text:
    2003 WY 75
    Raymond M. HULSE and Kristina Hulse, f/k/a Kristina Bova, Appellants (Plaintiffs), v. BHJ, INC., Appellee (Defendant).
    No. 02-148.
    Supreme Court of Wyoming.
    June 17, 2003.
    Brad A. Schreiber of Day, Morris & Schreiber, LLP, Belle Fourche, SD; and Michael W. Strain of Morman Law Firm, Stur-gis, SD, Representing Appellants
    James R. Bell of Murane & Bostwick, LLC, Casper, WY, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[¶ 1] This is an appeal from the entry of summary judgment against appellants Raymond M. Hulse and Kristina Hulse (collectively the Hulses) in favor of appellee BHJ, Inc. (BHJ), ruling that the Hulses’ claim of negligence against BHJ is barred by the statute of limitations. We affirm.

ISSUE

[¶ 2] The Hulses’ raise a solitary issue on appeal:

Whether or not the trial court erred as a matter of law granting BHJ’s motion for summary judgment.

FACTS AND HISTORICAL BACKGROUND

[¶ 3] On August 10, 1998, the Hulses filed their complaint surrounding their purchase of a piece of real property. The Hulses alleged breach of contract, negligence, fraud, and bad faith against First American Title Company of Crook County (First American) and negligence and fraud against BHJ, the real estate broker of the selling party. The basis of the complaint stemmed from allegations that there was a failure by First American and BHJ to disclose that the access easement to the property was restricted prohibiting commercial use of the easement.

[¶ 4] In their complaint, the Hulses allege they purchased the property with the intent of conducting commercial business, including an outfitting and hunting business and a bed and breakfast, and that both First American and BHJ were aware of the Hulses’ reasons for purchasing the property. However, subsequent to the purchase, the Hulses learned that sole access to the property was by way of a restricted easement which prohibited commercial use of the easement causing the Hulses to sustain damages.

[¶ 5] Initially, the district court granted summary judgment in favor of both First American and BHJ. Following appeal, this court issued its opinion in Hulse v. First American Title Co. of Crook County, 2001 WY 95, 33 P.3d 122 (Wyo.2001) (hereinafter, Hulse I), upholding the summary judgment ruling as to First American and BHJ, with the exception of summary judgment entered in favor of BHJ on the negligence claim. Specifically, this court remanded the negligence claim asserted against BHJ to the district court for a determination of whether BHJ’s agent, Edward “Amory” Hubbard, exercised the care, skill, and diligence others who are engaged in the profession would ordinarily exercise under similar circumstances in fulfilling the duties imposed upon him by statute. Hulse I, at ¶ 62. In Hulse I, this court also recognized that the claim asserted by the Hulses against BHJ, while labeled “negligent misrepresentation,” essentially asserted a breach of the duty of care owed by real estate professionals to non-client buyers or a “professional negligence” claim as defined under Wyo. Stat. Ann. § 33-28-124 (LexisNexis 2001) and controlled by Wyo. Stat. Ann. § 1-3-107 (LexisNexis 2001). Hulse I, at ¶¶ 51-62.

[¶ 6] On remand, BHJ filed a second motion for summary judgment asserting that the Hulses had failed to timely file their professional negligence claim against BHJ within the applicable two-year statute of limitations called for under Wyo. Stat. Ann. § 1-3-107. Upon review, the district court entered summary judgment in favor of BHJ. This appeal followed.

STANDARD OF REVIEW

[¶ 7] Our standard of review is well established. We recently reiterated this standard of review in the case of Trabing v. Kinko’s, Inc., 2002 WY 171, ¶ 8, 57 P.3d 1248, ¶ 8 (Wyo.2002):

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. Eklund v. PRI Environmental, Inc., 2001 WY 55, ¶ 10, 25 P.3d 511, ¶ 10 (Wyo.2001); see also W.R.C.P. 56(c). 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 that has been asserted by the parties. Williams Gas Processing-Wamsutter Co. v. Union Pacific Resources Co., 2001 WY 57, ¶ 11, 25 P.3d 1064, ¶ 11 (Wyo.2001). 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 favorable inferences that may fairly be drawn from the record. Id. 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. Scherer Constr., LLC v. Hedquist Constr., Inc., 2001 WY 28, ¶ 15, 18 P.3d 645, ¶ 15 (Wyo.2001). We do not accord any deference to the district court’s decisions on issues of law. Id.

DISCUSSION

[¶ 8] The Hulses contend that Wyo. Stat. Ann. §§ 33-28-124 and 1-3-107 refer to the rendering of services and that the rendering of services contemplates a contractual or fiduciary relationship with a client, not a non-client. Therefore, the Hulses reason that because they had no contractual or fiduciary relationship with BHJ, BHJ’s agent, Mr. Hubbard, could not have provided professional services to the Hulses. The Hulses argue that due to the fact that they had no contractual or fiduciary relationship with BHJ, they may only sue BHJ for non-disclosure of the restricted easement under a “negligent misrepresentation” theory defined under Wyo. Stat. Ann. § 33-28-303(e) (Lex-isNexis 2001), which they assert is controlled by Wyo. Stat. Ann. § l-3-105(a)(iv)(C) (Lex-isNexis 2001), affording a four-year statute of limitations. Thus, the Hulses conclude that their negligence claim against BHJ was timely made.

[¶ 9] We begin our analysis by reiterating the language stated in Hulse I. While we recognize that this quotation is somewhat lengthy, we find it instructive. Therein, we stated:

The Hulses appeal the district court’s grant of summary judgment for the defendant BHJ, Inc., a licensed real estate brokerage, for the acts of its agent Amory Hubbard on claims they label negligent misrepresentation and fraud. We take this opportunity to clarify the duties owed by licensed real estate brokers, agents, and salespersons and the causes of action that may arise as a result of an alleged breach of those duties.
The Hulses assert a claim of negligent misrepresentation against defendant BHJ, Inc. citing Restatement (Second) Torts § 552. In Richey v. Patrick, a case involving claims by purchasers of real property against lay sellers, we discussed the tort of negligent misrepresentation as found in the Restatement and stated that in order for there to have been a negligent misrepresentation, the plaintiff must show that
[o]ne who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justiñable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
Richey, 904 P.2d 798, 802 (Wyo.1995).
In Richey, we found that the sellers had not “supplied false information,” as required by the claim, because the sellers had not supplied any information to the purchasers. We said, “[a] nondisclosure of information cannot support a claim of misrepresentation; since nothing has been represented, an essential element of the claim is missing.” Id. at 802 (citing Burman v. Richmond Homes, Ltd., 821 P.2d 913, 919 (Colo.App.1991)). We went on to hold that the crux of the purchasers’ complaint was that the sellers should have informed them of a material fact, they owed a duty to do so, and it was this nondisclosure that caused the plaintiffs damage. In Richey, we then clarified that the appropriate claim was one for negligent nondisclosure as found within Restatement (Second) Torts § 551. However, we declined to apply the Restatement section to the plaintiffs’ claim because we reasoned that the “as is” clause contained within the purchase contract signed by the sellers and purchasers placed the risk of discovery of adverse material facts upon purchasers of real estate. Thus, we recognized the relationship between the parties was essentially contractual and held that when a contract places the burden on the purchaser to discover defects, they are barred from seeking relief for negligent nondisclosure.
Likewise, in our recent case of Snyder v. Lovercheck, we addressed as an issue of first impression whether a purchaser of realty could even bring a claim of negligent misrepresentation, a tort action, against a seller when the relationship between the parties arises in contract. Again, we held that the contractual relationship is controlling. When purchasers of realty sign contracts with disclaimers and merger clauses stating that the purchaser is not relying on the representations of the sellers or then-agents as to the condition of the property, the contract has allocated the risks of loss resulting from the purchaser’s reliance on the seller’s representations to the purchaser. In reasoning to our ultimate conclusion, this court had an extended discussion of the distinction between duties arising by tort and those arising by contract. We said:
Tort law proceeds from a long historical evolution of externally imposed duties and liabilities. Contract law proceeds from an even longer historical evolution of bargained-for duties and liabilities. The careless and unnecessary blanket confusion of tort and contract would undermine the carefully evolved utility of both.
In tort, the legislatures and the courts have set the parameters of social policy and imposed them on individual members of society without their consent. The social policy in the field of contract has been left to the parties themselves to determine, with judicial and legislative intervention tolerated only in the most extreme cases. Where there has been intervention, it has been by the application of well established contract doctrines, most of which focus on threats to the integrity of the bargaining process itself such as fraud or extreme imbalance in bargaining power.
Snyder v. Lovercheck, 992 P.2d at 1087.
As illustrated by our holdings in Richey and Snyder, this court continues to value the freedom to contract between sellers and purchasers of realty. We recognize that the parties to the contract may alio-cate the risks of loss as they so choose. Having done so, absent proof of fraud, we generally allow the unambiguous language found in the parties’ contract to control the scope of subsequent litigation. We have been exceedingly reluctant to introduce tort principles into claims that are essentially contract actions.
However, this court’s jurisprudence reflects that the inverse rule is likewise valid. Contract principles that govern the parties to a contract are not controlling on claims against nonparty professionals whose duties arise in tort. Our precedent reveals a recognition that tort duties and liabilities imposed by the legislatures and courts are supported by underlying social policies which require the imposition of obligations on a defendant to act reasonably for the protection of a plaintiff. By imposing tort duties, courts and legislatures have externally allocated the risks arising from certain relationships for the protection of the public. Having done so, individual parties are limited in shifting those burdens from the obligor to the obligee by private action.
At this point in time, there can be no doubt that licensed professional real estate agents and brokers are a class of persons on whom the law has imposed affirmative tort d u ties. Two decades ago this court stated in Hagar v. Mobley:
Real estate brokers and salesmen are licensed by the State of Wyoming and required to meet high standards of honesty, integrity, trustworthiness and competency. Theirs is a regulated profession. Failure to satisfy those standards is ground for suspension or revocation of a real estate broker’s or salesperson’s license. An act licensing real estate agents must be construed in the light of an obvious purpose of protecting the public in the handling of important and valuable transactions relating to real property. As a result, such an agent does not stand in the same shoes of a lay vendor. Such realtors owe the vendee the same duties of integrity owed the public at large. They must be honest, trustworthy and competent.
Hagar v. Mobley, 638 P.2d 127, 136 (Wyo.1981) (emphasis added and citation omitted). In Hagar, we cited with approval the reasoning of the Utah Supreme Court reversing the dismissal of a claim against a realtor:
In this state, it is apparent that the rule of caveat emptor does not apply to those dealing with a licensed real estate agent. Though not occupying a fiduciary relationship with prospective purchasers, a real estate agent hired by the vendor is expected to be honest, ethical, and competent and is answerable at law for breaches of his or her statutory duty to the public.
Hagar, 638 P.2d at 137 (quoting Dugan v. Jones, 615 P.2d 1239, 1248 (Utah 1980)).
Furthermore, we cited with approval the Montana Supreme Court’s then recent holding that real estate brokers have, like other professionals, certain standards of care which must be satisfied. We said that the Montana court observed that the failure to maintain those standards of skill, competency, and integrity exposes realtors to, in effect malpractice actions. Hagar, 638 P.2d at 137 (citing McCarty v. Lincoln Green, Inc., 190 Mont. 306, 620 P.2d 1221, 1225 (1980)). This court went on to state that we may exact a high standard of care from realtors and held that the standard of care for realtors may be adopted by the court from a legislative enactment. Id. (citing Distad v. Cubin, 633 P.2d 167 (Wyo.1981)). We reiterated:
Realtors, just like doctors, lawyers, engineering consultants, and builders, hold themselves out as professionals; it is their job to know their profession. People rely on and trust them. Failure to comply with either the accepted standards in the field or the standards society is willing to recognize as acceptable, is actionable.
Hagar, 638 P.2d at 138. As to the question of damages, we held “[t]he liability of real estate agents, brokers and salespersons, as in all actions predicated upon the failure to perform some duty, sounds in tort. In tort cases damages are generally awarded in order to compensate claimants for loss. The measure of damages is the amount which will compensate for all the detriment proximately caused by the breach of duty.” Hagar, at 139.
Subsequent to our holding in Hagar, parties have apparently seized on the language within the opinion stating the duty of care as “the broker is liable because of material representations of the principal if he repeats them and knows, or reasonably should know, of their falsity. Liability attaches in this context on grounds of negligence,” id. at 137, and have asserted claims labeled “negligent misrepresentation” against both lay sellers and real estate brokers and agents. “Negligent misrepresentation” and “negligent nondisclosure” are generic tort actions found within the Restatement (Second) ToHs §§ 552 and 551 respectively. These torts have specific elements and, as previously discussed, this court has addressed in various opinions whether to adopt and apply them to claims brought by plaintiffs against sellers of realty and real estate brokers and agents. See Richey v. Patrick, 904 P.2d 798 (Wyo.1995); Snyder v. Lovercheck, 992 P.2d 1079 (Wyo.1999); Sundown, Inc. v. Pearson Real Estate Co., Inc., 8 P.3d 324 (Wyo.2000). We have also addressed the effect of various exculpatory clauses on the above causes of action. At this juncture, we reaffirm all prior holdings and precedent as applied to lay vendors/sellers of real property and their agents or subagents, who are not licensed real estate professionals.
However, notwithstanding any subsequent confusion in formulating, titling, or deciding tort claims against licensed real estate professionals premised upon their duties imposed by statute, it is abundantly clear that Hagar contemplated that the claim was one of professional negligence. This is the holding that we expressly reaffirm by this decision. It is further supported by legislative enactments in 1997 by which the Wyoming Legislature essentially codified the court’s holding in Hagar and went further to expand and clarify the duty of care owed by real estate professionals to parties when acting as seller’s, buyer’s or intermediary agents. See Wyo. Stat. § 33-28-303 (LexisNexis 2001) Seller’s agent engaged by seller; Wyo. Stat. § 33-28-304 (LexisNexis 2001) Agent engaged by buyer; Wyo. Stat. Ann. § 33-28-305 (LexisNexis 2001) Intermediary. The Wyoming Legislature in 2000 adopted Wyo. Stat. § 33-28-124 Act, error or omission in the rendering of real estate services, which provides: “A cause of action arising from an act, error or omission in the rendering of services provided by a licensee under this act shall be brought within the time limits provided under W.S. 1-3-107.” Wyo. Stat. Ann. § 1-3-107 is the statute of limitations for claims of professional negligence. It is applicable to claims arising after the effective date of Wyo. Stat. Ann. § 33-28-124.
As we held in Hagar, the court may adopt from legislative enactment a standard of care for realtors. Id., 638 P.2d at 137. Wyo. Stat. § 33-28-303(c) provides:
“A broker acting as a seller’s agent owes no duty or obligation to the buyer, except that a broker shall disclose to any prospective buyer all adverse material facts actually known by the broker. The adverse material facts may include adverse material facts pertaining to the title and the physical condition of the property, any material defects in the property and any environmental hazards affecting the property which are required by law to be disclosed. The broker acting as a seller’s agent shall not perpetuate a material misrepresentation of the seller which the broker knows or should know is false.”
In Hagar we said that the facts necessary to be disclosed are those that are “pivotal to the transaction from the buyer’s perspective.” Id. at 138 (quoting Tennant v. Lawton, 26 Wash.App. 701, 615 P.2d 1305,1309-1310 (1980)).
Having hereby outlined what law is applicable to the liability of real estate brokers and salespersons, we note that the claims asserted by the plaintiffs, while labeled “negligent misrepresentation,” essentially assert a breach of the duty of care owed by real estate professionals to non-client buyers. However, as a reviewing court, we are not fact finders in the first instance. The district court’s grant of summary judgment did not address the issue of whether BHJ, Inc.’s agent, Hubbard, exercised such care, skill, and diligence as others who are engaged in the profession would ordinarily exercise under similar circumstances in fulfilling the duties imposed upon him by statute. We, therefore, vacate the district court’s grant of summary judgment to BHJ, Inc. on the issue of “negligent misrepresentation” and remand for a determination under the applicable standard consistent with the law we have herein set out.

Hulse, at ¶¶ 51-62 (emphasis added and footnotes omitted).

[¶ 10] We specifically clarified in Hulse I, citing Hagar and other cases as precedent, that an affirmative duty exists on the part of real estate professionals with respect to non-client parties to a real estate transaction. Such duty is imposed as a matter of public policy given the importance of transactions relating to real property. As stated in Richey, at 802, such duty arises in anyone who, in the course of his business, profession, or employment, supplies false information for the guidance of others in their business transactions, if he fails to exercise reasonable care or competence in obtaining or communicating the information. Thus, within the real estate context, brokers and realtors who unquestionably act through their business, profession, or employment owe a buyer, although not in privity in contract with that buyer, duties of integrity, honesty, and competency.

[¶ 11] Accordingly, we do not agree with the Hulses’ argument that because §§ 33-28-124 and 1-3-107 refer to the “rendering of services,” such infers the rendering of professional services requiring a formal contractual or fiduciary relationship with a client and, therefore, these statutes are inapplicable in this instance where the Hulses were not clients of BHJ. To the contrary, we made it clear in Hulse I, (citing in part Hagar, at 137 (quoting Dugan v. Jones, at 1248)), that although no contractual or fiduciary relationship exists with a buyer, a real estate professional hired by the seller is expected to be honest, ethical, and competent and is answerable at law for breaches of that statutory duty to the buyer as a matter of public policy.

[¶ 12] Likewise, we came to this same conclusion in Hulse I with respect to the application of § 33-28-303(c) defining “negligent misrepresentation.” As such, we note that § 33-28-303 is not controlled by the four-year statute of limitations imposed by § l-3-105(a)(iv)(C) but is instead governed by the two-year statute of limitations set forth in § 1-3-107. As stated in Hulse I:

[Notwithstanding any subsequent confusion in formulating, titling, or deciding tort claims against licensed real estate professionals premised upon their duties imposed by statute, it is abundantly clear that Hagar contemplated that the claim was one of professional negligence. This is the holding that we expressly reaffirm by this decision.

Hulse I, at ¶ 60. This statement simply cannot be characterized as obiter dictum as asserted by the Hulses. Rather, this is the established law in Wyoming, as well as the established law of this case. As plainly stated in Hulse I, at ¶¶ 60-62, § 1-3-107 sets forth the statute of limitations for claims of professional negligence after the effective date of § 33-28-124. Claims of professional negligence include those claims asserted under § 33-28-303(c) for “negligent misrepresentation” against real estate professionals by non-client buyers.

[¶ 13] Finally, as indicated above, our holding is consistent with long standing case law authority and enacted statutory mandate established in Wyoming. Hence, argument by the Hulses to the contrary is not well taken. In addition, the Hulses request that we adopt the reasoning in Durbin v. Ross, 276 Mont. 463, 916 P.2d 758 (1996), implying that because the realtors in that case did not represent the buyers there was no professional relationship and, without such a professional relationship, there could be no actionable claim for professional negligence. We, however, decline to do so. As stated above, insofar as the court in Durbin espouses such a rule of law and is not otherwise limited solely to the required expert testimony issue therein particularly addressed, we find such holding to be directly contrary to established Wyoming authority.

CONCLUSION

[¶ 14] Upon our review and analysis, we affirm the action of the district court in granting summary judgment in favor of BHJ and against the Hulses in this action,

      . Wyo. Stat. Ann. § 33-28-124, in applicable part, provides:
      Act, error or omission in the rendering of real estate services.
      A cause of action arising from an act, error or omission in the rendering of services provided by a licensee under this act shall be brought within the time limits provided under W.S. 1-3-107.
      This court recognizes that this statute did not become effective until July 1, 2000. Nevertheless, the Hulses contend that this statute is merely a formal codification of the previous intentions of the legislature.
      Wyo. Stat. Ann. § l-3-107(a)(i) states:
      Act, error or omission in rendering professional or health care services.
      (a) A cause of action arising from an act, error or omission in the rendering of licensed or certified professional or health care services shall be brought within the greater of the following times:
      (i) Within two (2) years of the date of the alleged act, error or omission, except that a cause of action may be instituted not more than two (2) years after discovery of the alleged act, error or omission, if the claimant can establish that the alleged act, error or omission was:
      (A) Not reasonably discoverable within a two (2) year period; or
      (B) The claimant failed to discover the alleged act, error or omission within the two
      (2) year period despite the exercise of due diligence.

      . Wyo. Stat. Ann. §§ 33-28-303(c) and 1-3-105(a)(iv)(C) read as follows, respectively:
      (c) A broker acting as a seller’s agent owes no duty or obligation to the buyer, except that a broker shall disclose to any prospective buyer all adverse material facts actually known by the broker. The adverse material facts may include adverse material facts pertaining to the title and the physical condition of the property, any material defects in the property and any environmental hazards affecting the property which are required by law to be disclosed. The broker acting as a seller's agent shall not perpetuate a material misrepresentation of the seller which the broker knows or should know is false.
      Actions other than recovery of real property, (a) Civil actions other than for the recovery of real property can only be brought within the following periods after the cause of action accrues:

      (iv) Within four (4) years, an action for:

      (C)An injury to the rights of the plaintiff, not arising on contract and not herein enumerated!.]


source: Caselaw Access Project

author: CARPENETI, Justice.

license: Public Domain

text:
    NATIONAL BANK OF ALASKA, Appellant, v. Nancy KETZLER, Personal Representative for Donald Ketzler, Appellee.
    No. S-9945.
    Supreme Court of Alaska.
    June 6, 2003.
    David J. Schmid, Law Offices of David J. Schmid, Anchorage, for Appellant.
    Richard W. Wright, Fairbanks, for Appel-lee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, and CARPENETI, Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

Donald Ketzler executed a deed of trust in favor of the National Bank of Alaska in order to secure a loan. After Donald’s death, his widow Nancy Ketzler moved to have the deed set aside. The superior court ruled in favor of Nancy under AS 34.15.010, setting aside the deed because Nancy did not join in the conveyance and because she brought an action to set the deed aside within the one-year period. National Bank of Alaska appeals the decision of the superior court. Because we uphold the superior court’s interpretation of AS 34.15.010, we affirm.

II. FACTS AND PROCEEDINGS

A. Facts

Nancy and Donald were married in 1975. Beginning in 1976, the couple lived in a house Donald acquired from his father. The Ket-zlers occupied the house as their marital residence and raised their three children there. Title to the house was solely in Donald’s name. Donald executed a will in 1983 that appointed Nancy as personal representative and left her all of his estate.

On August 6, 1999 Donald executed a deed of trust on the house in favor of National Bank of Alaska (NBA) in return for a $55,000 loan. The deed contained a provision that Nancy was required to sign in order to waive her homestead rights. The parties have stipulated that Donald forged Nancy’s signature on that portion of the deed. The deed was recorded on August 12,1999.

On August 13, 1999 Nancy received documents from NBA that informed her of the loan Donald had secured against the house. Nancy promptly notified NBA that the signature on the deed was not hers. NBA responded with a letter stating that it would consider the document purporting to waive her homestead rights invalid. NBA also contacted Donald and obtained additional security on the loan including a truck and an all-terrain vehicle. On December 25, 1999 Donald committed suicide. After Donald’s death, NBA accelerated the loan, declared it to be in default, and sought to foreclose on the house.

B. Proceedings

Nancy applied for informal probate of Donald’s will. She applied for and was appointed personal representative of the estate. Nancy then filed a motion to have the deed of trust declared void and to enjoin the foreclosure, along with a motion to establish exempt property and to set a family allowance. It appears that Nancy subsequently recorded a “notice of homestead.”

Oral argument was heard and a recommendation made by Standing Master Alicem-ary L. Closuit. Master Closuit recommended that the superior court deny Nancy’s motion to have the deed declared void. Master Closuit stated that, since Nancy had no ownership interest in the house, the deed was still valid and NBA could foreclose.

The superior court rejected Master Clo-suit’s recommendations and granted Nancy’s motion to set the deed aside. The superior court noted that AS 34.15.010 requires both spouses to join in a conveyance of the family home. However, the court went on to note that the statute does not automatically invalidate a deed when a spouse not appearing on the title fails to join in the conveyance. And since Nancy’s name did not appear on the title of the house, the deed was not invalid on its face. Rather, the superior court determined that the deed could be set aside under AS 34.15.010(d) because Nancy filed a motion to have the deed set aside within one year of its execution. Therefore, the superior court granted Nancy’s motion, and set the deed aside.

NBA appeals.

III. STANDARD OF REVIEW

We use our independent judgment in interpreting statutes. “The goal of statutory construction is to give effect to the legislature’s intent, with due regard for the meaning the statutory language conveys to others.” In interpreting statutes, “we look to the meaning of the language, the legislative history, and the purpose of the statute in question.” We “ ‘adopt the rule of law that is most persuasive in light of precedent, reason, and policy.’ ”

IV. DISCUSSION

NBA argues that the superior court erred in finding that AS 34.15.010 alone allowed for the setting aside of the deed. NBA argues that AS 34.15.010(c) provides that the requirement that a spouse join in a conveyance does not give that spouse any interest in the property that the spouse did not previously have. According to NBA, AS 34.15.010(d) allows for invalidation of the deed only if the spouse that failed to join in the deed appears on the title; the statute does nothing to invalidate the deed if the spouse does not appear on the title. Consequently, NBA asserts that the deed is valid and enforceable because Nancy’s name does not appear on the title.

The superior court concluded that, when a spouse does not join in the conveyance and that spouse’s name appears on the title, the deed is invalid on its face under AS 34.15.010. However, when a spouse does not appear on the title, the superior court stated that the spouse must either file a notice of interest with the recording district or bring an action to set the deed aside within one year from the recording of the conveyance to invalidate the deed under AS 34.15.010(d). In order to determine whether the superior court’s interpretation of AS 34.15.010 is the proper interpretation, we analyze the statute section by section.

First, AS 34.15.010(b) provides that “[i]n a deed or conveyance of the family home or homestead by a married man or a married woman, the husband and wife shall join in the deed or conveyance.” The statute makes no distinction between spouses whose names appear on the title and spouses whose names do not appear on the title. The statute unequivocally states that, if one spouse attempts to convey the property used as the family home, then the other spouse must, as shown by the use of the word “shall,” join in the conveyance. NBA seems to agree that this is the appropriate reading of AS 34.15.010(b).

Second, AS 34.15.010(c) provides that “[t]he requirement that a spouse of a married person join in a deed or conveyance of the family home or homestead does not create a proprietary right, title, or interest in the spouse not otherwise vested in the spouse.” This section supports NBA’s assertion that the statute does not give Nancy any interest in the house that she did not previously have. The superior court agreed with this conclusion, stating that “[sjubsection (c) would mean that a spouse who is not on the title would not acquire title in the property simply by joining in the other spouse’s conveyance of an interest in the property.” Given the language of the statute, it appears that the legislature intended to make clear that the requirement that a spouse join in the conveyance of a homestead interest would not create any proprietary right, title, or interest in that spouse.

Third, AS 34.15.010(d) provides:

Failure of the spouse to join in the deed or conveyance does not affect the validity of the deed or conveyance, unless the spouse appears on the title. The deed or conveyance is sufficient in law to convey the legal title to the premises described in it from the grantor to the grantee when the deed or conveyance is otherwise sufficient, and
(1) no suit is filed in a court of record in the judicial district in which the land is located within one year from the date of recording of the deed or conveyance by the spouse who failed to join in the deed or conveyance to have the deed or conveyance set aside, altered, changed, or reformed; or
(2) the spouse whose interest in the property is affected does not record, within one year in the office of the recorder for the recording district where the property is situated, a notice of an interest in the property.

The first sentence of this subsection means that, if a spouse who appears on the title does not join in a conveyance of the family home, the conveyance is per se invalid. The second sentence addresses the situation in which a non-titled spouse does not join in the conveyance: the conveyance is valid and enforceable as long as it is “otherwise sufficient,” that is, it meets the requirements of subsection (a) and so long as the non-titled spouse neither files suit to set the conveyance aside within one year from the recording of the conveyance nor files a notice of interest in the property within the same period. This is the way the superior court interpreted this subsection. We agree, provided that the interest asserted within the one-year period has a source independent of the join-der requirement of AS 34.15.010(b).

NBA asserts that subsection (d) applies only to deeds in which the spouse’s name appears on the title and that spouse did not join in the conveyance. The bank argues that subparts (1) and (2) of subsection (d) apply to situations in which a spouse is named on the title and does not join in the conveyance. NBA argues that in those situations, the deed or conveyance would not be per se invalid; rather, the spouse would still have to bring an action to set aside the conveyance or file a notice of interest in the recording district in order to have the conveyance set aside. However, as the superior court noted, this interpretation reads subsection (b) out of the statute, as the requirement that both untitled and titled spouses join in deeds would be meaningless if there was no way for untitled spouses to enforce the rights protected by that requirement by invalidating a deed.

The use of the word “unless” in subsection (d) implies that the situation in which the spouse does appear on the title and does not join in a conveyance is the situation in which the deed is automatically invalid. Therefore, the requirement of either filing a suit or recording a notice of interest applies to spouses whose names do not appear on the title. In the absence of such a reading, the blanket requirement that a spouse join in the conveyance in subsection (b) would be meaningless as there would be no consequence for a spouse not joining if that spouse does not appear on the title. Non-titled spouses can invalidate deeds and conveyances under AS 34.15.010 in the event that they follow the procedure set out in AS 34.15.010(d) and are asserting a right not created by AS 34.15.010.

NBA cites the territorial Alaska case of Spracher v. Spracher in support of its interpretation of AS 34.15.010. Spracher was a divorce action in which the husband mortgaged the homestead without the wife’s signature and the wife sought to set aside the conveyance. The statute at issue in Spracher was almost identical to the statute at issue here. The court held that the statute did not give the wife an interest in the property, but this holding is inapposite in this case. The wife’s inability to invalidate the conveyance was based on the divorce, as the court held that her homestead rights did not survive the divorce.

We agree that the statute does not give an untitled spouse an interest in property. Instead, the interest asserted must have a source independent of the statute. But our case is different from Spracher. Here, Nancy’s interest in the property survived her husband, in fact it vested with his death.

Nancy had at least two valid interests in the property within the scope of AS 34.15.010’s protection. The interest required for Nancy to challenge the deed is supplied by the probate homestead allowance and her right to inherit the decedent’s property (according to his valid will, by exercising her right to an elective share of his estate, or through the laws of intestate succession ). Because Donald’s will left the property to Nancy, she was entitled to inherit the decedent’s interest in the home. Likewise, the probate homestead exemption would have protected Nancy’s interest in the home. These interests are not created by AS 34.15.010, but are precisely the type of rights that AS 34.15.010 is intended to protect. The statute protects for one year Nancy’s right to inherit the property she would have been entitled to inherit in the absence of an improperly acquired deed against that property. Because invalidation of the deed would protect a right to inherit the home, Nancy has the right under AS 34.15.010 to invalidate the deed.

Because Nancy Ketzler timely took the action that the statute provides will invalidate a deed that fails to contain the signature of the untitled spouse in order to protect her right of inheritance, the superior court correctly held that the bank’s deed could be invalidated and proceeded to invalidate it. Therefore, we uphold the superior court’s decision to set aside the deed of trust.

Y. CONCLUSION

Because we find that the superior court properly interpreted AS 34.15.010, we AFFIRM the setting aside of the deed of trust.

BRYNER, Justice, not participating.

      .AS 34.15.010 states:
      (a) A conveyance of land, or of an estate or interest in land, may be made by deed, signed and sealed by the person from whom the estate or interest is intended to pass, who is of lawful age, or by the lawful agent or attorney of the person, and acknowledged or proved, and recorded as directed in this chapter, without any other act or ceremony whatever.
      (b) In a deed or conveyance of the family home or homestead by a married man or a married woman, the husband and wife shall join in the deed or conveyance.
      (c) The requirement that a spouse of a married person join in a deed or conveyance of the family home or homestead does not create a proprietary right, title, or interest in the spouse not otherwise vested in the spouse.
      (d) Failure of the spouse to join in the deed or conveyance does not affect the validity of the deed or conveyance, unless the spouse appears on the title. The deed or conveyance is sufficient in law to convey the legal title to the premises described in it from the grantor to the grantee when the deed or conveyance is otherwise sufficient, and
      (1) no suit is filed in a court of record in the judicial district in which the land is located within one year from the date of recording of the deed or conveyance by the spouse who failed to join in the deed or conveyance to have the deed or conveyance set aside, altered, changed, or reformed; or
      (2) the spouse whose interest in the property is affected does not record, within one year in the office of the recorder for the recording district where the property is situated, a notice of an interest in the property.

      . Alderman v. Iditarod Props., Inc., 32 P.3d 373, 380 (Alaska 2001).

      . Tesoro Alaska Petroleum Co. v. Kenai Pipe Line Co., 746 P.2d 896, 905 (Alaska 1987).

      . Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787 (Alaska 1996).

      . Berger v. Wien Air Alaska, 995 P.2d 240, 242 (Alaska 2000) (quoting Williams v. Utility Equip., Inc., 837 P.2d 1112, 1117 (Alaska 1992)).

      . Our search of the legislative history uncovered nothing that assists interpretation of the statute, and the parties have not referred us to useful legislative history. The statute as originally codified in § 22-3-1 ACLA 1949 consisted of one paragraph containing the provisions now codified as AS 34.15.010(a)-(b). The legislature amended the statute in 1953 to add the text now codified as AS 34.15.010(c)-(d).

      . 17 Alaska 698 (D.Alaska 1958).

      . Id. at 702-03.

      . Id. at 702.

      . Id. at 705.

      . The territorial court’s opinion that the spouse in Spracher had no interest that survived the divorce is not necessarily consistent with contemporary legal standards. The property in question there would be considered "marital property” under today’s standards because a divorce was pending and as such would be subject to division in the divorce even though held only in the name of the husband. "Marital property” is not a species of ownership but it arguably represents a sufficient interest to receive protection under the statute. This question is not presented in this case and we do not resolve it here.

      . AS 13.12.402.

      . AS 13.12.501-13.12.921.

      . AS 13.12.202(a).

      . AS 13.12.102.


author: MANNHEIMER, Judge.

text:
    Warren L. REGISTER and Roger A. Register, Appellants, v. STATE of Alaska, Appellee.
    Nos. A-7923, A-07943.
    Court of Appeals of Alaska.
    June 6, 2003.

      Eugene B. Cyrus, Eagle River, for Appellant Warren L. Register. Scott A. Sterling, Sterling & DeArmond, Wasilla, for Appellant Roger A. Register.
    Nancy R. Simel, Assistant Attorney General, Office of Special Prosecutions and Appeals, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

MANNHEIMER, Judge.

Warren L. and Roger A. Register were charged with first-degree assault arising from the same incident. They ultimately reached plea agreements with the State; under these plea agreements, Warren and Roger were allowed to plead no contest to reduced charges of second-degree assault.

Later, the Register brothers were sued by the victim of the assault. The superior court ruled that because Warren and Roger had pleaded no contest to second-degree assault, they were now estopped from contesting the fact that they had used force against the victim. (The superior court also ruled, however, that the Registers could still assert that their use of force had been justified — either as self-defense, or as defense of each other, or for any other reason.)

In response to this ruling, the Registers asked the superior court to allow them to withdraw their no contest pleas. The Registers asserted that they had entered their pleas under the mistaken understanding that the pleas could not be used against them in related civil litigation, and they further asserted that they would not have pleaded no contest had they known that their pleas could in fact be used against them in the victim’s civil suit.

Following an evidentiary hearing, the superior court denied the Registers’ motions to withdraw their pleas.

In this appeal, the Registers ask us to declare that if a defendant enters a no contest plea based on the mistaken impression that this plea will not affect their ability to defend a related civil lawsuit, and then the defendant is sued and it turns out that the plea can be used against the defendant, the defendant’s mistaken belief concerning the civil consequences of their no contest plea constitutes a sufficient reason for the defendant to be allowed to withdraw the plea.

We conclude that we need not answer this question. The superior court found that both Registers had in fact understood that their no contest pleas might be used against them in related civil litigation. The superior court further found that even if the Registers had mistakenly believed that their pleas could not be used against them in related civil litigation, this mistaken belief did not influence their decision to accept or reject the State’s offered plea bargain. These findings are supported by the record. Because these findings are not clearly erroneous, (1) the legal issue that the Registers ask us to address is moot, and (2) the superior court properly denied the Registers’ requests to withdraw their no contest pleas.

Underlying facts

In April 1996, Warren L. and Roger A. Register were indicted for first-degree assault arising from the stabbing of Phillip Carter. Six months later, in October 1996, they reached plea agreements with the State: both Register brothers were allowed to plead no contest to the reduced charge of second-degree assault. Warren Register later received a sentence of 3 years’ imprisonment with 2 years suspended (1 year to serve), thus securing his immediate release from prison. Roger Register received a sentence of 3½ years imprisonment with 2 years suspended (1½ years to serve).

The following year (1997), Carter filed a civil lawsuit against the Registers, seeking money damages for the stabbing. Based on the fact that both Register brothers had pleaded no contest to second-degree assault arising from this incident, Carter asked the superior court to grant him summary judgement on the issue of liability. Superior Court Judge Eric B. Smith ultimately ruled that the Registers were estopped from denying that they had stabbed Carter. At the same time, however, Judge Smith ruled that the Registers were free to argue that their conduct was justified by self-defense, or by defense of others, or for any other reason.

The filing of Carter’s motion for partial summary judgement prompted both Warren and Roger Register to file petitions for post-conviction relief, claiming that they should be allowed to withdraw their no contest pleas because they had been misled concerning the effect of those pleas on related civil litigation. Specifically, both Register brothers claimed that their decision to plead no contest had been influenced by their belief that their no contest pleas could not be used against them in any related civil lawsuit. The Registers asserted that this belief was engendered by the content of the advice-of-rights videotape that they viewed before their arraignment, and that this belief was later confirmed by what their attorneys told them during the consultations that preceded the entry of their pleas.

Judge Smith held a hearing to investigate the Registers’ claims. At this hearing, it was undisputed that the advice-of-rights videotape that the Registers viewed in April 1996 did indeed inform arraignees that a plea of no contest could not be used against a person in related civil litigation. But there was substantial dispute concerning what the Registers’ attorneys had told them about the consequences of a no contest plea during their pre-plea discussions.

The Alaska Supreme Court’s recent decisions concerning the effect of a no contest plea in related civil litigation

Traditionally, one of the defining characteristics of a no contest plea was that it could not be used against a defendant if the defendant was sued for damages arising from the criminal episode. But in a series of recent decisions, the Alaska Supreme Court has suggested that this may no longer be the law.

In Burcina v. Ketchikan, 902 P.2d 817, 822 (Alaska 1995), the supreme court declared for the first time that “a civil plaintiff is collaterally estopped from relitigating any element of a criminal charge to which he has pled nolo contendere”.

The following year, in Howarth v. Alaska Public Defender Agency, 925 P.2d 1330, 1333 (Alaska 1996), the supreme court applied its holding in Burcina, ruling that a former client of the Public Defender Agency who was suing to recover money for alleged malpractice was collaterally estopped from asserting his innocence of a charge to which he had pleaded no contest.

And in Lashbrook v. Lashbrook, 957 P.2d 326, 330 n. 2 (Alaska 1998), the supreme court (again relying on Burcina) held that a defendant in a child custody dispute was “precluded from challenging the facts which constitute the elements of the [domestic assault and weapons offense] to which he pled no contest”.

The evidence presented at the post-conviction relief hearing

As explained above, the Register brothers asserted that their mistaken impression about the consequences of a no contest plea — their impression that their pleas could not be used against them in related civil litigation — was confirmed by what their attorneys told them during the plea negotiation process. During these plea negotiations, Roger Register was represented by attorney Sidney Billingslea, while Warren Register was represented by attorney Donna MeCready.

The Register brothers entered their no contest pleas in October 1996. The Burcina decision had been issued one year before — on September 22, 1995. (The supreme court’s decision in Howarth was issued on November 8, 1996, just a few days after the Registers entered their pleas.)

Sidney Billingslea, the attorney representing Roger Register, testified that after the supreme court decided Burcina, “all [of her] clients received information that a no contest plea ... might as well be a guilty plea for purposes of fixing liability in ... a subsequent civil proceeding”, and that “the plaintiffs in a civil case can take [the facts conceded by] that no contest plea as proved”.

Billingslea was asked whether she gave this advice only to clients who asked about this issue, or whether she explained this point of law to all of her clients, regardless of whether they were concerned about civil liability. She replied, “No, ... I just give it_ It’s kind of my Miranda warning”.

Billingslea conceded that she had no direct memory of what she told Roger Register on this point. She stated that she was “fairly confident” that she gave this advice to Roger. But Billingslea added that if Donna MeCready or the Register brothers had a specific memory to the contrary, the court should rely on that.

Roger Register then took the stand to rebut Billingslea’s testimony. He stated that Billingslea never told him that a no contest plea might be used against him in civil litigation. Indeed, Roger asserted that, at some point during the representation, Billingslea expressly confirmed the accuracy of the information contained on the advice-of-rights videotape. Roger declared that he remembered Billingslea telling him “that they can not use your no contest plea as an admission of guilt ... in a civil litigation”.

In response to further questions, Roger conceded that he had not asked Billingslea about this issue when he was getting ready to accept the offered plea bargain and enter his no contest plea. But he stated that Bil-lingslea “never mentioned that the law had changed” from what she had previously told him.

Turning to Warren Register’s case, Donna MeCready testified she did not remember much about her discussions with Warren on this issue. (MeCready explained that she had not reviewed her notes, nor did she have access to those notes, since she was testifying from her car via cell phone.)

MeCready could not recall whether potential civil liability was a concern to Warren. She also said that, until the Howarth decision came out, she was unaware that a no contest plea might be used against a defendant in related civil litigation. (As noted above, Ho-warth was issued a few days after the Registers entered their pleas-but before they were sentenced.)

For his part, Warren Register asserted that he had a much firmer memory of the pre-plea discussions. He testified that he specifically asked MeCready whether a no contest plea would put him at risk for civil liability, and he declared that MeCready expressly advised him that a no contest plea could not be used against him in a related civil lawsuit. Warren stated that this conversation occurred in the courthouse holding cell, just before he was scheduled to appear in court for his trial call. Warren further stated that, had he known that his no contest plea might be used against him in related civil litigation, he would not have accepted the State’s plea bargain.

Judge Smith’s findings of fact

As to the conflict between the testimony given by Sidney Billingslea and the testimony given by Roger Register, Judge Smith concluded that Billingslea’s testimony was more credible. The judge stated, “Given Ms. Billingslea’s obvious competence and her awareness of the Burcina decision, the court finds that she did not tell [Roger] Register that he could not be liable in a civil case if he pled no contest.” Instead, Judge Smith found that it was “highly likely” that Billing-slea gave Roger Register “the same advice ... that ... she routinely gave her clients once she learned of the Burcina decision”— the advice “that a no contest plea could well be used against him in a civil case”.

Judge Smith further concluded that even if Roger Register had misunderstood the civil consequences of a no contest plea, this had no effect on Roger’s decision to accept the State’s plea bargain.

The judge noted that Roger was initially charged with first-degree assault, a class A felony carrying a maximum penalty of 20 years’ imprisonment and a presumptive term of 7 years’ imprisonment. Under the State’s plea bargain, Roger was offered the opportunity to plead guilty or no contest to second-degree assault, a class B felony. In addition, the State agreed to a sentence cap of 3 years to serve. Given these circumstances, Judge Smith concluded that it was “difficult to believe that the possibility of liability in a civil suit would have been enough to impel [Roger] Register to reject this rather lenient deal”.

To resolve Warren Register’s case, Judge Smith noted another aspect of Sidney Billing-slea’s testimony: Billingslea testified that “the bulk of her discussions on the issue of whether to [accept the] plea [bargain] were held ... with Ms. MeCready and both of the Registers”.

Judge Smith noted that Billingslea’s routine advice to clients changed after the supreme court issued the Burcina decision in 1995 — that, after Bunina, “she routinely advised clients that a no contest plea was equivalent to a guilty plea for purposes of civil liability”. Based on the fact that the Registers and their attorneys discussed the proposed plea bargain as a group, and on the fact that Billingslea made a point of explaining to her clients that a no contest plea could be used against them in related civil litigation, Judge Smith concluded that it was “quite possible that Mr. Warren Register received the benefit of Ms. Billingslea’s opinion” concerning the civil consequences of a no contest plea.

Judge Smith further concluded that it was “highly unlikely” that Warren Register received the advice he claimed he was given— i.e., advice that confirmed the videotape’s mistaken description of the effect of a no contest plea. Judge Smith declared that he “[did] not find credible Warren Register’s assertions that [his attorney] Ms. MeCready confirmed the ... information [on the advice-of-rights videotape] shortly before he walked into court [to accept the plea bargain].”

Moreover, similar to his ruling in Roger’s case, Judge Smith concluded that even if Warren Register had misunderstood the civil consequences of a no contest plea, this had no effect on Warren’s decision to accept the State’s plea bargain.

The judge noted that Warren, like his brother Roger, was initially charged with first-degree assault, a class A felony carrying a maximum penalty of 20 years’ imprisonment and a presumptive term of 7 years’ imprisonment. Under the State’s plea bargain, Warren was offered the opportunity to plead guilty or no contest to second-degree assault, a class B felony. In addition, the State agreed to a sentence cap of 3 years to serve. Moreover, when this initial plea bargain threatened to unravel, Warren “was able to persuade the state to make some additional sentencing concessions” in order to keep the plea bargain on track.

Given these circumstances, Judge Smith concluded that it was “difficult to believe that the possibility of liability in a civil suit would have been enough to impel [Warren] Register to reject this rather lenient deal.”

Based on these findings, Judge Smith denied both Roger Register’s and Warren Register’s petitions to withdraw their pleas.

Our review of Judge Smith’s decision

Under Alaska Criminal Rule 11(h)(3) and AS 12.72.040, it was the Registers’ burden to prove by clear and convincing evidence that they were entitled to withdraw their pleas. Judge Smith concluded that the Registers had failed to meet this burden. Indeed, the judge concluded that Registers had failed to prove their case by even a preponderance of the evidence: he found that the true facts of the case were contrary to the Registers’ assertions.

As the Registers concede, if they are to prevail in this appeal, they must demonstrate that Judge Smith’s findings of fact are clearly erroneous. We have reviewed the record, and we conclude that Judge Smith’s findings are not clearly erroneous. It was Judge Smith’s job to resolve the conflicts in the testimony and to draw inferences from the testimony. His resolution of the conflicts and the inferences he drew from the testimony are reasonable. We are not left with “a definite and firm conviction on the entire record that a mistake has been made”.

Accordingly, the judgements of the superi- or court are AFFIRMED.

      . AS 11.41.210(a).

      . See Miller v. State, 617 P.2d 516, 518 (Alaska 1980). Compare State v. Ruby, 650 P.2d 412, 413-14 (Alaska App.1982) (holding that a plea of no contest may be used to establish the defendant's violation of pre-existing probation, but the plea is not conclusive evidence of the defendant’s commission of the new crime).

      . See AS 11.41.200(b); AS 12.55.125(c) and (c)(2)(A).

      . See Dolchok v. State, 639 P.2d 277, 282-83 (Alaska 1982).

      . Geczy v. LaChappelle, 636 P.2d 604, 606 n. 6 (Alaska 1981); Mathis v. Meyeres, 574 P.2d 447, 449 (Alaska 1978).