Albrecht v. Zwaanshoek Holding en Financiering, B.V. ( 1988 )

MACY, Justice.

This is an appeal from a summary judgment foreclosing the mortgage on lands owned by defendants-appellants Donald H. Albrecht and Jo Anne Albrecht (Albrechts) given to secure the payment of a $2 million promissory note held by plaintiffs-appellees Zwaanshoek Holding En Financiering, B.V. (Zwaanshoek) and Zwaanshoek Bouw-En Exploitatiemaatschappij, B.Y. (ZBE).

We affirm in part, reverse in part, and remand.

The Albrechts present the following issues on appeal:

A. Did the District Court commit reversible error in granting summary judgment to plaintiffs herein?

B. Did the District Court commit reversible error in vacating its order staying the underlying action to permit the trial of the antecedent California action?

C. Did the District Court commit reversible error in failing to grant defendants’ motion to join MIG and its subsidiary MIG-USA as parties herein?

D. Is the $1,069,725.90, awarded by the District Court in its judgment purportedly as interest, truly interest or rather is it an impermissible penalty or forfeiture?

E. Was the record before the District Court sufficient to permit it to award plaintiffs $89,000 in attorneys’ fees?

Sometime in 1980, Donald H. Albrecht, through his involvement with two California limited partnerships, Continental Investors, Ltd. and Continental/Tarzana Development Co., became a promoter of the Tar-zana project, a condominium development venture in Tarzana, California. In order to finance the development, Albrecht arranged for a $24 million loan from Citicorp Real Estate, Inc. and Citibank National Association (collectively Citibank). As a condition of the loan agreement, Citibank required Albrecht or the limited partnerships to contribute at least $3.5 million of their own funds toward the project. Albrecht, as a general partner for Continental Investors, Ltd., obtained an additional $3.5 million loan from Zwaanshoek and ZBE, which was evidenced by two non-recourse, interest bearing promissory notes—one for $3 million and the other for $500,000. Each of these promissory notes was secured by a deed of trust on the Tarzana project properties with Citibank, as the primary lender, holding a priority lien.

Albrecht and the limited partnerships defaulted on the Citibank loan, and Citibank instituted foreclosure proceedings. However, on April 29, 1982, Albrecht entered into an agreement with Zwaanshoek and ZBE that restructured the debt obligations on the Tarzana project and enabled Al-brecht and the limited partnerships to achieve a settlement with Citibank. Under that agreement, Zwaanshoek and ZBE assigned to Albrecht their $3.5 million promissory notes and related deeds of trust and loaned Albrecht an additional $1 million. In return, Albrecht provided Zwaanshoek and ZBE with a $1 million promissory note, which was secured by an irrevocable letter of credit issued by the Bank of America, and Donald H. Albrecht and Jo Anne Al-brecht gave Zwaanshoek and ZBE a $2 million promissory note, which was secured by a mortgage on the Arbardee Ranch located in Teton County, Wyoming. The Albrechts also agreed, inter alia, that, during the month of October 1982, they would secure the release of a first mortgage on the Arbardee Ranch given to secure the payment of a promissory note they executed and delivered to W.B. Wells and Gladys H. Wells.

On November 1, 1985, Zwaanshoek and ZBE, believing that a breach of the agreement had occurred on the part of the Al-brechts, advised the Albrechts that they were in default in the performance of their obligations under the agreement and gave them thirty-one days in which to cure such default by paying off the promissory note secured by the Wells mortgage. The Al-brechts failed to cure the default, and this action was commenced to foreclose the mortgage on the property securing the payment of the $2 million promissory note, which was accelerated pursuant to the terms of the agreement and promissory note. The Albrechts responded by filing a combined answer, counterclaim, and motion. The answer alleged numerous affirmative defenses, including lack of consideration, and that Zwaanshoek and ZBE were enjoined by a California court from proceeding with this action. The counterclaim in substance alleged that Zwaan-shoek, ZBE, and others, collectively called the “Arab Group,” made a fraudulent oral promise to invest several million dollars in the Albrechts’ real estate projects to induce the Albrechts to deliver their $2 million promissory note to Zwaanshoek and ZBE. The motion alleged that Mediterranee Investors Group S.A. (MIG) and Mediterranee Investors Group-USA, Inc. (MIG-USA) are the parent companies of Zwaanshoek and ZBE and prayed that they be ‘joined as indispensable parties under W.R.C.P. 13(h) and 19.

Initially, the court stayed the present action because of the prior order of the Superior Court of California, County of Los Angeles, enjoining Zwaanshoek and ZBE from foreclosing the promissory note and mortgage. However, after argument was heard, the court lifted that stay. Zwaan-shoek and ZBE filed a motion for summary judgment, which was supported by a brief, affidavits, and exhibits. The Albrechts responded with a brief in opposition to the motion for summary judgment, supporting exhibits, and affidavits. After consideration, the court granted Zwaanshoek’s and ZBE’s motion for summary judgment, and Zwaanshoek and ZBE thereafter moved the court to enter an order awarding costs and attorney’s fees. On May 4, 1987, a final judgment was entered, and this appeal was taken.

SUMMARY JUDGMENT

The Albrechts contend that the court committed reversible error in granting summary judgment to Zwaanshoek and ZBE because genuine issues of material fact did exist.

In Fiedler v. Steger, 713 P.2d 773, 774 (Wyo.1986), quoted in Walters v. Michel, 745 P.2d 913, 915 (Wyo.1987), we repeated our well-known general standards governing appellate review of summary judgments:

A succinct and conclusive critique of the Wyoming summary-judgment law is afforded by the court in Garner v. Hickman, 709 P.2d 407, 410 ([Wyo.] 1985):

“When reviewing a summary judgment on appeal, we review the judgment in the same light as the district court, using the same information. A party moving for summary judgment has the burden of proving the nonexistence of a genuine issue of material fact. Material fact has been defined as one which, if proved, would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties. Upon examination of a summary judgment, we view the record from the vantage point most favorable to the party opposing the motion, giving him all favorable inferences which may be drawn from the facts.”

(Citations omitted.)

The pleadings, affidavits, and exhibits of Zwaanshoek and ZBE clearly and unequivocally show that the Albrechts failed to timely secure the release of the Wells mortgage, that this failure triggered the acceleration of the payment of the $2 million promissory note pursuant to the terms of the promissory note and the agreement,¹ that the Albrechts failed to pay the promissory note, and that there was no promise by anyone in the Arab Group to invest in any of the Albrechts’ other real estate projects.

The pleadings, affidavits, and exhibits presented by the Albrechts to oppose the motion for summary judgment on the theory that the $2 million promissory note was not supported by consideration because of fraudulent misrepresentations merely contain general allegations and conclusory statements of fraud. This Court has held that:

The initial burden is on the movant to show that there is no genuine issue of material fact. Once that showing is made, it is incumbent upon the party opposing the motion to come forward with specific facts to show that there is a genuine issue of material fact.

Stundon v. Sterling, 736 P.2d 317, 318 (Wyo.1987), quoted in Pace v. Hadley, 742 P.2d 1283, 1285 (Wyo.1987) (citation omitted). General allegations and conclusory statements are not enough. Jones Land and Livestock Co. v. Federal Land Bank of Omaha, 733 P.2d 258 (Wyo.1987). Fraud must be established by clear, unequivocal, and convincing evidence and will never be presumed. Duffy v. Brown, 708 P.2d 433 (Wyo.1985).

The trial court correctly determined that there was no genuine issue of material fact and properly granted Zwaanshoek and ZBE summary judgment as a matter of law.

VACATING STAY

The Albrechts assert that the trial court abused its discretion and committed reversible error when it vacated its order staying this action and disregarded an injunction filed in a preexisting action in the State of California. They contend that, under the principles of comity and justice, the court should have stayed this case until the prior California case had been concluded. The Albrechts also allege that Zwaan-shoek and ZBE are guilty of forum-shopping and misuse of jurisdictional resources.

In the most recent case of Rivermeadows, Inc. v. Zwaanshoek Holding and Financiering, B.V., 761 P.2d 662, 668 (Wyo.1988), a case involving some of these same parties, we stated, quoting Beach v. Youngblood, 215 Iowa 979, 247 N.W. 545, 549 (1933):

“It is a well and universally established principle that the disposition of real estate, either by deed, descent, or any other method, must be governed by the law of the state where the same is situated.”

In that case, we also discussed other case law which uniformly established that the courts of one state do not have authority to order a foreclosure on mortgaged property located in another state. We see no reason why the logic used in Rivermeadows, Inc. and the cases cited therein should not apply here.

In this case, the property to be foreclosed is located in Teton County, Wyoming. The Wyoming court is the only forum where all the claims could be effectively litigated. The court did not abuse its discretion when it vacated its order staying the action.

JOINDER OF PARTIES

The Albrechts allege that the court abused its discretion and committed reversible error when it denied their motion to join MIG and MIG-USA as parties to the action pursuant to W.R.C.P. 13(h) and 19.² They claim that the transactions between the Albrechts and Zwaanshoek/ZBE were all negotiated by Donald H. Albrecht with MIG and MIG-USA as the parent companies of Zwaanshoek and ZBE.

W.R.C.P. 13(h) states:

Persons other than those made parties to the original action may be made parties to a counterclaim or cross:claim in accordance with the provisions of Rules 19 and 20.[³]

W.R.C.P. 19(a) provides:

A person who is subject to service of process shall be joined as a party in the action if (1) in his absence complete relief cannot be accorded among those already parties, or (2) he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may (i) as a practical matter impair or impede his ability to protect that interest or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of his claimed interest. If he has not been so joined, the court shall order that he be made a party. If he should join as a plaintiff but refuses to do so, he may be made a defendant. If the joined party objects to venue and his joinder would render the venue of the action improper, he shall be dismissed from the action.

We stated in Rivermeadows, Inc., 761 P.2d at 668:

This Court has long recognized the traditional definition of an indispensable party with regard to W.R.C.P. 19(a). In American Beryllium & Oil Corporation v. Chase, 425 P.2d 66, 68 (Wyo.1967) (quoting from Amerada Petroleum Corporation v. Rio Oil Co., 225 F.Supp. 907, 910 (D.C.Wyo.1964)), quoted in Reilly v. Reilly, 671 P.2d 330, 332 (Wyo.1983), we stated:

“An indispensable party has been defined as one without whose presence before the court a final decree could not be made without either affecting his interest or leaving the controversy in such a condition that its final determination might be wholly inconsistent with equity and good conscience. Whether or not a person is an indispensable party cannot be determined by a prescribed formula because the facts peculiar to each case are determinative of that question.”

(Citations omitted.) See also Johnson v. Aetna Casualty & Surety Co. of Hartford, Conn., 608 P.2d 1299 (Wyo.1980).

MIG and MIG-USA are not indispensable parties to this action. Zwaanshoek’s and ZBE’s claims are solely on the bases of default on the $2 million promissory note and breach of the agreement to discharge the obligations of the promissory notes secured by the Wells and Murray mortgages. The Albrechts failed to show how either Zwaanshoek or ZBE defrauded them by its corporate makeup. The Albrechts apparently were aware that Zwaanshoek and ZBE were related and had the same parent companies. Although they were aware of these facts, the Albrechts chose to enter into transactions separately with Zwaan-shoek and ZBE. MiG’s and MIG-USA’s participation was not required to resolve the claims, defenses, or counterclaim alleged in this case, and they are not indispensable parties. The court did not abuse its discretion in refusing the joinder of those parties.

INTEREST

The Albrechts contend that the amount of $1,069,725.90 awarded as interest by the court in its judgment was not an award of interest but rather was an impermissible penalty or forfeiture. The Al-brechts assert that their failure to discharge the obligations of the promissory notes secured by the Wells and Murray mortgages was only a “trival or technical” breach of the overall agreements made by the parties; therefore, the award of interest on the $2 million promissory note under the guise of equity amounts to an impermissible forfeiture or penalty. While we cannot agree with the Albrechts’ reasoning, we agree that the trial court improperly awarded interest to Zwaanshoek and ZBE.

In Marcam Mortgage Corporation v. Black, 686 P.2d 575, 580 (Wyo.1984), we stated:

“The disposition of this case is controlled by Younglove v. Graham & Hill, Wyo., 526 P.2d 689 (1974), upon which Barker Brothers Company relies. In that opinion this court recognized the general proposition that forfeitures are not favored, as suggested by the Johnsons. The court concluded, however, that the general concept with respect to abhorrence of forfeitures does not justify a court of equity in disregarding and setting aside a valid contractual obligation of the parties in the absence of some particular equitable reason.” Barker v. Johnson, Wyo., 591 P.2d 886, 889 (1979).

And:

“If there is an express contract in connection with the damages, that contract, of course, must govern.” Studer v. Rasmussen, 80 Wyo. 465, 344 P.2d 990, 998 (1959).

We have also recognized that:

[T]he supreme court will not rewrite clear contracts. Nor will this court rewrite contracts under the guise of interpretation.

Wyoming Machinery Company v. United States Fidelity and Guaranty Company, 614 P.2d 716, 720 (Wyo.1980) (citation omitted). See also Wyoming Recreation Commission v. Hagar, 711 P.2d 402 (Wyo.1985) (quoting Kuehne v. Samedan Oil Corporation, 626 P.2d 1035 (Wyo.1981)). The $2 million promissory note provides in applicable part:

Any breach by Maker, or by any party constituting Maker, as defined herein, of the terms or provisions of the Note Purchase Agreement or of the Mortgage, shall be deemed to be a default by Maker [of] the terms of this Note.

* * * [A] default in the payment of any amount due hereunder may be cured within ten (10) days after the due date thereof by the payment of the amount so due. The outstanding principal balance hereof shall bear interest at the lesser of two (2) percent over the LIBOR Rate or the highest lawful rate per annum during the period in which this Note is in default. The LIBOR Rate shall be the six (6) month London Interbank Offered Rate as quoted to the London Branch of The Bank of America N.T. & S.A. at 11:00 A.M. London time on the date of default. The failure of Lender to exercise this option to accelerate the maturity of the principal sum hereof shall not constitute a waiver of such option, which option shall remain continuously in force.

It continues with respect to default, ac-céleration, and interest as follows:

The whole of the principal sum of this Note shall immediately become due and payable, at the option of Lender, upon the failure of the Maker to pay any payment required hereunder within ten (10) days * * *. The failure of Lender to exercise this option to accelerate the maturity of the principal sum hereof shall not constitute a waiver of such option, which option shall remain continuously in force.

(Emphasis added.) It is clear from the plain and unambiguous language of the promissory note that, upon default, the lender had the option to accelerate payments and to declare the entire principal balance due and payable. Thus, the exercise of the option to accelerate payments would be the triggering event that would result in the promissory note bearing interest as provided.

On November 1, 1985, the lender mailed a letter concerning default to the Al-brechts, which stated:

Unless such default is cured by the payment in full to Mr. and Mrs. Wells, not later than thirty-one days after the date of your receipt of this letter, * * * Lenders intend to accelerate payment of the $2,000,000 promissory note * * *.

(Emphasis added.) However, the option to accelerate was never exercised. The letter of November 1, 1985, only expressed an “inten[t] to accelerate payment.” Nevertheless, the trial court awarded summary judgment to Zwaanshoek and ZBE, including interest on the $2 million promissory note in the amount of

$1,057,363.01 computed at the rate of 1178% per annum from November 2, 1982 (the date of default) through April 15, 1987 * * *.

In Mortgage Trust Co. of Pennsylvania v. Bach, 69 Kan. 749, 77 P. 545, 545 (1904), a promissory note bearing interest at six and one-half percent per annum contained a provision that, upon default in payment, “the debt should immediately become due and payable, at the option of the legal holder thereof, and * * * should draw interest at the rate of 10 per cent.” (Emphasis added.) The court stated:

There was a default on July 1, 1902, and if the trust company had then exercised its option, and elected to declare the entire debt due, it would have been entitled to the increased rate. The option, however, was not in fact exercised until this action was begun. * * * That circumstance afforded the holder ground for accelerating maturity, but until it in fact exercised its option, and declared the debt due by reason of the default, the note was not mature, and it was not entitled to the higher rate of interest.

Id. at 546.

A no-interest bearing note in Howell v. Ablah, 188 Kan. 244, 361 P.2d 872 (1961), provided for ten percent interest upon nonpayment of any installment. With respect to default, the note provided that “ ‘all remaining installments shall at the option of the legal holder become immediately due and payable.’ ” Id. at 877. The court stated that “[pjlaintiffs exercised their option to make payments under such note due and payable when they filed the instant action on February 10, 1958,” id. at 877, and affirmed the decision of the trial court which was:

“When the holder exercised his option and declared the note due and payable on February 10, 1958 by filing suit, the entire principal amount of the note became due and payable and should draw interest at the rate of 10% per annum from that date.”

Id. at 877. See also Annotation, Validity and effect of anticipatory provision in contract in relation to rate of interest in the event of default, 12 A.L.R. 367 (1921).

We know of no reason why we should come to a different conclusion in this case than those conclusions drawn in the previously mentioned cases with essentially the same circumstances. We hold therefore that the trial court incorrectly awarded interest on the $2 million promissory note to Zwaanshoek and ZBE. Absent a declaration of acceleration, the interest did not begin to run until this action was commenced. Accordingly, we reverse the trial court’s award of interest.

ATTORNEYS’ FEES

The Albrechts contend that the award of attorneys’ fees in the amount of $89,000 must be overturned because there was no competent evidence to support the number of hours claimed or the hourly charge for the legal services rendered.

In Jones Land and Livestock Co., 733 P.2d at 265, we acknowledged that:

[Tjhere must be some evidentiary showing in order to make a determination of reasonable attorney’s fees.

We have also recognized that:

Reasonableness of an attorney’s fee must always depend upon facts and circumstances of the litigation and there must be some proof or evidentiary basis for determination of a reasonable attorney fee. * * *

Evidence only of the amount of attorney fees normally awarded in cases involving the same type of claim is insufficient upon which to award attorney fees. A complete lack of evidence as to the value of attorney fees is likewise insufficient.

Anderson v. Meier, 641 P.2d 187, 192 (Wyo.1982) (emphasis added and citations omitted).

The affidavit filed by Zwaanshoek’s and ZBE’s attorneys regarding their fees states as follows:

Plaintiffs have been charged in connection with the captioned case legal fees as follows:

Charged by Simpson & Kepler:

Legal services $780.00

Out-of-pocket costs 35.50 $815.50

Billable hours charged by Rogers and Wells —890 hours

Examination of the record discloses that no other evidence was presented showing the hourly charge for the legal services rendered or the hourly rate charged by, or normally awarded to, attorneys in cases involving this type of claim. Likewise, there was no showing that the attorneys’ fees charged were reasonable. We hold that the trial court erred when it awarded attorneys’ fees to Zwaanshoek and ZBE, and we reverse the trial court’s order in that regard.

Affirmed in part, reversed in part, and remanded to the trial court for entry of judgment in accordance with this opinion.

CARDINE, J., and O’BRIEN, District Judge, filed opinions concurring in part and dissenting in part.

THOMAS and URBIGKIT, JJ., filed dissenting opinions.

1 . After their action was commenced, the Al-brechts failed to timely make an installment payment on another promissory note secured by a second mortgage (Murray Mortgage) on the Arbardee Ranch. This default also accelerated the payment of the $2 million promissory note. The trial court entered an order granting a motion to permit an amendment of the complaint to allege the default and found this default to also be a basis for entry of the summary judgment.

2 . We note that, while there is no written order in the record denying the joinder motion, it was de facto denied when the case was concluded by the entering of a final order and judgment without further discussion or appearance by those parties.

We also note that this issue is nearly identical to that argument asserted by Donald H. Al-brecht and his Wyoming corporation, Rivermea-dows, Inc., in the case of Rivermeadows, Inc., 761 P.2d 662.

3 . Pursuant to our firmly established rule of law that questions not asserted at the trial court level and on appeal are not properly before this Court, we decline to address W.R.C.P. 20 as it relates to this issue.