Bragg v. Marion

BROWN, Justice.

The trial court found against appellants in their quiet title action, which appellants were claiming through a quitclaim deed. The court found, among other things, that appellants failed to show “a connected chain of title vesting a legal estate in them,” and failed to show possession. After the trial court’s letter opinion, appellants moved to amend the pleadings to conform to the evidence by asking to be allowed to plead ejectment. The trial court refused to allow the amendment, apparently considering it to be untimely. On appeal, appellants ask this court to notice the Uniform Declaratory Judgment Act. § 1-37— 101, et seq., W.S.1977.

Appellants raise several issues on appeal. They contend that it is not necessary to show a connected chain of title beyond the common grantor to adverse parties in a quiet title or ejectment action. They also contend that the trial court erred in finding that appellants received no estate in real property by virtue .of their quitclaim deed. They finally contend that the trial court erred when it denied their motion to amend the complaint to conform to the proof and request ejectment.

.We will reverse and remand.

Appellants’ initial pleadings followed Form 16 set out in Wyoming Rules of Civil Procedure, “complaint in action to quiet title.” Appellants apparently pursued a quiet title action through trial. The issues upon which the case was to be tried were set out in the pretrial order:

“A. The parties agree that the issues to this litigation should be framed as follows:

“1. Is the Heath-Bragg quitclaim deed sufficient in properly describing the premises intended to be conveyed?

“2. Is a quitclaim deed void for lack of delivery and consideration?”

We do not know what theory was contemplated by these issues, nor do we know that any cause of action could be determined by a resolution of them. Appellants, in their post trial motions conceded that they failed to prove a traditional quiet title action. A quiet title action requires proof of possession, while an ejectment action requires proof that the complainant is illegally being kept from possession.¹

The principal thrust of this appeal, then, is the court’s denial of appellants’ motion to amend. We now consider the effect of Rule 15(b), Wyoming Rules of Civil Procedure:

“When issues not raised by pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment; but failure so to amend does not affect the result of the trial of these issues. * * * ”

Rule 15(b), Federal Rules of Civil Procedure, contains language identical to that portion of Rule 15(b), W.R.C.P., set out above.

When a motion is made to amend or conform to the proof, the court must determine if an issue not within the scope of the pleadings was tried with the express or implied consent of the parties. Knudson v. Boren, 261 F.2d 15 (10th Cir.1958).

“ * * * Express consent may be given by stipulation, or may be incorporated in a pretrial order and rarely raises any serious fact questions. Implied consent, however, is much more difficult to establish and seems to depend on whether the parties recognized that an issue not presented by the pleadings entered the case at trial. A party who knowingly acquiesces in the introduction of evidence relating to issues that are beyond the pleadings is in no position to contest a motion to conform. Thus, consent generally is found when evidence is introduced without objection, or when the party opposing the motion to amend produced evidence bearing on the new issue. Other factors may lead to a contrary conclusion, however. * * * [W]hen the evidence that is claimed to show that issue was tried by consent is relevant to an issue already in the case, as well as to the one that is the subject matter of the amendment, and there was no indication at trial that the party who introduced the evidence was seeking to raise a new issue, the pleadings will not be deemed amended under the first portion of Rule 15(b).

* ⅝5 * ⅝! ⅜ *

“Courts occasionally refuse to permit amendments on the ground that to do so would be prejudicial to the opposing party, * * * When a party does not recognize the significance of the introduction of certain evidence at trial and therefore neglects to contest it, a motion to amend could be denied either because the party would be prejudiced in the presentation of his case or because he could not realistically be said to have given his implied consent. Of course, the litigant’s failure to comprehend the purpose of the deviating evidence must be reasonable.” Wright & Miller, Federal Practice and Procedure § 1493, pp. 461-469 (1971).²

If the court determines that an issue ■was tried with the express or implied consent of the parties it has no discretion to refuse to allow the amendment. In this event the amendment is mandatory. Wal-lin v. Fuller, 476 F.2d 1204, 1210 (5th Cir. 1973).

Federal Procedure, L.Ed. § 62:289 (1981), says:

“In keeping with its purpose to insure that the parties prevail or fail on the merits rather than on the technical niceties of the pleadings, the first sentence of FRCP 15(b) envisions and allows liberal allowance of amendments to conform the pleadings to the evidence. Such a policy necessarily entails the exercise of discretion by the trial court. Thus, the question whether an issue was tried with the express or implied consent of the parties is a matter entrusted to the sound discretion of the trial court, and its finding in this regard will not be disturbed on appeal in the absence of an abuse of such discretion. However, the court’s discretion is limited to finding whether the issue was tried with the express or implied consent of the parties. If it was, the court has no discretion to refuse to allow the amendment; in such a case, the amendment is mandatory.”

The trial court here made no findings whether the issue of ejectment was tried by implied consent. Neither did it make any finding whether appellants might be entitled to relief on their quiet title claim under the Declaratory Judgment Act under the evidence presented, understandably so, since appellants did not mention the Declaratory Judgment Act in their motion to amend.³

In Ohio Oil Co. v. Wyoming Agency, 63 Wyo. 187, 179 P.2d 773, 780 (1947), we said:

“ * * * An action to quiet title is essentially an action for declaratory relief. Holly Sugar Corp. v. Fritzler, 42 Wyo. 446, 462, 296 P. 206; Borchard on Declaratory Judgments (2d ed.) 139. It has been said that the act provides for ‘a kind of expanded bill quia timet, meant to do in general what that suit did in its limited field.’ Judge L. Hand in Meeker v. Baxter, 2 Cir., 83 F.2d 183, 187. That the purpose of the act ‘to settle and to afford relief from uncertainty and insecurity with respect to rights’ (Sec. 3-5812) may be carried out in actions not expressly based on the act, is shown by many cases. [Emphasis added.] Hasselbring v. Koepke, 263 Mich. 466, 248 N.W. 869, 93 A.L.R. 1170 (action to enjoin interference with a claimed easement) * * * Teal v. Maxon, 233 Ala. 23, 169 So. 477 (action to quiet title to land not in plaintiffs possession). In Renwick v. Hay, 90 N.J.Eq. 148, 106 A. 547 (noticed in Holly Sugar Corp. v. Fritzler, 42 Wyo. at page 464, 296 P. at page 210), a suit to determine rights in private ways, it was held that relief might be granted by considering the case either as one in equity or as one under the declaratory judgment act. In Faulkner v. Keene, 85 N.H. 147, 156, 155 A. 195, 201, it is stated that ‘The cause being plainly presented to the court, the appropriate remedy will be granted, however erroneously the proceeding be entitled.’ See, also, Borchard on Declaratory Judgments, pp. 427, 741.”

Anderson on declaratory judgments says: “A declaratory action is an appropriate remedy for the construction and interpretation of a deed or other muniment of title. This is true only if a justiciable controversy is present in the action. The action has been invoked to determine kaleidoscopic complicated questions arising from contentions and controversies with respect to the interpretation of deeds * * *.” 2 Anderson, Declaratory Judgments, § 608, Construction of Deeds, pp. 1359-1360 (1951).

In Ohio Oil v. Wyoming Agency, supra, plaintiff-appellee sued to quiet title. The trial court quieted title in plaintiff-appellee. We noted that plaintiff had not been in actual possession, but that the evidence was sufficient to prove title to a “mineral fee.” We stated that the trial issues raised by pleadings showed a dispute over title, and that we would not reverse a judgment which might be sustained under the Declaratory Judgment Act then in effect, even though appellant had not asked us to notice the Declaratory Judgment Act.

In Morad v. Brown, Wyo., 549 P.2d 312 (1976), cross-appellant Brown, plaintiff below, had filed to quiet title against Morad to a tract of land which Brown did not possess. Brown moved for relief under Rule 15(b), W.R.C.P., which motion was denied. Brown admitted that under his original pleadings, the' trial court should not have quieted the title in him against Morad because Brown was not in possession. It is not clear from the case whether Brown’s motion for relief under Rule 15(b) mentioned the Declaratory Judgment Act. The trial court had used the Declaratory Judgment Act to hold for Brown against defendants other than Morad in the action. This court decided that the trial court had correctly disposed of the two main issues before it, which were that Morad’s tax-based title was void and that Brown’s legal title was proved. We noted that; in effect, the trial court had quieted title in Brown, even though Brown was not in possession and Morad was. We also noted that the trial court fell short of giving Brown possession or a decree to that effect. We reversed, indirectly ordering the trial court to enter an order quieting title in Brown, under the Declaratory Judgment Act. We did allow further proceedings concerning the value of any claim Morad might have against Brown for improvements Morad had placed on the property.

This court has cited Rule 15(b), W.R.C.P., as a basis for conforming the pleadings to the proof on appeal, even though the Rules of Civil Procedure are not the rules under which this court proceeds. In Lore v. Town of Douglas, Wyo., 355 P.2d 367 (1960), we stated that we were cognizant of appellate courts’ reluctance to assume or permit an amendment to conform the pleadings to the proof to reverse an otherwise correct judgment. We went on to use Rule 15(b), W.R.C.P. to decide that the issue of negligence by a municipality had been tried with the implied consent of the parties. We then reversed and remanded, saying that testimony showing negligence was un-rebutted. The case was resubmitted to the trial court so that it would have “an opportunity to determine, according to definite standards, the care which was requisite under the circumstances.” Lore v. Town of Douglas, supra, at 371.

This court, then, has used the Declaratory Judgment Act to uphold a decision to quiet title, even though the decision to quiet title was technically incorrect on the question of possession, and even though appellant did not raise the Declaratory Judgment Act below or on appeal. Ohio Oil v. Wyoming Agency, supra. It has also used the Declaratory Judgment Act to reverse and direct the trial court to quiet title in an appellant. Morad v. Brown, supra. It has also assumed or permitted an amendment to allow the pleadings to conform to the proof, and then reversed the judgment based on un-contradicted evidence in the record. Lore v. Town of Douglas, supra.

We are going to take none of these courses of action here. The courts which affirm or reverse judgments on theories other than those used by the lower courts should do so only if the record

“ * * * clearly indicates that the issue on which the case is to be affirmed actually was tried with the knowing consent of the parties. However, if the record is incomplete or if it is uncertain whether the party opposing the motion to amend had notice of the unpleaded issue at the trial stage, the appellate court should render its decision in conformity with the issues relied upon by the lower court in reaching its judgment.” Wright & Miller, Federal Practice and Procedure § 1494, p. 478 (1971).

In this case, the record is not clear whether appellees had notice of the possible unpleaded issues of ejectment and of validity of title under the Declaratory Judgment Act. We could, then, merely address the question whether the trial court was correct in its decision under the quiet title statute; if it was, we could affirm. However, we do not want to affirm, because the trial court did not determine if the issues of ejectment or of validity of title under the Declaratory Judgment Act were impliedly tried. Although we have ruled before that issues have been impliedly tried when such question has not been presented to the trial court first, we think we have been too eager in the past in these types of cases to perform a task which is best left to the trial court’s discretion.

We therefore hold that the trial court should determine if the issue of ejectment was tried by the implied consent of the parties or if the issue of the validity of title was impliedly tried under the Declaratory Judgment Act. If it decides that either of these issues was impliedly tried, then it must allow the amendment and make a determination whether appellants were entitled to prevail under either of these theories. It may be necessary for the court to take additional evidence or to have a new trial to properly resolve the issues we have addressed.

Reversed and remanded for proceedings consistent with this opinion.

1 . Section 1-32-201, W.S.1977:

“An action may be brought by a person in possession of real property against any person who claims an estate or interest therein adverse to him, for the purpose of determining the adverse estate or interest. The person bringing the action may hold possession himself or by his tenant.”

Section 1-32-202, W.S.1977:

“In an action to recover real property it is sufficient if the plaintiffs petition states that he has a legal estate in and is entitled to possession of the real property, describing the same with sufficient certainty as to enable an officer holding an execution to identify it, and that the defendant unlawfully keeps him out of possession. It is not necessary to state how the plaintiffs estate or ownership is derived.”

2 . The following is an example of how a court uses its discretion to decide whether an issue could fairly be said to have been tried by express or implied consent.

“Although leave to amend pleadings should be freely given when justice requires, the trial judge’s discretion is broad and its sound exercise usually depends on the presence or absence of such factors as ‘undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc.’ [Citations.] In a motion under rule 15(b) to amend the complaint to conform to the proof, the most important question is whether the new issues were tried by the parties’ express or implied consent and whether the defendant ‘would be prejudiced by the implied amendment, i.e., whether he had a fair opportunity to defend and whether he could offer any additional evidence if the case were to be retried on a different theory.’ 3 Moore’s Federal Practice para 15.13[2], at 993 (2d ed. 1966) [Citations.]. The purpose of Rule 15(b) is to allow the pleadings to conform to issues actually tried, not to extend the pleadings to introduce issues inferentially suggested by incidental evidence in the record. [Citations.] * * * ” Browning Debenture Holders’ Committee v. Dasa Corporation, 560 F.2d 1078, 1086 (2nd Cir.1977).

3 . “Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by the Wyoming constitution or by a statute, municipal ordinance, contract or franchise, may have any question of construction or validity arising under the instrument determined and obtain a declaration of rights, status or other legal relations.” Section 1-37-103, W.S.1977.