity is that equitable remedies depend upon a showing by the claimant of
clean hands.” Mantle v. N. Star Energy & Constr. LLC, 2019 WY 29, ¶ 118, 437 P.3d 758,
797 (Wyo. 2019) (quoting McNeill Family Tr. v. Centura Bank, 2003 WY 2, ¶ 16, 60 P.3d
1277, 1284 (Wyo. 2003)). The doctrine of unclean hands is premised on the maxim that:
“He who comes into equity must come with clean hands.” Roussalis, 979 P.2d at 496.
Under the doctrine, “a litigant may be denied relief by a court of equity on the ground that
his or her conduct has been inequitable, unfair and dishonest, or fraudulent and deceitful
as to the controversy in issue.” 30A C.J.S. Equity § 111 (Oct. 2022 update). There is no
fixed standard for conduct that amounts to unclean hands, “other than that it is conduct
which the court regards as inequitable.” Mantle, ¶ 118, 437 P.3d at 797 (citing Henry L.
McClintock, Handbook of the Principles of Equity § 26, at 62 (2d ed. 1948)).
[¶55] Ms. Eaton was a signatory on Mr. Iversen’s checking account and held a power of
attorney that automatically revoked upon Mr. Iversen’s death. Four days after Mr.
Iversen’s death, she deposited checks made out to Mr. Iversen but withdrew that amount
in cash from his account. She transferred ownership of Mr. Iversen’s properties to herself
twenty-four hours prior to his death while he was incapacitated, after having admitted to
hospital staff she would have no income or home upon his death. By making this transfer,
Ms. Eaton breached the terms of Mr. Iversen’s mortgage. Ms. Eaton should not profit from
her own conduct, especially when her conduct was not in the best interest of the Estate.
We affirm the district court’s decision finding that Ms. Eaton is not entitled to an equitable
remedy.
IV. Quitclaim Deeds Transferring Property Pursuant to Power of Attorney
[¶56] On partial summary judgment, the district court granted the Estate’s claims for quiet
title and ejectment. It found Ms. Eaton’s actions were done in an “effort to fulfill an oral
will or alternatively . . . an inter-vivos transfer in satisfaction of an alleged contract to pay
for her caretaking services.” It found neither theory is valid under Wyoming law, and her
actions were self-serving and not taken in the best interests of Mr. Iversen. On appeal, Ms.
Eaton argues her belief she could execute the deeds under the power of attorney somehow
creates a question of material fact, which precluded summary judgment. She further argues
that the district court never determined whether she was authorized to execute the deeds
through the grant of authority. The district court did however make such a finding when it
found Ms. Eaton acted beyond the scope of the power of attorney. We agree with the
19
district court.
[¶57] The Estate is entitled to summary judgment if “there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.” Tram Tower
Townhouse Ass’n v. Weiner, 2022 WY 58, ¶ 43, 509 P.3d 357, 366–67 (Wyo. 2022)
(quoting Gowdy v. Cook, 2020 WY 3, ¶ 21, 455 P.3d 1201, 1206 (Wyo. 2020)). We review
a district court’s grant of summary judgment de novo, affording no deference to the district
court’s ruling. Id.; Hanft v. City of Laramie, 2021 WY 52, ¶ 32, 485 P.3d 369, 381 (Wyo.
2021). We may affirm a summary judgment ruling on any basis found in the record. Hanft,
¶ 34, 485 P.3d at 381 (Wyo. 2021). The record establishes, as a matter of law, Ms. Eaton
had no authority to convey or create an interest for herself in Mr. Iversen’s real property.
We affirm the district court’s decision on that basis.
[¶58] We construe powers of attorney strictly, and an attorney-in-fact is only authorized
to act within the limits prescribed under the power of attorney and by law. Miller v. Life
Care Centers of Am., Inc., 2020 WY 155, ¶ 19, 478 P.3d 164, 170 (Wyo. 2020). An agent
that has accepted appointment under a power of attorney is statutorily mandated to act “in
good faith” and “only within the scope of authority granted in the power of attorney.” Wyo.
Stat. Ann. § 3-9-114(a)(iii) (LexisNexis 2019); see also Wyo. Stat. Ann. § 3-9-103(a)
(LexisNexis 2019) (The Wyoming Uniform Power of Attorney Act applies to all powers
of attorney unless it falls within one of the enumerated exceptions). The power of attorney
executed by Mr. Iversen granted Ms. Eaton “full and unlimited power to act on [his] behalf
in the same manner as if [he] were personally present with respect only to the matters that
[he] listed” in the document itself and only upon his incapacitation or disability, as certified
by his physician. Although Ms. Eaton is listed as Mr. Iversen’s attorney-in-fact, Mr.
Iversen never listed any matters for which she was permitted to act on his behalf. Instead,
the space on the power of attorney to fill in what powers he intended to grant Ms. Eaton
was left blank and contains the notary stamp. Therefore, the power of attorney explicitly
limited Ms. Eaton’s authority because Mr. Iversen did not grant her any powers to exercise
on his behalf.
[¶59] Ms. Eaton is statutorily prevented from creating or changing rights of survivorship,
a beneficiary designation, or making a gift without the express authority granted in the
power of attorney. Wyo. Stat. Ann. § 3-9-201(a) (LexisNexis 2019). Furthermore, the
Wyoming Uniform Power of Attorney Act bars her from granting herself an interest in Mr.
Iversen’s property unless explicitly authorized under the terms:
[U]nless the power of attorney otherwise provides, an agent
that is not an ancestor, spouse or descendant of the principal
shall not exercise authority under a power of attorney to create
in the agent, or in a person to whom the agent owes a legal
obligation of support, an interest in the principal’s property
whether by gift, right of survivorship, beneficiary designation,
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disclaimer or otherwise.
Wyo. Stat. Ann. § 3-9-201(b) (LexisNexis 2019); Stutzman v. Office of Wyo. State Eng’r,
2006 WY 30, ¶ 17, 130 P.3d 470, 475 (Wyo. 2006) (“Where the legislature uses the word
‘shall,’ this Court accepts the provision as mandatory and has no right to make the law
contrary to what the legislature prescribed.”); see also 2A C.J.S. Agency § 277 (Aug. 2022
update) (“Absent an express intention, an agent may not use his or her position for the
agent’s or a third party’s benefit in a substantially gratuitous transfer. A general, durable
power of attorney does not authorize an attorney in fact to transfer the principal’s property
to . . . herself unless the power of attorney specifically confers such power.”). We find no
provision in the power of attorney allows Ms. Eaton to confer upon herself an interest in
Mr. Iversen’s property. By application of the plain language of Wyoming Statutes § 3-9-
201(a) and § 3-9-201(b), Ms. Eaton acted beyond the scope of her authority. The deeds
executed by Ms. Eaton are therefore void and of no legal force or significance. See Tram
Tower Townhouse Ass’n, 2022 WY 58, ¶ 87, 509 P.3d at 374 (“Where a party is without
legal authority to convey title to property, the conveyance is void.”).
V. Mitigation of Damages through Redemption of Mortgage
[¶60] The district court found the “Estate is entitled . . . to loss of rents and profits on real
estate properties unlawfully transferred, in addition to the amounts revealed by the
accounting ordered.” In its original order the district court did not enter judgment against
Ms. Eaton on the lost rents or profits, but instead ordered her to respond to the written
demand for accounting within 30 days of December 19, 2019. Regarding the Dean Paul
Drive townhouse, the district court found:
58. During the period of time [Ms. Eaton] claimed
ownership of the Dean Paul property under the
subsequently invalidated deed, the mortgage came into
default and it was eventually foreclosed and sold.
59. The personal representative, daughter, once owned
the Dean Paul property and provided the only estimate
of its value, $90,000. At the date of foreclosure the
mortgagee was owed $61,741 including legal fees and
costs. Following public sale, the estate received $4,496
from excess sale proceeds above the amount due by
reason of the foreclosure. The net loss in value to the
estate was $23,763.
[¶61] Ms. Eaton did not supply an accounting until five months after the district court
entered its order and the Estate filed a motion for order to show cause. The district court
held a contempt hearing on the accounting and entered judgment against Ms. Eaton. It
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ordered Ms. Eaton to “[p]ay the shortfall . . . for the Dean Paul property in the amount of
$23,763.” On appeal, Ms. Eaton argues the Estate failed to mitigate its damages by
redeeming the mortgage, and therefore the district court was precluded from awarding
damages on the Dean Paul property.
[¶62] Ms. Eaton has not pointed to any place in the record showing she raised the issues
of mitigation or the Estate’s duty to redeem the mortgage before the trial court. “Our
precedent is clear that an argument may not be made for the first time on appeal.” Gumpel
v. Copperleaf Homeowners Ass’n, Inc., 2017 WY 46, ¶ 32 n.7, 393 P.3d 1279, 1290 n.7
(Wyo. 2017); Matter of Phyllis V. McDill Revocable Tr., 2022 WY 40, ¶ 22, 506 P.3d 753,
761 (Wyo. 2022) (“Issues raised for the first time on appeal generally will not be considered
by this court unless they are jurisdictional or issues of such a fundamental nature that they
must be considered.”). “It is not the duty of this Court to scour the record to find
confirmation of party assertions; it is the duty of the proponent to support their position
with proper citation to the record.” Black v. William Insulation Co., 2006 WY 106, ¶ 21
n.4, 141 P.3d 123, 131–32 n.4 (Wyo. 2006); W.R.A.P. 7.01(f) (LexisNexis 2022). We,
therefore, decline to consider Ms. Eaton’s argument about mitigation of damages. See
generally Black, ¶ 21, 141 P.3d at 132 (declining to consider an issue raised for the first
time on appeal because there was nothing in the record establishing the claim was made to
the district court).
VI. Judgment on Monthly Rent during Ms. Eaton’s Possession
[¶63] For her final issue, Ms. Eaton argues the district court acted beyond the scope of its
jurisdiction when it ordered her to pay rent in the amount of $1,000 per month. She alleges
the district court erred when it ordered the rent in a quiet title and ejectment action. Ms.
Eaton’s argument does not address the Estate brought a claim for accounting and requested
entry of a judgment requiring Ms. Eaton to repay the Estate amounts lost through her
actions in transferring property pursuant to the power of attorney. She further disregards
the Estate’s answer to her complaint, which states Ms. Eaton’s equitable claims were barred
by her unclean hands and entitled the Estate to damages for lost property and benefits.
[¶64] The district court found the Estate was entitled to judgment on the equitable
accounting claim for lost rents and profits from the property she unlawfully transferred to
herself. The district court did not render a judgment on those lost rents and profits until it
held a two-day evidentiary hearing on June 23, 2020, and August 4, 2020. The record on
appeal does not contain the transcript of the hearing proceedings from June 23, 2020, or a
statement of the evidence under W.R.A.P. 3.03. Further, the record on appeal does not
contain the parties’ written closings, which the district court ordered the parties to submit
to preserve the issues for appeal.
[¶65] The district court is vested with original jurisdiction for all causes of action in
equity. Wyo. Const. art. V, § 10. Wyoming recognizes the equitable remedy of an
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accounting may apply, especially when “the ‘accounts between the parties’ are of such a
‘complicated nature’ that only a court of equity can satisfactorily unravel them.” Bear Peak
Res., LLC v. Peak Powder River Res., LLC, 2017 WY 124, ¶ 76, 403 P.3d 1033, 1056
(Wyo. 2017); Y-O Invs., Inc. v. Emken, 2006 WY 112, ¶ 9, 142 P.3d 1127, 1130 (Wyo.
2006); Dairy Queen, Inc. v. Wood, 369 U.S. 469, 478, 82 S. Ct. 894, 900, 8 L.Ed.2d 44(1962) (citing Kirby v. Lake Shore & M.S.R. Co., 120 U.S. 130, 133–34, 7 S. Ct. 430, 432,
30 L.Ed.2d 569 (1887)). Our review is limited because of Ms. Eaton’s failure to designate
all relevant transcripts and the parties’ written arguments, and her failure to provide cogent
argument regarding the equitable claim of an accounting. Simply asserting the district
court exceeded its jurisdiction or claiming there was insufficient evidence to support the
claim does not make it an issue we can consider for the first time on appeal without a
complete record. See generally Rush v. Golkowski, 2021 WY 27, ¶ 35, 480 P.3d 1174, 1182
(Wyo. 2021) (“Simply asserting that there is a constitutional violation does not make an
issue fundamental in nature” and declining to consider an alleged due process claim when
there was a lack of transcript). We, therefore, decline to address the argument any further.
See WyoLaw, LLC, 2021 WY 61, ¶ 37, 486 P.3d at 975 (Court will not consider arguments
unsupported by cogent argument and relevant authority); Y-O Invs., Inc., 2006 WY 112,
¶ 9, 142 P.3d at 1130–31 (district court’s decision to grant an equitable remedy of an
accounting is reviewed for an abuse of discretion); Lykins v. Habitat for Humanity, 2010
WY 118, ¶ 11, 237 P.3d 405, 408 (Wyo. 2010) (“Lacking a transcript, or a substitute for
the transcript, the regularity of the trial court’s judgment and the competency of the
evidence upon which that judgment is based must be presumed.”).
CONCLUSION
[¶66] Based on the record before us, we cannot find that the district court abused its
discretion or acted contrary to law. We affirm the district court’s entry of judgment against
Ms. Eaton.
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