author: JACKSON, Judge:

text:
    2004 UT App 40
    STATE of Utah, Plaintiff and Appellee, v. Matthew Stephen SHIPP, Defendant and Appellant.
    No. 20020887-CA.
    Court of Appeals of Utah.
    Feb. 20, 2004.

      Tara L. Isaacson and Walter F. Bugden, Bugden & Isaacson LLC, Salt Lake City, for Appellant.
    Mark L. Shurtleff, Attorney General, Karen A. Klucznik, and Matthew D. Bates, Assistant Attorneys General, Salt Lake City, for Appellee.
    Before Judges GREENWOOD, JACKSON, and ORME.
   OPINION

JACKSON, Judge:

¶ 1 Appellant Matthew Stephen Shipp appeals a conviction for six counts of aggravated sexual assault, first-degree felonies, in violation of Utah Code Annotated section 76-5-405 (1999). We reverse and remand for a new trial.

BACKGROUND

¶ 2 On August 1 and 2, 2002, Shipp was tried before a jury on six counts of aggravated sexual assault. Immediately before the jury returned a verdict of guilty, the prosecutor informed the trial court that Detective Beesley, the prosecution’s lead witness and case manager, had a conversation with Juror Chamberlain at the outset of trial.

¶ 3 The conversation took place during the seating of the prospective jurors, just before voir dire. Juror Chamberlain recognized Detective Beesley from her work at Primary Children’s Hospital. Juror Chamberlain asked Detective Beesley if he went to the hospital frequently, and Detective Beesley responded that he went to the hospital “all the time” in his capacity as an officer with the special victims unit. Detective Beesley also confirmed that his duties included bringing abused children to the hospital. Detective Beesley did not inform the court or the prosecutor about this contact until just before the jury returned the verdict.

¶4 With both the prosecution’s and the defense’s permission, the trial court waited until the jury returned the verdict before taking testimony about the contact. The jury ultimately returned with a guilty verdict. In chambers, Juror Chamberlain acknowledged having had the conversation with Detective Beesley and that she had seen Detective Beesley at the hospital “on two or three cases, maybe more than that.” She indicated that she did not know whether, in the course of her duties as a nurse, she had personally cared for any of the children Detective Beesley brought to the hospital, but indicated that it was possible.

¶ 5 Shipp filed a motion for a mistrial based on the improper juror contact with the State’s witness. The trial court denied the motion, ruling that the contact was “merely incidental” and did not give rise to a presumption of prejudice. Shipp appeals.

ISSUE AND STANDARD OF REVIEW

¶ 6 Shipp challenges the trial court’s denial of his motion for mistrial. We review a denial of a motion for mistrial for abuse of discretion. See State v. Swain, 835 P.2d 1009, 1010 (Utah Ct.App.1992).

ANALYSIS

¶ 7 State v. Pike, 712 P.2d 277 (Utah 1985), controls our decision in this case. In Pike, the Utah Supreme Court held that any contact between a juror and a witness, party, or court personnel that “is more than incidental” warrants the attachment of a presumption of prejudice. Id. at 280. Utah courts “have long taken [this] strict approach,” id. at 279, because contacts between jurors and other interested persons may “breed[ ] a sense of familiarity that could clearly affect the juror’s judgment as to credibility.” Id. at 281.

Pike identified two reasons for the existence of the rebuttable presumption. First, it is difficult, if not impossible, to prove how an improper contact may have influenced a juror.... The second reason for the presumption is that an improper juror contact creates an appearance of collusion or impropriety in the proceedings from which the judicial process may suffer in the eyes of the public. If improper juror contact is not prevented, a doubt may exist in the mind of the losing party, and the public as a whole, as to whether the defendant was given a fair trial.

State v. Swain, 835 P.2d 1009, 1011 (Utah Ct.App.1992).

¶ 8 Any contact between a juror and a witness will raise the presumption of prejudice if it is more than incidental. See Pike, 712 P.2d at 280; State v. Erickson, 749 P.2d 620, 621 (Utah 1987) (determining an improper “conversation was more than a brief, incidental contact where only remarks of civility were exchanged” because “personal matters such as family members and the witness’s job were discussed”); State v. Jonas, 793 P.2d 902, 909 (Utah Ct.App.1990) (stating a contact is more than incidental if it involved conversation “in the normal sense of an oral exchange of sentiments, observations, opinions, [or] ideas” (quotations and citation omitted)); Logan City v. Carlsen, 799 P.2d 224, 227 (Utah Ct.App.1990) (stating the scope and subject matter of a conversation between juror and witness or court personnel are irrelevant if the conversation goes beyond mere pleasantries).

¶ 9 In this case, Juror Chamberlain approached Detective Beesley, the State’s key witness, and engaged him in a short conversation. That conversation reinforced Juror Chamberlain’s memory of having seen Detective Beesley at work, and further identified Detective Beesley’s participation in the investigation and prosecution of eases involving abused children. This conversation unquestionably went beyond mere civilities, see Erickson, 749 P.2d at 621 (holding conversation went beyond mere civilities where witness’s work was discussed), and had a tendency to “breed[] a sense of familiarity that could clearly affect the juror’s judgment as to credibility.” Pike, 712 P.2d at 281.

¶ 10 The State cites Jonas and State v. Day, 815 P.2d 1345, 1349 (Utah Ct.App.1991), for the proposition that the conversation between Juror Chamberlain and Detective Beesley was merely incidental and did not give rise to the presumption of prejudice. In Jonas, a bailiff informed the jury that one juror would be replaced because his sister had been shot. 793 P.2d at 907. The comment was made to all of the jurors together, and the jurors made no response. See id. at 909. We noted “[t]here was no exchange at all because the jurors said nothing. The bailiff merely conveyed information about why juror Davis would not be present for the balance of trial.” Id. (emphasis added).

¶ 11 Day involved a juror left behind by the other jurors during a lunch break. See 815 P.2d at 1349. At the instruction of the judge, the court clerk and a witness drove the juror to meet the other jurors. See id. The three men did not engage in any conversation during the drive, and thus the contact was merely incidental, not giving rise to the presumption of prejudice. See id.

¶ 12 Jonas and Day are distinguishable from the present case. Those cases both involved absolutely no conversation between the jurors and the court personnel and/or witness. In this case, however, Juror Chamberlain told Detective Beesley that she recognized him and said, “You come with the child abuse cases, and I have seen you with a couple of eases of child abuse at Primary Children’s Hospital.” Detective Beesley answered “yes.” Detective Beesley further stated that he had been at the hospital as part of his normal work responsibilities with the special victims unit. The exchange between the two encompassed observations as to Detective Beesley’s professional contact with abused children at Primary Children’s Hospital, where Juror Chamberlain worked caring for children, thus going beyond mere civilities.

¶ 13 The State argues two further reasons why the conversation was merely incidental. First, it makes much of Detective Beesley’s apparent passiveness in the conversation. However, the Pike rule is concerned with the biasing effect on the juror, see 712 P.2d at 281, not the witness’s or the State’s fault in the matter. We have previously held a conversation instigated by a juror to be improper and to raise a presumption of prejudice. See State v. Swain, 835 P.2d 1009, 1011 (Utah Ct.App.1992); cf. Jonas, 793 P.2d at 909 (“There was no exchange at all because the jurors said nothing.” (Emphasis added.)).

¶ 14 Second, the State argues that the conversation was “so brief and unrevealing that no reason exists to presume the encounter affected Ms. Chamberlain’s ability to assess the detective’s credibility.” However, the Pike rule is concerned not only with the biasing influence on the juror herself, but also with the “deleterious effect upon the judicial process because of the appearance of impropriety.” 712 P.2d at 280. Further, not only the subject matter, but also the scope of the conversation, are irrelevant in determining whether the presumption of prejudice attaches. See Logan City v. Carlsen, 799 P.2d 224, 227 (Utah Ct.App.1990).

¶ 15 Once the presumption of prejudice attaches, as it does here, the burden shifts to the State “to prove that the unauthorized contact did not influence the juror.” Pike, 712 P.2d at 280. The presumption will not be rebutted by the juror’s own testimony that she was not influenced by the contact, see id., because “improper contacts may influence a juror in ways he or she may not even be able to recognize.” Id.; see also State v. Swain, 835 P.2d 1009, 1011 (Utah Ct.App.1992) (“[MJere denial of prejudice by the tainted juror is ... insufficient to overcome the presumption of prejudice.”).

¶ 16 However, not only did the trial court not inquire of Juror Chamberlain whether the conversation made her more likely to consider Detective Beesley’s testimony more credible, it made no inquiry at all about the effect of the conversation on the outcome of the trial because it had already erroneously determined that no presumption of prejudice attached. The State offered no evidence dispelling the presumed prejudice, and even on appeal the State cites to nothing in the record that would counter the prejudice that presumptively arose out of the conversation. It cites instead to general comments Juror Chamberlain made during voir dire indicating her impartiality. These general statements are doubly unavailing because, not only do a juror’s statements of impartiality not successfully rebut the presumption of prejudice, but also these particular statements of impartiality were made before, and not in response to, specific allegations of improper contact.

¶ 17 The State cites to State v. Larocco, 742 P.2d 89 (Utah Ct.App.1987), rev’d on other grounds, 794 P.2d 460 (Utah 1990), for the proposition that the presumption of prejudice was rebutted in this case. In Larocco, we held that the trial court “reasonably determined that the [Sjtate had sustained its burden of demonstrating that no prejudice against defendant resulted from the [improper] contact.” Id. at 96. This determination was not based on the content or scope of the improper contact itself, but rather on the basis that

(1) the juror stated she was not influenced by the contact; (2) [the witness] was not a key witness nor in such a respected position that he would likely be influential; and most importantly, (3) the testimony presented at trial by police officers was uncontroverted, so that their credibility was not an issue.

Id. The first of these reasons appears to be against the clear weight of authority in Utah, because subsequent cases have held that the juror’s own denials of bias are inadequate to overcome the presumption of prejudice. See Swain, 835 P.2d at 1011.

¶ 18 The final two reasons cited in Larocco, however, may still have precedential value. The witness in Larocco was not a key witness or likely to be influential, and his testimony was virtually uncontroverted so that his credibility was not an issue. Thus, although the presumption of prejudice attached, the witness’s minimal involvement in the prosecution rendered it extremely unlikely to have affected the defendant’s rights. Had the witness played a larger role in the prosecution, or had the witness’s testimony played a small but critical and controverted role, any juror bias in favor of that witness would have made a difference in the outcome of the trial.

¶ 19 In this case, however, the witness who improperly conversed with a juror was not a relatively unimportant and uncontroverted piece of the prosecution’s case. He was, in fact, a key witness with case management responsibilities. Thus, we cannot apply Lar-occo to determine that the State successfully rebutted the presumption of prejudice. In fact, Larocco actually strengthens Shipp’s argument that he was prejudiced by the improper contact by placing Detective Beesley in the category of witnesses who may significantly affect the outcome of the trial.

CONCLUSION

¶ 20 The State did not successfully rebut the presumption of prejudice. Accordingly, given the clear case law on point, we have no choice but to “conclude that the trial court abused its discretion in denying [Shipp’s] motion for a mistrial. We therefore reverse [Shipp’s] conviction and remand for a new trial.” Swain, 835 P.2d at 1011.

¶ 21 WE CONCUR: PAMELA T. GREENWOOD and GREGORY K. ORME, Judges.

      . Shipp also brought other challenges to his convictions, but we decline to address them because the improper juror contact is dispositive.


source: Caselaw Access Project

author: GREENWOOD, Judge:

license: Public Domain

text:
    2004 UT App 37
    Joye VAN DYKE, Petitioner and Appellee, v. Wesley G. VAN DYKE, Respondent and Appellant.
    No. 20020871-CA.
    Court of Appeals of Utah.
    Feb. 20, 2004.

      Stephen I. Oda, Layton, for Appellant.
    Denise P. Larkin, Patterson Barking Thompson & Larkin,. Ogden, for Appellee.
    Before Judges DAVIS, GREENWOOD, and THORNE, Jr.
   OPINION

GREENWOOD, Judge:

¶ 1 Wesley Van Dyke (Husband) appeals from the trial court’s decision to partially grant Joye Van Dyke’s (Wife) Verified Petition to Modify Decree of Divorce and extend Husband’s alimony payments for the length of the parties’ marriage. Husband argues that Wife’s chronic health problems, which formed the basis for the trial court’s ruling, were foreseeable at the time of the parties’ divorce decree and did not meet the definition of extenuating circumstances as set forth in the statute governing the modification of alimony. Husband also claims that because the trial court previously determined that the injuries Wife sustained in a post-divorce automobile accident did not constitute a substantial change in circumstances, her petition for increased alimony was barred under the doctrine of res judicata. Finally, Husband maintains that the trial court incorrectly determined that his annual income had nearly doubled since the parties’ divorce. We remand for further proceedings.

BACKGROUND

¶ 2 Husband and wife divorced on July 22, 1992, following a sixteen-year marriage. At the time of the divorce, both parties were employed, with Wife earning approximately $1,000 per month and Husband earning approximately $2,602 per month. Under the terms of a stipulated divorce decree, Husband agreed to pay Wife monthly alimony in the amount of $500 for a period of eight years.

¶ 3 In 1993, Wife petitioned the trial court for an increase in monthly alimony of $200 to cover a monthly medical insurance premium. During the hearing on her petition, Wife testified that she was involved in an automobile accident in 1993, which she claimed left her unable to perform her duties as a real estate agent for a period of six months. The trial court denied the petition, concluding that there had been “no substantial change contemplated under the law.”

¶ 4 In 1997, Wife filed a claim for Disability Insurance benefits. Although her application was initially denied, an Administrative Law Judge (ALJ) concluded in 1999 that Wife was unable to work because she was “under a disability, as that term is defined in the Social Security Act and regulations.” According to the ALJ, the medical evidence established that Wife suffered from “depression, post traumatic stress disorder, degenerative disc disease and bilateral carpal tunnel” and that she was entitled to disability benefits from May 5,1997 until at least March 31, 2000.

¶ 5 In September of 1999, Wife again petitioned the trial court for an increase in alimony. The basis for the petition was that Wife was no longer able to work either part-time or full-time as a result of her disability and that this amounted to a “substantial and material change.” A hearing was held on May 30, 2002, in which Wife testified about her disability and her inability to support herself. Husband’s testimony focused primarily on his current income and living expenses. According to Husband, his annual income was approximately $50,000, while that of his current wife was approximately $9,000.

¶ 6 On August 22, 2002, the trial court issued a memorandum decision in which it made the following finding regarding Wife’s disability:

The disability has arisen as a result of a combination of factors unrelated to any action on [Husband’s] part. Those factors appear to be related to two auto accidents, a bilateral carpal tunnel syndrome, and some unresolved emotional difficulties which probably existed at the time of the marriage, but which were most probably exacerbated by subsequent events. There was also reference in the Administrative Law Judge’s findings to a degenerative disc condition.

The court concluded that based on Wife’s disability and her “very limited income from a federal disability pension,” she had “a real need for continuing support from [Husband].”

¶ 7 With respect to Husband’s ability to continue to pay alimony, the trial court found that “[Husband’s] income ha[d] nearly doubled in the intervening years since the divorce.” While the court acknowledged that Husband “had assumed additional responsibility for a new family,” it concluded that Husband “should be able to pay continuing alimony of $400 a month” (a $100 a month reduction). Accordingly, the trial court ordered “the alimony to extend for a period of the duration of the marriage,” which the court calculated to be eight years and three months.

¶ 8 Approximately one month later, Husband filed a Motion for New Trial, Relief from Judgment, and for Formal Findings of Fact and Conclusions of Law. The trial court denied this motion and Husband timely filed his notice of appeal. A few days later, the trial court entered an order requiring Husband to pay alimony in the amount of $400 a month, as of July 2000, for a period of eight years and three months.

STANDARD OF REVIEW

¶ 9 The determination to modify a divorce decree is generally reviewed under an abuse of discretion standard. See Kelley v. Kelley, 2000 UT App 236,¶ 20, 9 P.3d 171. However, “[questions about the legal adequacy of findings of fact and the legal accuracy of the trial court’s statements present issues of law, which we review for correctness, according no deference to the trial court.” In re C.K, 2000 UT App 11,¶ 17, 996 P.2d 1059.

ANALYSIS

I. The Trial Court’s Basis for Modifying the Alimony Award

¶ 10 Citing Utah Code Annotated section 30-3-5(7)(g)(i)-(ii) (1998), Husband first argues that because Wife’s medical conditions and injuries existed prior to the parties’ divorce, they did not amount to either non-foreseeable or extenuating circumstances that would justify a modification of the earlier alimony award. Section 30 — 3—5(7)(g)(i) provides that “[t]he court has continuing jurisdiction to make substantive changes and new orders regarding alimony based on a substantial material change in circumstances not foreseeable at the time of the divorce.” Utah Code Ann. § 30-3-5(7)(g)(i) (1998). Section 30 — 3—5(7)(g)(ii) provides that “[t]he court may not modify alimony or issue a new order for alimony to address needs of the recipient that did not exist at the time the decree was entered, unless the court finds extenuating circumstances that justify that action.” Id. § 30-3-5(7)(g)(ii) (1998). Thus, a trial court may modify an alimony order if both section 30 — 3—5(7)(g)(i) and section 30-3-5(7)(g)(ii) are satisfied.

¶ 11 In its findings, the trial court did not address whether there had been a “substantial material change of circumstances not foreseeable at the time of divorce,” nor did it identify what these circumstances were. Id. § 3 0 — 3—5(7) (g) (i). Furthermore, the trial court failed to consider whether there were “extenuating circumstances” that justified extending alimony beyond the period set forth in the divorce decree. Id. § 30-3-5(7)(g)(ii). Instead, the court apparently based its ruling on its finding that Wife suffered from a permanent disability arising from factors that “appear[ed] to be related to two auto accidents, a bilateral carpal tunnel syndrome, and some unresolved emotional difficulties which probably existed at the time of the marriage, but which were most probably exacerbated by subsequent events.”

V12 Based on such a limited finding, it is impossible to assess the validity of Husband’s claims on appeal. This court has declared that the findings in modification proceedings “should be more than cursory statements; they must be sufficiently detailed and include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached.” Williamson v. Williamson, 1999 UT App 219,¶ 9, 983 P.2d 1103 (quotations and citations omitted). In interpreting section 30 — 3—5(7)(g)(i), we have noted that “[bjefore the trial court can modify a divorce decree, it must find that there has been a ‘substantial material change in circumstances not foreseeable at the time of the divorce.’ ” Williamson, 1999 UT App 219 at ¶ 8, 983 P.2d 1103 (emphasis added) (footnote omitted) (quoting Utah Code Ann. § 30-3-5(7)(g)(i)); see also Moon v. Moon, 1999 UT App 12,¶ 27, 973 P.2d 431. Similarly, although no Utah court has considered what constitutes “extenuating circumstances” as the term is used in section 30 — 3—5(7)(g)(ii), this court has held that under Utah Code Annotated section 30 — 3—5(7)(h) (1998), a trial court “must explicitly make a finding of ‘extenuating circumstances’ ” before alimony can be extended beyond the period of the marriage. Rehn v. Rehn, 1999 UT App 41,¶ 14, 974 P.2d 306; see also Kelley v. Kelley, 2000 UT App 236,¶ 28, 9 P.3d 171.

¶ 13 In this ease, it is clear that the trial court failed to adequately comply with either section 30 — 3—5(7)(g)(i) or section 30-3-5(7)(g)(ii). Accordingly, we remand for the entry of further findings explicitly addressing the requirements of these provisions. That is, the trial court should consider whether there is evidence of a “substantial material change of circumstances not foreseeable at the time of divorce,” Utah Code Ann. § 30-3-5(7)(g)(i), and whether there is evidence of “extenuating circumstances” justifying the modification of the alimony award. Utah Code Ann. § 30 — 3—5(7)(g)(ii). The trial court should also specifically identify those circumstances.

II. The Applicability of the Doctrine of Res Judicata

¶ 14 Husband also argues that because the trial court determined in 1994 that the injuries Wife sustained in a post-divorce automobile accident did not amount to a substantial change, her petition for increased alimony is barred under the doctrine of res judicata. Because Husband has failed to adequately brief this argument, we decline to review it.

¶ 15 When determining whether an argument has been adequately briefed, “we look to the standard set forth in rule 24(a)(9) of the Utah Rules of Appellate Procedure.” State v. Thomas, 961 P.2d 299, 305 (Utah 1998). This rule provides, in part, that the appellant’s “argument shall contain the contentions and reasons of the appellant with respect to the issues presented ... with citations to the authorities, statutes and parts of the record relied on.” Utah R.App. P. 24(a)(9). “Implicitly, rule 24(a)(9) requires not just bald citation to authority but development of that authority and reasoned analysis based on that authority.” Thomas, 961 P.2d at 305.

¶ 16 Here, Husband has only cited one case, Jense v. Tense, 784 P.2d 1249 (Utah Ct.App.1989), to support his res judicata argument. Tense involved a dispute over a property settlement that was set forth in a divorce decree and only stands for the general proposition that, absent compelling reasons, parties should be able to rely on the finality of a divorce decree. See id. at 1253. It has little relevance to the facts of this case. We therefore decline to address Husband’s res judicata argument because it has not been adequately briefed.

CONCLUSION

¶ 17 Prior to modifying the alimony award, the trial court failed to consider whether there had been a “substantial material change in circumstances not foreseeable at the time of the divorce.” Utah Code Ann. § 30-3-5(7)(g)(i). The trial court also failed to determine whether there were extenuating circumstances” justifying the modification of the alimony award. Utah Code Ann. § 30-3-5(7)(g)(ii). Accordingly, we remand to the trial court to enter further findings regarding the requirements set forth in each of these provisions. Furthermore, we decline to consider Husband’s argument that Wife’s petition to modify the alimony award is barred under the doctrine of res judicata because the argument was not adequately briefed.

¶ 18 WE CONCUR: JAMES Z. DAVIS and WILLIAM A. THORNE JR., Judges.

      . The 2003 version of this statute renumbered this provision as Utah Code Annotated section 30 — 3—5(8)(g)(i) (Supp.2003). However, for purposes of consistency we will refer to the 1998 version of the statute.

      . The 2003 version of this statute renumbered this provision as Utah Code Annotated section 30 — 3—5(8)(g)(ii) (Supp.2003). However, for purposes of consistency we will refer to the 1998 version of the statute.

      . Utah Code Annotated section 30-3-5(7)(h) (1998) provides that "[a]limony may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time prior to termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time." Id. The 2003 version of this statute renumbered this provision as Utah Code Annotated section 30 — 3—5(8)(h) (Supp.2003).

      . Only once has a Utah court considered the meaning of "extenuating circumstances” in the context of an alimony proceeding. See Kelley v. Kelley, 2003 UT App 317, 79 P.3d 428. In Kelley, this court held that a couple's decision to live together as husband and wife after their divorce constituted an extenuating circumstance under Utah Code Annotated section 30-3-5(7)(h) (1998), thereby allowing alimony payments to extend beyond the period of the parties' marriage. See Kelley, 2003 UT App 317 at ¶¶ 6-7, 79 P.3d 428. While the holding in Kelley provides little guidance on what would constitute extenuating circumstances in the instant case. Judge Davis noted in his dissent that "a more typical extenuating circumstance is one which implicates the physical health, mental health, or well-being of a spouse.” See id. at ¶ 15 (Davis, J., dissenting).

      .Because Husband specifically challenges the trial court's finding that his income nearly doubled since the parties' divorce, the trial court should also set forth, in detail, the evidence upon which this finding was based. The court should also clarify whether it included Husband’s new wife's income in its calculation.

      . In so ruling, we do not determine the effect, if any, of the accident on the modification analysis on remand.


author: DAVIS, Judge:

text:
    2004 UT App 33
    Debra YOUREN, Plaintiff and Appellant, v. TINTIC SCHOOL DISTRICT, Patricia Hunter-Rowse, and Ed Alder, Defendants and Appellees.
    No. 20021044-CA.
    Court of Appeals of Utah.
    Feb. 20, 2004.

      Loren M. Lambert, Midvale, for Appellant.
    Mark L. Shurtleff, Atty. Gen., Moms 0. Haggerty, and Brent A. Burnett, Asst. Attys. Gen., Salt Lake City, for Appellees.
    Before BILLINGS, P.J., DAVIS, and ORME, JJ.
   MEMORANDUM DECISION

DAVIS, Judge:

¶ 1 Debra Youren appeals a trial court order dismissing both causes of action in her complaint with prejudice. We affirm.

¶ 2 Youren argues that the trial court erred by dismissing her first cause of action under the claim preclusion branch of res judicata. “The doctrine of res judicata serves the important policy of preventing previously litigated issues from being reliti-gated. Res judicata encompasses two distinct doctrines: claim preclusion and issue preclusion.” Miller v. USAA Cas. Ins. Co., 2002 UT 6,¶ 57, 44 P.3d 663 (quotations and citations omitted). Claim preclusion will bar Youren’s fust cause of action if three elements are satisfied.

First, both cases must involve the same parties or their privies. Second, the claim that is alleged to be barred must have been presented in the first suit or must be one that could and should have been raised in the first action. Third, the first suit must have resulted in a final judgment on the merits.

Macris & Assocs. v. Neways, Inc., 2000 UT 93,¶ 20, 16 P.3d 1214 (quotations and citations omitted). “All three elements must be established for claim preclusion to apply.” Miller, 2002 UT 6 at ¶58, 44 P.3d 663.

¶ 3 Youren concedes that the first element is satisfied. Under the second element, Youren’s “claim that is alleged to be barred must have been presented in the first suit or must be one that could and should have been raised in the first action.” Macris & Assocs., 2000 UT 93 at ¶ 20, 16 P.3d 1214 (emphasis added) (quotations and citations omitted). In several portions of her brief, Youren admits that she “could have” brought her first cause of action in the prior suit. Further, she should have brought it in the prior suit because it is based upon the same set of operative facts alleged in that suit. Therefore, the second element is satisfied. The third element, which requires that “the first suit must have resulted in a final judgment on the merits,” is also satisfied. Id (quotations and citations omitted). The fact that a portion of the final judgment in the prior suit is pending appeal does not affect the finality of the judgment for purposes of res judicata. See Copper State Thrift & Loan v. Bruno, 735 P.2d 387, 390 (Utah Ct.App.1987) (“A judgment or order, once rendered, is final for purposes of res judicata until reversed on appeal or modified or set aside in the court of rendition.”). Because all three elements are satisfied, we conclude that the trial court properly dismissed Your-en’s first cause of action under the claim preclusion branch of res judicata.

¶ 4 Youren also argues that the trial court erred by dismissing her second cause of action based upon its determination that Utah’s anti-nepotism statutes do not create a private right of action. See Utah Code Ann. §§ 52-3-1 to^I (2002). When a statute makes certain acts unlawful and provides criminal penalties for such acts, but does not specifically provide for a private right of action, we generally will not create such a private right of action. See Milliner v. Elmer Fox & Co., 529 P.2d 806, 808 (Utah 1974) (refusing to create private right of action where a criminal statute did not provide for private right of action, stating that was “a matter best left to the legislature”); Broadbent v. Board of Educ., 910 P.2d 1274, 1278 (Utah Ct.App.1996) (stating that “the courts of this state are not generally in the habit of implying a private right of action based upon state law, absent some specific direction from the [l]egislature”); Richards Irrigation Co. v. Karren, 880 P.2d 6, 11 (Utah Ct.App.1994) (holding that trial court did not err by dismissing party’s claims where statute and constitutional provision upon which claims were based did not “create a private right of action, but merely provide[ed] for criminal remedies”). Utah’s anti-nepotism statutes do not specifically provide for a private right of action, but instead provide a criminal penalty for any violation of their provisions. See Utah Code Ann. § 52-3-3 (“Any person violating any of the provisions of this chapter is guilty of a misdemeanor.”). Accordingly, we refuse to create a private right of action under Utah’s anti-nepotism statutes when the legislature has not seen fit to do so. Therefore, we conclude that the trial court did not err by dismissing Youren’s second cause of action based upon its determination that Utah’s anti-nepotism statutes do not create a private right of action.

¶ 5 We affirm the trial court’s order dismissing all causes of action in Youren’s complaint with prejudice.

¶ 6 WE CONCUR: JUDITH M. BILLINGS, Presiding Judge, GREGORY K. ORME, Judge.

      . An opinion recently issued by this court establishes that the federal common law of res judica-ta should be applied to determine the preclusive effect of a federal judgment in Utah state courts. See Massey v. Board of Trs., 2004 UT App 27,- ¶¶ 6-7, 86 P.3d 120. Although this is the exact circumstance we are faced with in this case, we apply the Utah common law of res judicata for several reasons. First, both parties submitted their briefs prior to the issuance of Massey and both parties based their arguments on this issue upon the Utah common law of res judicata. Second, the legal analysis under the claim preclusion branch of res judicata in the Utah common law is virtually identical to that in the federal common law. Compare Yapp v. Excel Corp., 186 F.3d 1222, 1226 (10th Cir.1999), with Macris & Assocs. v. Neways, Inc., 2000 UT 93,¶ 20, 16 P.3d 1214. Finally, our ultimate conclusion on this issue would be the same if we applied the federal common law of res judicata. As noted by the Massey court, a court's conclusion on the issue of res judicata will usually be the same regardless of whether the Utah common law of res judicata or the federal common law of res judicata is applied. See Massey, 2004 UT App 27 at ¶ 7, 86 P.3d 120.

      . We recognize the split in Utah case law on the general issue of the finality of judgments pending appeal and conclude that the better approach is that taken by the more recent Utah cases, which hold that a rendered judgment is final for purposes of res judicata until reversed on appeal, modified by the rendering court, or set aside by the rendering court. See, e.g., Copper State Thrift & Loan v. Bruno, 735 P.2d 387, 390 (Utah Ct.App.1987); see also, Restatement (Second) of Judgments § 13 cmt. f (1982) ("There have been differences of opinion about whether, or in what circumstances, a judgment can be considered final for purposes of res judicata when proceedings have been taken to reverse or modify it by appeal. The better view is that a judgment otherwise final remains so despite the taking of an appeal unless what is called an appeal actually consists of a trial de novo; finality is not affected by the fact that the taking of the appeal operates automatically as a stay or supersedeas of the judgment appealed from that prevents its execution or enforcement, or by the fact that the appellant has actually obtained a stay or superse-deas pending appeal.").

      . Youren raises other issues in her brief, but we do not address them because the issues we have addressed are dispositive of her appeal.


author: HILL, Chief Justice.

text:
    2004 WY 27
    Jim CHANCLER, d/b/a Lone Wolf Construction, Appellant (Plaintiff), v. Vicki L. MEREDITH, Appellee (Defendant).
    No. 03-92.
    Supreme Court of Wyoming.
    March 22, 2004.
    Representing Appellant: Jody L. Chance, Law Office of Jody Chance, Jackson, Wyoming.
    Representing Appellee: William P. Schwartz of Ranck & Schwartz, Jackson, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

[¶ 1] Appellant, Jim Chancier, d/b/a Lone Wolf Construction (Lone Wolf), seeks review of a judgment of the district court that was entered after a trial to the court. In that judgment, Appellee, Vicki L. Meredith (Meredith), was awarded damages arising out of a contract dispute involving the remodeling of her home. Lone Wolf contends that the district court erred in finding it breached the warranty contained in the construction contract, erred in finding that Lone Wolf had abandoned the job, erred in failing to properly consider Meredith’s writing wherein she conceded she owed Lone Wolf the contractor’s fee, abused its discretion by making an award of architect fees, and erred in awarding the cost of repairs to Meredith. Meredith defends the appeal on the basis that Lone Wolf failed to cause a transcript of the trial proceedings to be prepared and, under the applicable standard of review, this Court is compelled to affirm the district court and award her costs, attorney’s fees, and a penalty because there is no reasonable cause for Lone Wolfs appeal. We will affirm and award Meredith her costs on appeal and attorney’s fees.

ISSUES

[¶2] Lone Wolf poses these issues for our consideration:

1. Did the district court err in finding that Lone Wolf breached the warranty that the work and materials supplied by him would be free of defects?
2. Did the district court err in finding that Lone Wolf had abandoned the job?
3. Did the district court err in not considering that Meredith had signed a document stating she owed Lone Wolf the contractor’s fee?
4. Was the district court’s award of architect fees an abuse of discretion?
5. Did the district court err in awarding the cost of any repairs to Meredith?

Meredith does not address the issues submitted by Lone Wolf. Instead she contends that because there is no record of the trial proceedings, there is no basis for this Court to substitute its judgment for that of the trial court. In addition, she asserts that the appeal is without merit because there is no record, thus entitling her to an award of costs, attorney’s fees, and a penalty under W.R.A.P. 10.05.

FACTS AND PROCEEDINGS

[¶ 3] From the record we are able to discern the following things. Lone Wolf filed a complaint in the district court on November 29, 2000, alleging breach of contract, or a quasi contract, and seeking damages in the amount of $16,438.00. A copy of the contract was admitted at trial, and it is in the record. On December 15, 2000, Meredith filed an answer and counterclaim essentially denying all of the allegations of the complaint and seeking damages in an unspecified amount for breach of contract and/or negligence. Lone Wolf answered the counterclaim on January 3, 2001. On March 12, 2003, the district court entered its judgment reciting that the trial was held on February 18, 2003, enumerating its finding of facts in favor of Meredith, and awarding her a judgment for $17,172.64. The record also contains a note written by Meredith, with no specific addressee on it, stating: “I promise to pay the general contractor’s fee less deductibles that have arisen during construction.” The note is dated February 14, 2000. In addition, the record contains 40 pages of otherwise unexplained pictorial and documentary exhibits that were admitted in evidence during the trial.

[¶ 4] In its brief, Lone Wolf sets out its version of what transpired at trial. As an initial step in our analysis we will note that W.R.A.P. 7.01(e)(2) requires that an appellant include in its brief “[a] statement of the facts relevant to the issues presented for review with appropriate references to documents listed in the index of the transmitted record.” In circumstances where trial errors are raised as issues, one of those documents will customarily be a transcript of the trial proceedings, or some alternative substitute for the transcript, such as a statement of evidence or proceedings where no transcript is available. See W.R.A.P. 3.01 — 3.04. In this case, we have no transcript or any substitute for the transcript.

STANDARD OF REVIEW

[¶ 5] The applicable standard of review has been summarized as follows:

In the record on appeal, there is no transcript from the damages phase of the trial. It is the appellant’s burden to bring us a complete record on which to base a decision. Ahearn v. Ahearn, 993 P.2d 942, 949 (Wyo.1999); Stadtfeld v. Stadtfeld, 920 P.2d 662, 663 (Wyo.1996). When no transcript has been made of trial proceedings, this court accepts the trial court’s findings as being the only basis for deciding the issues which pertain to the evidence. Willowbrook Ranch, Inc. v. Nugget Exploration, Inc., 896 P.2d 769, 771 (Wyo.1995); Armstrong v. Pickett, 865 P.2d 49, 50 (Wyo.1993). In the absence of anything to refute them, we will sustain the trial court’s findings, and we assume that the evidence presented was sufficient to support those findings. Willowbrook Ranch, Inc. v. Nugget Exploration, Inc., 896 P.2d at 771; Osborn v. Pine Mountain Ranch, 766 P.2d 1165, 1167 (Wyo.1989). Here, because there is nothing in the record to refute the district court’s finding on damages, we affirm the award of damages.

G.C.I. Inc. v. Haught, 7 P.3d 906, 911 (Wyo.2000); also see Dobson v. Stahla, 2003 WY 6N, ¶ 8, 63 P.3d 209, ¶ 8 (Wyo.2003).

DISCUSSION

[¶ 6] Our thorough examination of Lone Wolfs brief discloses that all of its contentions rely upon the facts of this case as they were presented to the district court at trial. Therefore, the standard of review mandates that we affirm the district court’s judgment.

Costs, Attorney’s Fees, and Penalty

[¶ 7] Because of Lone Wolfs failings in this appeal, Meredith asks that we invoke the provisions of W.R.A.P. 10.05 (costs and penalties on affirmance), which provide this guidance:

If the judgment or appealable order is affirmed in a civil case, appellee shall recover the cost for publication of the brief with the cost to be computed at the rate allowed by law for making the transcript of the evidence. If the court certifies there was no reasonable cause for the appeal, a reasonable amount for attorneys’ fees and damages to the appellee shall be fixed by the appellate court and taxed as part of the costs in the case. The amount for attorneys’ fees shall not be less than one hundred dollars ($100.00) nor more than five thousand dollars ($5,000.00). The amount for damages to the appellee shall not exceed two thousand dollars ($2,000.00).

[¶ 8] Because there is no transcript, there is no reasonable cause for Lone Wolfs appeal, and we so certify. Meredith attached to her brief an affidavit from her attorney avowing that her costs on appeal were $41.95 and that her attorney’s fees were $1,700.00 (ten hours x $170.00 per hour). We conclude that these costs and attorney’s fees are reasonable and award them to Meredith. Meredith also asks that we award damages (penalties). Meredith does not set out any basis for damages, or penalties, other than her costs and attorney’s fees. Thus, we conclude that damages or penalties are unnecessary because the award of costs and attorney’s fees fully vindicates this Court’s interest in enforcing the rules of appellate procedure.

CONCLUSION

[¶ 9] The district court’s judgment is affirmed. Meredith is awarded costs in the amount of $41.95 and attorney’s fees of $1,700.00 (total $1,741.95) and judgment is entered to that effect.


author: KITE, Justice.

text:
    2004 WY 29
    Ron BIXLER, Appellant (Plaintiff), v. ORO MANAGEMENT, L.L.C.; and Brad Hyde and Zane Pasma, Appellees (Defendants).
    No. 03-44.
    Supreme Court of Wyoming.
    March 24, 2004.

      Representing Appellant: Kenneth S. Cohen, Jackson, Wyoming.
    Representing Appellees: Richard Mathey, Green River, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[¶ 1] Ron Bixler and Oro Management, LLC, (Oro) purchased property jointly and received a warranty deed as tenants in common. When Mr. Bixler sought partition of the property, Oro claimed the parties had a prior agreement that Mr. Bixler’s tenancy in common did not extend to the mineral estate. The district court granted partial summary judgment in favor of Oro holding the prior agreement, which preceded the warranty deed, was determinative of the parties’ interests. However, the district court also held that agreement was ambiguous regarding what the parties intended by a “net mineral interest.” After a trial on that issue, the district court held Mr. Bixler was only entitled to partition of the surface and gravel rights, and not the mineral estate. We reverse.

ISSUES

[¶ 2] Mr. Bixler frames the issues on appeal as follows:

1. Did the district court correctly rule on summary judgment that the parties’ respective interests in the Atlantic City property were controlled by the earlier unrecorded napkin agreement rather than the subsequent recorded warranty deed?
2. Did the district court err in finding that the napkin agreement was sufficiently definite to constitute an enforceable contract?
3. Did the district court correctly interpret the napkin agreement provision that Plaintiffs interest in the Atlantic City property “... will consist of 50 percent of [the] property which will be held in [tenants] in [common] and he is to receive ... 25 [percent] of the net mineral rights” to mean that Plaintiff does not own an undivided fifty percent interest in the mineral estate, and that he has no possessory interest in the minerals?

[¶ 3] Pursuant to Rule 7.02 of the Wyoming Rules of Appellate Procedure, Oro presents no issues on appeal and, instead, addresses the issues raised by Mr. Bixler.

FACTS

[¶ 4] In March 1999, Mr. Bixler and Zane Pasma, a member of Oro, met to discuss the joint purchase of 1700 acres of land in Atlantic City, Wyoming. The property included mining claims which the parties were interested in developing for gold. On April 25, 1999, Mr. Bixler and Mr. Pasma met again, this time in Rock Springs, Wyoming, to further discuss the purchase. Mr. Bixler’s mother, Charlene Bixler, was present at the meeting and served as the “note taker.” The parties referred to Ms. Bixler’s notes as the “napkin agreement.” The hand-written napkin agreement was signed by both parties and stated:

An agreement between Zane J. Pasma doing business as Oro Management, LLC Company, not registered with state of Wyoming
Ron Bixlers part of this agreement in monies is the price of $365,000 thousand will consist of 50 % percent of property which will be held in [tenants] in [common] and he is to receive (40) forty percent of the gravel and 25 percent of the net mineral rights
Mineral rights are to include load claims, placer material, stock piles and any other [pertinent] material from under or above ground.

[¶ 5] On May 12, 1999, less than one month after the meeting in Rock Springs, the parties accepted and recorded a warranty deed drafted by the seller’s attorney, which conveyed “the following described real estate” to Mr. Bixler and Oro as tenants in common. The legal description of the property consisted of a list of lode and placer mining claims. Both parties testified they intended to have additional documents prepared spelling out the details of their agreement. However, no such documents were ever prepared.

[¶ 6] The parties agreed Oro would be responsible for obtaining all necessary permits to mine the property and assume all costs related to the mining. Oro obtained some equipment and began limited preliminary work on developing a gold mine. However, two years later, Mr. Bixler became dissatisfied with the progress of the project. Also, Mr. Bixler learned that Oro had borrowed its share of the purchase price and encumbered the property with a mortgage to secure the loan. He claimed the mortgage violated the parties’ agreement and damaged his interest in the property.

[¶ 7] On October 3, 2001, Mr. Bixler filed suit against Oro and its members seeking partition of the Atlantic City property. He alleged the parties had agreed that if no income was realized from the property within two years, the property would be sold and the proceeds divided equally between the parties. He also claimed damages for breach of contract and fraud as a result of the mortgage and conversion of gold and other unspecified minerals. Oro answered contending Mr. Bixler had no right to partition and they had agreed that if no income had been realized within five years they would “re-evaluate the highest and last use of the property.” Oro also claimed the mortgage was not improper and no income had been produced from the property. After discovery was concluded, Oro filed a motion for summary judgment contending the parties’ interests in the property were governed by the napkin agreement, and, as it interpreted that agreement, Mr. Bixler had no possesso-ry right to the mineral estate and, thus, no right to partition it as a matter of law. Further, Oro claimed the breach of contract and fraud claims were moot because the mortgage had been released, and no conversion could be claimed because no minerals had been produced. Mr. Bixler filed a motion for partial summary judgment claiming the warranty deed conveyed fifty percent of the surface and mineral estate to him and he was entitled to partition of the property.

[¶ 8] At the summary judgment hearing, Mr. Bixler conceded Oro’s summary judgment motion on the breach of contract, fraud and conversion claims. The district court denied Mr. Bixler’s motion for partial summary judgment on partition concluding the parties’ interests in the property were governed by the napkin agreement and not the warranty deed. The district court determined that the napkin agreement indicated Mr. Bixler had a fifty percent interest in the surface estate, and a forty percent interest in the gravel, and “there is no contention otherwise.” However, the court found the term “net mineral rights” was ambiguous and ordered a trial to determine what the parties intended by the phrase “twenty five percent of the net mineral rights.”

[¶ 9] After two days of testimony concerning the meaning of “net mineral rights,” the district court concluded the parties intended the term to mean Mr. Bixler had the right to receive twenty-five percent of the net revenues from mineral production on the Atlantic City property. The district court reasoned that while the deed created a tenancy in common and the parties’ interests in the property were presumed to be equal, that presumption was successfully rebutted by a prior agreement between the parties that Mr. Bixler held no possessory or ownership interest in the mineral estate. Consequently, the district court held he was not entitled to partition of the minerals. He was entitled, however, to partition of fifty percent of the surface estate and forty percent of the gravel as the district court interpreted the napkin agreement. This appeal followed.

STANDARD OF REVIEW

[¶ 10] Our standard for reviewing summary judgments is as follows:

Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to have a judgment as a matter of law. A genuine issue of material fact exists when a disputed fact, if it were proven, would have the effect of establishing or refuting an essential element of the cause of action or defense which the parties have asserted. We examine the record from the vantage point most favorable to the party who opposed the motion, and we give that party the benefit of all the favorable inferences which may fairly be drawn from the record. We evaluate the propriety of a summary judgment by employing the same standards and by using the same materials as were employed and used by the lower court. We do not accord any deference to the district court’s decision on issues of law.

Connely v. McColloch (In re Estate of Drwenski), 2004 WY 5, ¶ 12, 83 P.3d 457, ¶ 12 (Wyo.2004), quoting Mathewson v. City of Cheyenne, 2003 WY 10, ¶ 4, 61 P.3d 1229, ¶ 4 (Wyo.2003).

[¶ 11] We review a trial court’s conclusions of law de novo. Principal Life Insurance Co. v. Summit Well Service, Inc., 2002 WY 172, ¶ 20, 57 P.3d 1257, ¶ 20 (Wyo.2002). A judge’s factual findings are subject to a broader scope of review than a jury verdict; the appellate court may examine all the properly admissible evidence appearing in the record. We will not disturb the trial court’s findings unless they are clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. Id. Findings of fact of the trial judge can also lose the insulation of the clearly erroneous standard if they are induced by an erroneous view of the law, or contain factual and legal conclusions that reflect the application of an improper legal standard. Shores v. Lindsey, 591 P.2d 895, 899-900 (Wyo.1979).

DISCUSSION

[¶ 12] Mr. Bixler asserts the grantors conveyed the property including the mineral estate, by warranty deed, to him and Oro as tenants in common and parol evidence cannot be considered to contradict the terms of the deed. As a matter of law, Mr. Bixler contends the terms of the napkin agreement merged into the deed and the unambiguous terms of that deed granted him an undivided fifty percent interest in the Atlantic City property including both the surface and mineral estates. Oro concedes the napkin agreement merged into the deed and, pursuant to the well-recognized rule, when a deed conveys property as a tenancy in common, the grantees are presumed to take in equal shares. However, Oro argues this presumption is a rebuttable one and parol evidence can be considered to prove the parties intended a different result.

Merger

[¶ 13] Our review of the district court’s ruling must begin with an analysis of the doctrine of merger. Wyoming law clearly states:

In accordance with contract law generally, all provisions in a contract are merged into the deed when executed and delivered except those covenants which are deemed to be collateral to the sale. Thus, the deed regulates the rights and liabilities of the parties.

Bakken v. Price, 613 P.2d 1222, 1227 (Wyo.1980) (quoting 8A Thompson on Real Property, § 4458, p. 331.) See also Glenrock v. Abadie, 71 Wyo. 414, 259 P.2d 766 (1953). Acceptance of the deed is, prima facie, full performance of the contract to convey. 9 Thompson on Real Property § 82.13(d), p. 676 (1962). It is conclusively presumed that the deed represents the final agreement of the parties. Id.

[¶ 14] Other jurisdictions have likewise applied the doctrine of merger to warranty deeds in similar situations. See Shinn v. Buxton, 154 F.2d 629 (10th Cir.1946); Marino v. Dwyer-Berry Construction, 146 A.D.2d 751, 537 N.Y.S.2d 234 (N.Y.App.Div.1989); In re Jenkins, 74 B.R. 440 (Bankr.N.D.Ga.1987). In Hansen v. Stichting Mayflower Recreational Fonds, 898 F.Supp. 1503, 1515-1516 (C.D.Utah 1995), discussing whether a prior agreement controlled rather than subsequent warranty deeds, the court stated:

It is clear to the court that the three deeds which arose out of the [agreement] are not ambiguous. Their terms are certain and clear, and there are no facial deficiencies or missing terms. By these tests, the parties’ objective intent is certain. Thus, there is no reason to look to either contemporaneous documents such as the escrow instructions and RPI, or to prior documents such as the [Agreement] in order to ascertain the parties’ intent.
Moreover, the merger doctrine would preclude such action, particularly with regard to the Loan Agreement and escrow instructions. Under the merger doctrine, “when the acts to be performed by the seller in a contract relate only to delivery of title to the buyer ... the deed is the final agreement and all prior terms, whether written or verbal, are extinguished and unenforceable. The basis for imposing the doctrine of merger is ‘not due to any peculiar sanctity attaching to the deed itself, but because it is regarded as the final repository of the agreement which led to its execution. When the terms of the deed cover the same subject matter as the antecedent agreement, the deed controls.” Thus, “acceptance of the deed by the buyer manifests his acceptance of [the seller’s] performance even though the estate conveyed may differ from that promised in the antecedent agreement.” Although the merger doctrine may appear to be harsh, it “serves the purpose of ‘preserving the integrity of the final document of conveyance and encouraging the diligence of the parties.’ ”

Id. (emphasis added) (citations omitted). The effect of the doctrine of merger by deed is to substitute the provisions of the deed for all antecedent agreements. See Charles S. Parnell, Annotation, Deed as Superseding or Merging Provisions of Antecedent Contract Imposing Obligations Upon the Vendor, 38 A.L.R.2d 1310 (1954).

[¶ 15] An exception to merger provides that contractual obligations collateral to the transaction may survive closing and be enforced under the contract. Rehnberg v. Hirshberg, 2003 WY 21, ¶ 13, 64 P.3d 115, ¶ 13 (Wyo.2003) (quoting Lawrence Berger, Merger by Deed — What Provisions of a Contract for the Sale of Land Survive the Closing?, 21 Real Estate L.J. 22, 24 (1992)). A collateral obligation is one that is not “deed-related.” Berger, supra, at 32. Deed-related provisions are those concerning “title, possession [and] quantities or emblements of the land.” Rehnberg, 64 P.3d at 119. Clearly, the collateral obligation exception does not apply here where Oro contends the napkin agreement was intended to govern title to the property. Consequently, the terms of the napkin agreement merged into the warranty deed.

Nature of the Interest Created by the Deed

[¶ 16] Application of the doctrine of merger, however, is not the end of the story. We must also interpret the language of the deed to determine the interests owned by Mr. Bixler and Oro. In interpreting a deed, we first examine its terms and give them their plain and ordinary meaning. McGee v. Caballo Coal Co., 2003 WY 68, ¶ 11, 69 P.3d 908, ¶ 11 (Wyo.2003). Plain meaning is that “meaning which [the] language would convey to reasonable persons at the time and place of its use.” Id. We interpret a warranty deed like a contract “from specific language of the deed,” and “begin by looking at the instrument itself.” Glover v. Giraldo, 824 P.2d 552, 554 (Wyo.1992).

[¶ 17] This warranty deed conveyed all “real estate” described in the attached legal description. That description consisted of a list of thirty-four placer and lode mining claims. A placer and lode mining claim is “a parcel of land that contains precious metal in its soil or rock and that is appropriated by a person, according to established rules and customs, known as the process of location”. Black’s Law Dictionary, 1010 (7th ed.1999). The effect of the deed was to convey title to those mining claims to the grantees as tenants in common. The rights that accrue to owners of valid unpat-ented mining claims on public lands filed pursuant to the 1872 Mining Law, 30 U.S.C.A. 21 et seq., include the right of possession and enjoyment of both the surface and the subsurface, which right is enforceable against both third parties and the United States. “Ownership Interests in Valid Unpatented Mining Claims,” American Law of Mining, Ch. 36, § 36.01. Consequently, the conveyance to Mr. Bixler of a tenancy in common in the described mining claims gave him a possessory interest in both the surface and subsurface contained within the claims.

[¶ 18] To construe a deed, a court must consider the intent of the parties gathered from the plain and unambiguous language contained therein. Gasaway v. Reiter, 736 P.2d 749, 751 (Wyo.1987). The general rule is that parol evidence may not contradict, vary, or add to deeds. Schulz v. Miller, 837 P.2d 71, 75 (Wyo.1992); See also Ferdinand S. Tinio, Annotation, The Parol Evidence Rule and Admissibility of Extrinsic Evidence to Establish and Clarify Ambiguity in Written Contract, 40 A.L.R.3d 1384 (2004); Midkiff v. Castle & Cooke, Inc., 45 Haw. 409, 368 P.2d 887 (1962) (there being no ambiguity in the deed as construed, the parol evidence rule applied, and extrinsic evidence of the surrounding facts and circumstances existing prior to, contemporaneously with, and subsequently to the execution of the deed was not competent to contradict, defeat, modify, or otherwise vary the meaning or legal effect of the deed.) The deed to the Atlantic City property is unambiguous. It describes the property conveyed and de-dares the parties take all of such property as tenants in common.

[¶ 19] Tenancy in common is a recognized concept in the law and is undoubtedly the most common type of concurrent estate in land. Roger A. Cunningham, William Stoebuek, Dale Whitman, The Law of Property, § 5.2 at 188 (1993). If the instrument does not specify the shares of each co-tenant, it will be presumed that they take equal undivided interests. However, this presumption may be rebutted by proof that the co-tenants contributed unequal amounts toward the purchase price of the property and there is neither a family relationship among the co-tenants nor any evidence of donative intent on the part of those who contributed more than their pro rata amounts toward the purchase price. Id. at 191. See also 7 Powell on Property § 50.02[5] at 50-51 (2000). This presumption is widely accepted. An Ohio court stated:

“The rule is well established that where two or more persons take as tenants in common under an instrument which is silent in regard to their respective shares, there is a presumption that their shares are equal.” This presumption can be rebutted by the introduction of evidence showing unequal contributions toward the purchase price....

Bien v. Bien, 1999 Ohio App. LEXIS 2942 (citation omitted). See also Gawryluk v. Poynter, 654 N.W.2d 400 (N.D.2002); Reitmeier v. Kalinoski, 631 F.Supp. 565 (D.N.J.1986).

[¶ 20] Oro claims the napkin agreement can be considered, even though it constitutes parol evidence, because it rebuts the presumption that the tenants in common own equal shares of the property. However, a fatal flaw exists in Oro’s reasoning because the napkin agreement is offered not to disprove equal shares owned by the tenants in common, but to prove Mr. Bixler obtained no possessory interest in the mineral estate at all. That premise directly contradicts the terms of the deed which unmistakably conveyed the right of possession of the surface and mineral estate. Parol evidence that directly contradicts the terms of the deed is inadmissible. Schulz, 837 P.2d at 77-78. The district court erred when it relied upon the napkin agreement to determine Mr. Bixler’s possessory interest and to deny partition of the mineral estate. While parol evidence can be considered to rebut the presumption of equal shares, it cannot be relied upon to contradict the deed itself.

[¶ 21] In Schulz, we held that a deed conveying real property to two persons as joint tenants with a right of survivorship defined their interest in the property, and parol evidence could not contradict the terms of the deed. Id. at 75. Schulz sought to introduce parol evidence that he paid the entire purchase price and did not intend that Miller acquire an undivided one-half ownership in the parcel. This Court held the terms of the deed were unambiguous and parol evidence could not be considered to determine the parties’ rights to the property. In the current case, because the deed is unambiguous, the holding in Schulz is particularly applicable. No parol evidence can be considered to determine what property rights were granted because the deed provides the answer.

[¶ 22] As a final note, even if the napkin agreement did not contradict the terms of the deed, we question whether it qualifies as the type of evidence other courts have allowed to rebut the presumption of equal shares as tenants in common. Generally, such rebuttal evidence has been limited to proof of unequal contribution. The Missouri Supreme Court, which recognizes the rebut-table presumption, stated:

“[T]his presumption may be rebutted by proof, e.g., that the co-tenants contributed unequal amounts toward the purchase of the property and there is neither a family relationship among the co-tenants nor any evidence of donative intent on the part of those who contributed more than their pro rata amounts towards the purchase price.”

Christen v. Christen, 38 S.W.3d 488, 492 (Mo.Ct.App.2001) (citation omitted).

[¶ 23] That concept is echoed in Binning v. Miller, 55 Wyo. 478, 102 P.2d 64 (1940), in which we held that “in the absence of an agreement to the contrary, joint purchasers of an estate hold shares therein in proportion to their contribution to the purchase price.” In fact, the bulk of the authority relied upon by Oro to support the use of parol evidence to rebut the presumption of equal shares involved evidence of unequal contribution. However, the record contains no evidence that Mr. Bixler and Oro contributed unequally to the purchase of the property. To the contrary, Mr. Bixler paid $365,000 of the $700,000 purchase price.

CONCLUSION

[¶ 24] As a result of our holding that the napkin agreement does not control the parties’ interests, we need not address Mr. Bix-ler’s arguments that the district court misinterpreted the napkin agreement, or in the alternative, the napkin agreement was insufficiently definite to warrant enforcement. We reverse the district court’s holding that Mr. Bixler had no right to possession of the mineral estate and remand with instructions to enter summary judgment for Mr. Bixler on the issue of partition of his mineral interest.

      . The parties did not challenge the district court’s order of partition of fifty percent of the surface estate and forty percent of the gravel, and, therefore, that order stands and is unaffected by our decision herein.

      . The deed does not indicate whether the claims are patented or unpatented. However, it makes no reference to a mineral survey number and, therefore, we can assume the claims are unpat-ented.

      . However, we do observe the napkin agreement's cryptic, confusing language raises numerous questions, not the least of which includes how Mr. Bixler could have a right to possess a portion of the gravel, but not the minerals, when gravel is considered a mineral on most federal lands. Watt v. Western Nuclear, Inc., 462 U.S. 36, 103 S.Ct. 2218, 76 L.Ed.2d 400, (1983). Also, the napkin agreement appears to be only a bare outline with no reference to various critical terms such as the method of calculation of a "net mineral interest" or whether Oro had any obligation to conduct mining operations at all or within any specific time frame.