author: DAVIS, Judge:

text:
    2003 UT App 276
    STATE of Utah, Plaintiff and Appellee, v. Ernesto HERNANDEZ, Defendant and Appellant.
    No. 20020576-CA.
    Court of Appeals of Utah.
    July 25, 2003.

      Benjamin A. Hamilton, Salt Lake City, for Appellant.
    David E. Yocom and Katherine Peters, Salt Lake City, for Appellee.
    Before Judges DAVIS, ORME, and THORNE.
   OPINION

DAVIS, Judge:

1 1 Ernesto Hernandez appeals his convietion of driving under the influence of alcohol with a passenger under sixteen years of age in the vehicle, a class A misdemeanor, in violation of Utah Code Ann. § 41-6-44 (Supp.2002). 'We affirm.

BACKGROUND

T2 Hernandez was charged with driving under the influence of aleohol with a passenger under sixteen years of age in the vehicle and failure to wear a safety belt. At trial, the parties stipulated to certain facts regarding Hernandez's conduct during the incident at issue. The trial court incorporated these stipulated facts into its Findings of Fact as follows:

1. On June 30, 2001(,] Ernesto A. Hernandez, defendant|,] did drive 82 miles per hour in a 60 mile per hour posted zone;
2. Defendant failed to wear his seat belt;
3. - Defendant followed the vehicle in front of his at an unsafe distance;
4. - Defendant was driving under the influence of aleohol with a breath alcohol content of .155[;] and
5. Defendant had his daughter in the car at the time who was under the age of sixteen years.

T3 Based upon these facts, Hernandez argued that his conduct was proscribed by both the statute defining reckless driving, Utah Code Ann. § 41-6-45(1)(b) (Supp.2002), and the statute defining driving under the influence of alcohol with a passenger under sixteen years of age in the vehicle, Utah Code Ann. § 41-6-44(@2)(a)@iii), (8)(a)@Gi)(B) (Supp. 2002). Because section 41-6-45(1)(b) carries a lesser penalty than the part of section 41-6-44 under which Hernandez was charged, Hernandez argued that the Shondel rule was applicable and, therefore, that he was entitled to be charged and sentenced under seetion 41-6-45(1)(b). See State v. Shondel, 22 Utah 2d 343, 453 P.2d 146, 148 (1969).

1 4 The trial court concluded that the part of section 41-6-44 under which Hernandez was charged and section 41-6-45(1)(b) do not proscribe the same conduct, and, therefore, that the Shondel rule was inapplicable. Accordingly, the trial court convicted Hernandez of driving under the influence of aleohol with a passenger under sixteen years of age in the vehicle, pursuant to section 41-6-44. See Utah Code Ann. § 41-6-44@Q@)(a)(@), (8)(a)(i)(B). Hernandez now appeals.

ISSUE AND STANDARD OF REVIEW

€ 5 The sole issue on appeal is whether the trial court erred in determining that the part of Utah Code Ann. § 41-6-44 (Supp.2002) under which Hernandez was charged and Utah Code Ann. $ 41-6-45(1)(b) (Supp.2002) do not proscribe the same conduct, thereby rendering the Shondel rule inapplicable.

T6 "Because the determination of whether two statutes proscribe the same conduct is a matter of statutory construction, it is a question of law that we review for correctness." State v. Fedorowicz, 2002 UT 67,¶ 49, 52 P.3d 1194, cert. denied, 537 U.S. 1123, 123 S.Ct. 859, 154 L.Ed.2d 805 (2003). "Our review under the Shondel rule focuses on the trial court's legal conclusions, which we review under a correction-of-error standard, according no particular deference to the trial court's ruling." State v. Green, 2000 UT App 33,¶ 5, 995 P.2d 1250 (quotations and citation omitted).

ANALYSIS

T7 Hernandez argues that the part of Utah Code Ann. § 41-6-44 (S8upp.2002) under which he was charged and Utah Code Ann. § 41-6-45(1)(b) (Supp.2002) prosecribe the same conduct. Based upon this argument, Hernandez argues that the Shondel rule is applicable and, therefore, that the trial court erred by not charging and sentencing him under section 41-6-45(1)(b) because it carries a lesser penalty than the part of section 41-6-44 under which he was charged.

T8 "The Shondel doctrine requires that when two different statutory provisions define the same offense, a defendant must be sentenced under the provision carrying the lesser penalty." State v. Green, 2000 UT App 33,¶ 6, 995 P.2d 1250. However, "(tlhe doctrine necessarily applies only when the two statutes address 'exactly the same conduct.'" State v. Bluff. 2002 UT 66,¶ 33, 52 P.3d 1210 (quoting State v. Gomez, 722 P.2d 747, 749 (Utah 1986)), cert. denied, 123 S.Ct. 999 (2003). "[Ilf the elements of the crime{[s] are not identical and the relevant statutes require proof of some fact or element not required to establish the other, the statutes do not proseribe the same conduct and ... [2 defendant] may be charged with the crime carrying the more severe sentence...." Green, 2000 UT App 33 at ¶ 6, 995 P.2d 1250 (third and fourth alterations in original) (quotations and citations omitted).

T9 "Accordingly, to determine if the trial court erred ... we must compare the plain language of [the two statutes in question] to resolve whether they prohibit the same conduct and whether the elements of each crime are wholly duplicative." State v. Fedorowics, 2002 UT 67,¶ 49, 52 P.3d 1194 (quotations and citation omitted), cert. denied, 537 U.S. 1123, 123 S.Ct 859, 154 L.Ed.2d 805 (2003).

T10 The part of section 41-6-44 under which Hernandez was charged provides:

(2) (a) A person may not operate or be in actual physical control of a vehicle within this state if the person:
(ii) has a blood or breath alcohol concentration of .08 grams or greater at the time of operation or actual physical control.
(3) (a) A person convicted the first or see-ond time of a violation of Subsection (2) is guilty of a:
(i) class A misdemeanor if the person:
(B) had a passenger under 16 years of age in the vehicle at the time of the offensel[.]

Utah - Code _ Ann. (8)(a)(ii)(B). § 41-6-440@)(a)(iii),

T 11 In relevant part, section 41-6-45 provides:

(1) A person is guilty of reckless driving who operates a vehicle:
(b) while committing three or more moving traffic violations under Title 41, Chapter 6, Traffic Rules and Regulations, in a series of acts within a single continuous period of driving.
(2) A person who violates Subsection (1) is guilty of a class B misdemeanor.

Id. § 41-6-45(1)(b), (2).

«12 Based upon the plain language of these two statutes, we conclude that each of them requires proof of elements not required by the other. To convict a defendant of violating the part of section 41-6-44 under which Hernandez was charged, the State is required to prove that the defendant had a "blood or breath aleohol concentration of .08 grams or greater at the time of operation or actual physical control" of the vehicle and that the defendant "had a passenger under 16 years of age in the vehicle at the time of the - offense." Id. - § 41-6-44(@2)(a)(ii), (3)(a)i{)(B). The State is not specifically required to prove these two elements to convict a defendant under section 41-6-45(1)(b). See id. § 41-6-45(1)(b).

113 Further, even if proof of these two elements could be used as part of establishing one of the "three or more moving traffic violations under Title 41, Chapter 6," id., required to convict a defendant under section 41-6-45(1)(b), section 41-6-45(1)(b) requires proof of elements not required by the part of section 41-6-44 under which Hernandez was charged. To convict a defendant under seetion 41-6-45(1)(b), the State is required to prove that the defendant "operate[d] a vehicle ... while committing three or more moving traffic violations under Title 41, Chapter 6, Traffic Rules and Regulations, in a series of acts within a single continuous period of driving." Id. To prove this, the State must prove the underlying elements of at least three "moving traffic violations under Title 41, Chapter 6." Id. Therefore, section 41-6-45(1)(b) will always require proof of additional elements beyond any single "moving traffic violation{ ] under Title 41, Chapter 6," id., including driving under the influence of alcohol with a passenger under sixteen years of age in the vehicle under section 41-6-44.

14 Because "the elements of the crime{[s] are not identical and the relevant statutes require proof of some fact or element not required to establish the other, the statutes do not proseribe the same conduct." State v. Green, 2000 UT App 33,¶ 6, 995 P.2d 1250 (quotations and citations omitted). Therefore, the Shondel rule is inapplicable in this case.

CONCLUSION

T15 We conclude that the trial court did not err in determining that driving under the influence of alcohol with a passenger under sixteen years of age in the vehicle under Utah Code Ann. § 41-6-44 (Supp.2002) and reckless driving under Utah Code Ann. § 41-6-45(1)(b) (Supp.2002) do not proseribe the same conduct. Therefore, we conclude that the trial court did not err in determining that the Shondel rule was inapplicable in this case. Accordingly, we affirm Hernandez's conviction.

1 16 WE CONCUR: GREGORY K. ORME and WILLIAM A. THORNE JR., Judges.

      . Hernandez argued that his conduct was defined by the reckless driving statute because the stipulated facts established that he "committ[ed] three or more moving traffic violations under Title 41, Chapter 6, Traffic Rules and Regulations, in a series of acts within a single continuous period of driving." Utah Code Ann. § 41-6-45(1)(b) (Supp.2002).

      . Driving under the influence of alcohol with a passenger under sixteen years of age in the vehicle is a class A misdemeanor. See Utah Code Aun. § 41-6-44(3)(a)(ii)(B) (Supp.2002). Reckless driving is a class B misdemeanor. See id. § 41-6-45(2).

      . In addition to his Shondel argument, Hernandez presents a statutory interpretation argument for our consideration. We do not separately address his statutory interpretation argument because our analysis under the Shondel rule requires us to interpret and compare the two statutes in question. See State v. Fedorowicz, 2002 UT 67,¶¶ 49-58, 52 P.3d 1194, cert. denied, 537 U.S. 1123, 123 S.Ct. 859, 154 L.Ed.2d 805 (2003); State v. Bluff, 2002 UT 66,¶¶ 33-36, 52 P.3d 1210, cert. denied, 537 U.S. 1172, 123 S.Ct. 999, 154 L.Ed.2d 914 (2003); State v. Gomez, 722 P.2d 747, 749 (Utah 1986); State v. Green, 2000 UT App 33,¶¶ 6-8, 995 P.2d 1250; In re W.C.P., 1999 UT App 35,¶¶ 14-15, 974 P.2d 302; State v. Giles, 966 P.2d 872, 875-16 (Utah Ct.App.1998).


source: Caselaw Access Project

author: BENCH, Judge:

license: Public Domain

text:
    2003 UT App 265
    STATE of Utah, in the interest of J.H. and M.H., persons under eighteen years of age. K.B. and S.B., Appellants, v. State of Utah, Appellee.
    No. 20020841-CA.
    Court of Appeals of Utah.
    July 25, 2003.
    Loren M. Lambert, Midvale, for Appellants.
    Mark L. Shurtleff and Carol L. Verdoia, Asst. Attys. Gen., Salt Lake City, for Appel-lee.
    Kristen G. Brewer and Martha Pierce, Salt Lake City, Guardians Ad Litem.
    Before BILLINGS, Associate P.J., BENCH, and THORNE, JJ.
   OPINION

BENCH, Judge:

T1 This is an appeal from an order denying an adoption petition.

BACKGROUND

12 J.H. and MH. are the natural born children of P.H. (father) and TH. (mother). The children were removed from their parents' custody for the second time in October 2000. On approximately December 21, 2000, both children were adjudicated as having been abused by father and neglected by mother. Around this same time period, the court ordered kinship placement studies involving Appellants Appellant S.B. is the sister of father, and Appellant K.B. is her husband. Kinship placement with Appellants was rejected based on their difficulty in accepting the children's allegations of abuse against father. Appellants did not appeal or contest the court's decision regarding kinship placement.

13 Several months after the State filed to terminate the parental rights of father and mother, Appellants filed their own Petition to Terminate Parental Rights, along with a Request to Adopt. Father and mother voluntarily relinquished their parental rights, and trial on Appellants' Request to Adopt was held in September 2002. After hearing the evidence, the trial court denied Appellants' petition to adopt because they "failed to meet the burden of proof of establishing themselves as an appropriate adoptive placement for the children{[,] have no current relationship with the children{,] and only visited the children onee in the last six months." Appellants now appeal, contesting the denial of their petition to adopt and contesting the proceedings that occurred earlier in reference to possible kinship placement of the children.

ISSUES AND STANDARDS OF REVIEW

T4 Whether the juvenile court erred in failing to comply with its statutory obligation is a question of law; however, "[flor a question to be considered on appeal, the record must clearly show that it was timely presented to the trial court in a manner sufficient to obtain a ruling thereon." Franklin Fin. v. New Empire Dev. Co., 659 P.2d 1040, 1045 (Utah 1983).

15 Whether the juvenile court properly denied Appellants' petition to adopt is a mixed question of fact and law. "We review the juvenile court's findings for clear error and its conclusions of law for correctness, affording the court 'some discretion in applying the law to the facts' " In re G.B., 2002 UT App 270,¶ 11, 53 P.3d 963 (citation omitted).

ANALYSIS

16 Appellants argue that the "court erred by failing to comply with its statutory obligation to consider kinship placement." Appellants claim that "the trial court disregarded its statutory obligations under [Utah Code Ann.] §§ 78-82a-109, 78-8a-807, 78-8a-404 and 78-80-4.24." Utah Code Ann. § 78-3a-307(5)(a) (2002) states, in relevant part, that

[ ilf, at the time of the shelter hearing, a child is removed from the custody of his parent and is not placed in the custody of his other parent, the court shall, at that time, determine whether there is a relative who is able and willing to care for the child.

Id. Testimony at the adoption trial indicated that kinship placement with the Appellants was considered and denied because of their "beliefs regarding the abuse" of the children. Clearly, pursuant to section 78-8a-807(5)(a), the juvenile court has an affirmative duty to identify and consider for kinship placement any willing relative, and then to "make a specific finding regarding the fitness of that relative to assume eustody." Utah Code Ann. § 78-82a-307(5)(b)M) (2002). However, Appellants failed to timely raise with the juvenile court any errors in the kinship placement proceedings. - Instead, many months after the children had been placed in another home, Appellants attempted to raise these issues for the first time during the trial of their adoption petition. We decline to consider Appellants' arguments regarding errors in the kinship placement proceedings because they were not timely raised in the trial court. See In re E.R., 2001 UT App 66,¶¶ 9-10, 21 P.3d 680 (declining to consider issues that were not preserved by raising them before the trial court).

T7 Appellants also argue that the trial court erred "by refusing to allow [Appellants] to participate in the proceedings and hearings ... held after [Appellants'] petition to adopt was filed." Appellants were not parties to the dispositional and permanency hearings held under sections 78-8a-311 and 78-8a-312 respectively and were not entitled to receive notice of these hearings. See Utah Code Ann. §§ 78-32-8306 to -312 (2002). Any potential right that Appellants' may have had to a hearing was satisfied by the trial of their adoption petition. See In re H.J., 1999 UT App 238,¶¶ 32-34, 986 P.2d 115.

18 Finally, Appellants argue that the juvenile court erred in dismissing their "petition to adopt when all the evidence supported their qualifications as adoptive parents." In an adoption petition, "the best interest of the child should govern and be of foremost concern in the court's determination." Utah Code Ann. § 78-80-1.5 (2002). Contrary to Appellants' suggestion, there is no preference in adoption cases for next-of-kin. See id; In re Adoption of A.B., 1999 UT App 315,¶ 16, 991 P.2d 70 (rejecting the argument that a next-of-kin relationship entitles one to preference in adoption proceedings). At the time of trial, Appellants had "no current relationship with the children" and had not "seen the children except for one incidental contact ... in almost two years." The juvenile court concluded that Appellants failed to meet their burden of showing that it was in the best interests of the children to approve Appellants' petition. Based on our review of the record, we conclude that the juvenile court did not exceed its discretion in denying Appellants' petition to adopt. See In re E.R., 2001 UT App 66 at ¶ 11, 21 P.3d 680.

CONCLUSION

19 We conclude that the juvenile court properly exercised its discretion in denying Appellants' petition to adopt. Accordingly, we affirm.

T 10 WE CONCUR: JUDITH M. BILLINGS, Associate Presiding Judge and WILLIAM A. THORNE JR., Judge.


author: BILLINGS, Associate Presiding Judge:

text:
    2003 UT App 268
    STATE of Utah, Plaintiff and Appellee, v. Jason WERNER, Defendant and Appellant.
    No. 990942-CA.
    Court of Appeals of Utah.
    July 25, 2003.
    Rehearing Denied Aug. 21, 2003.

      D. Richard Smith, Salt Lake City, for Appellant.
    Mark L. Shurtleff and Christine Soltis, Asst. Attys. Gen., Salt Lake City, for Appel-lee.
    Before BILLINGS, Associate P.J., GREENWOOD, and ORME, JJ.
   OPINION

BILLINGS, Associate Presiding Judge:

11 Jason Werner appeals his jury conviction for aggravated sexual assault, a first degree felony, in violation of Utah Code Annotated section 76-5-405 (1997). Werner asserts the district court erred in concluding his confession was not the involuntary product of police eoercion, in violation of the Fifth and Fourteenth Amendments to the United States Constitution. We affirm.

BACKGROUND

T2 On May 18, 1999, at about 9:50 a.m., Lisa Wentz was walking across the Cache Valley Mall parking lot in Logan, Utah, on her way to work. In the parking lot, a young man walked up to her and introduced himself as "Jason" and asked for her telephone number. When Lisa refused to give her number and attempted to walk away, the man grabbed her arm and pulled her towards a nearby movie theater. Lisa reported that the man threatened her, grabbed her breasts, and exposed his genitals. When the assailant was momentarily distracted by a passing car, Lisa was able to break free and run to safety. She reported the incident to her co-workers and the police were notified.

T8 At about this same time, eyewitnesses in the adjacent theater dialed 911. They described the assailant as a white male driving an older model yellow or creme colored four-door automobile.

T4 Logan police detectives began working the case immediately. Having had prior experience with Werner, Detective Rod Peterson put Werner under surveillance. Detective Peterson obtained photographs of Werner and a yellow automobile that he learned was owned by Werner's girifriend. Detective Peterson later conducted a photo lineup where three eyewitnesses, in addition to the victim, picked Werner as the assailant. Two of these witnesses also picked Werner's girlfriend's car from a photo lineup.

T5 Consequently, on May 27, 1999, at the police station, Detective Peterson questioned Werner about his involvement in the assault. The videotaped interrogation lasted approximately an hour and a half. Near the end of the interview, Werner confessed. Later at a suppression hearing, the district court heard arguments and viewed the videotaped interview in its entirety before finding that under the totality of the cireumstances, "[ Werner's] statement was voluntary ... [and without] impermissible coercion." At a subsequent jury trial, Werner was convicted of aggravated sexual assault and sentenced to an indeterminate term of ten years to life in prison. Werner appeals his conviction on grounds that the district court erred in admitting his taped confession into evidence.

ISSUE AND STANDARD OF REVIEW

16 Werner contends the district court erred in denying his motion to suppress and ruling that his confession was not involuntarily obtained through coercive police conduct. "In 'reviewing a trial court's determination on the voluntariness of a confession, we apply a bifurcated standard of review' " State v. Rettenberger, 1999 UT 80,¶ 10, 984 P.2d 1009 (quoting State v. Mabe, 864 P.2d 890, 892 (Utah 1993)). "Under the bifurcated standard, the ultimate determination of whether a confession is voluntary is a legal question, and we review the trial court's ruling for correctness." - Mabe, 864 P.2d at 892 (citing Arizona v. Fulminante, 499 U.S. 279, 287, 111 S.Ct. 1246, 1252, 118 L.Ed.2d 302 (1991)). But "[tlo the extent the trial court has made subsidiary factual findings, ... those findings will not be set aside unless they are clearly erroneous." Id. (citing State v. Thurman, 846 P.2d 1256, 1271 (Utah 1993)).

ANALYSIS

I. Miranda Warning

17 As a preliminary matter, Wer-ner suggests that prior to questioning, Detective Peterson made statements to Werner "which vaguely recited the essence of the Miranda warning." - "While Miranda is recognized as obligating police to follow certain procedures in their dealings with an accused, the decision did not prescribe that law enforcement officers adhere to a verbatim recitation of the words of the opinion." State v. Strain, 779 P.2d 221, 223 (Utah 1989). So long as the substance of Werner's Miranda warning, given " 'prior to any ques-tioningl[,]' " indicated to Werner " 'that he hald] the right to remain silent, that anything he salid could] be used against him in a court of law, that he ha[ld] the right to the presence of an attorney, and that if he [could not] afford an attorney one [would] be appointed for him prior to any questioning if he so desire[dl/ " id. (quoting Miranda v. Arizona, 384 U.S. 436, 479, 86 S.Ct. 1602, 1630, 16 L.Ed.2d 694 (1966)), then the warning was sufficient, regardless of its specific wording. "With this in mind, we examine the Miranda warning given to [Werner] upon his arrest." Id.

T8 At the time of Werner's arrest, the following exchange ensued between Werner and Detective Peterson:

Peterson: I need to make sure you understand what your rights are and all that. You don't have to talk to me if you don't want to. You can decide at any time to stop answering any questions I ask you. You can have an attorney present. And if you can't afford to hire one the court will appoint one for you.... And you can go any of those routes at any time. You do understand all of that?
Werner: Yeah.
Peterson: And anything we talk about today may be used against you in court when we get to that point, okay?
Werner: Yeab.

In his own words, Detective Peterson clearly covered every necessary component of an adequate Miranda warning.

II. Failure to Marshal the Evidence

T9 The State raises a second preliminary issue, contending we should not consider Werner's challenge of the district court's ruling that his confession was voluntary "because [Werner] failed to marshal the evidence in support of the trial court's ruling.

10 The voluntariness of a confession is a legal determination and marshaling is not required. In State v. Rettenberger, our supreme court stated with no equivocation that

[ in "reviewing a trial court's determination on the voluntariness of a confession, we apply a bifurcated standard of review." State v. Mabe, 864 P.2d 890, 892 (Utah 1993). The ultimate determination of vol-untariness is a legal question; accordingly, we review the district court's ruling for correctness. See id. (citing Arizona v. Fuiminante, 499 U.S. 279, 111 S.Ct. 1246, 113 LEd.2d 302 (1991)). We set aside a district court's factual findings only if they are clearly erroncous. Id.

1999 UT 80,¶ 10, 984 P.2d 1009.

T11 In sum, a district court's "ultimate determination of voluntariness," State v. Bunting, 2002 UT App 195,¶ 12, 51 P.3d 37 (quotations and citation omitted), after having made "underlying factual findings," State v. Thurman, 846 P.2d 1256, 1270 (Utah 1998), "is a legal question that we review for correctness," Bunting, 2002 UT App 195 at ¶ 12, 51 P.3d 37 (quotations and citations omitted), and no marshaling is required of an appellant challenging the ultimate legal determination of voluntariness of a confession on appeal.

III. Voluntariness of Confession

T12 Werner contends the district court erred in admitting "incriminating statements he made during the interview [with police, which] were the involuntary product of coercion, violating his right to due process under the Fourteenth Amendment and right to protection from compelled self-incrimination under the Fifth Amendment [to] the United States Constitution." State v. Bunting, 2002 UT App 195,¶ 12, 51 P.3d 37.

118 "The Fifth Amendment ' "protects individuals from being compelled to give evidence against themselves." '" Id. at " ¶ 14 (quoting State v. Rettenberger, 1999 UT 80,¶ 11, 984 P.2d 1009 (quoting State v. Piansiaksone, 954 P.2d 861, 865 (Utah 1998))) (other quotations and citation omitted). "[UJnder the Due Process Clause of the Fourteenth Amendment, ° "certain interrogation techniques, either in isolation or as applied to the unique characteristics of a particular suspect, are so offensive to a civilized system of justice that they must be condemned." *" Id. (quoting Rettenberger, 1999 UT 80 at ¶ 11, 984 P.2d 1009 (quoting Colorado v. Connelly, 479 U.S. 157, 163, 107 S.Ct. 515, 519, 93 L.Ed.2d 473 (1986))) (other quotations and citation omitted).

14 When the voluntariness of a confession is challenged, the Fifth and Fourteenth Amendments "require ' "the prosecution to demonstrate by a preponderance of the evidence that the statement was made voluntarily." ' " Id. (quoting Rettenberger, 1999 UT 80 at ¶ 45, 984 P.2d 1009 (quoting State v. Allen, 839 P.2d 291, 300 (Utah 1992))). "In assessing such a challenge, a trial court 'must examine the "totality of civreumstances to determine whether" ' a statement was ' "made freely, voluntarily and without compulsion or inducement of any sort." *" Id. (quoting Rettenberger, 1999 UT 80 at ¶ 14, 984 P.2d 1009 (quoting Withrow v. Williams, 507 U.S. 680, 689, 113 S.Ct. 1745, 1751, 123 L.Ed.2d 407 (1993))) (other quotations and citation omitted).

T15 For a court to find that a confession is involuntary, " ' to support [that] finding ... must reveal some physical or psychological foree or manipulation that is designed to induce the accused to talk when he otherwise would not have done so." *'" Id. (quoting Rettenberger, 1999 UT 80 at ¶ 25, 984 P.2d 1009 (quoting State v. Hegelman, T7 P.2d 1348, 1350 (Utah 1986))). In addition, "[tlhere must ' "also be a causal relationship between the coercion and the subsequent confession." '" Id. (quoting Rettenberger, 1999 UT 80 at ¶ 18, 984 P.2d 1009 (quoting State v. Mabe, 864 P.2d 890, 893 (Utah 1993))). " 'In other words, the evidence must show that the coercive tactics ... overcame the defendant's free will' " Id. (quoting State v. Galli, 967 P.2d 930, 936 (Utah 1998)).

$16 We factor into our totality of the circumstances analysis considerations such as " 'the duration of the interrogation, the persistence of the officers, police trickery, absence of family and counsel, and threats and promises made to the defendant by the officers' " Id. at ¶ 15 (quoting Rettenberger, 1999 UT 80 at ¶ 15, 984 P.2d 1009). "Other factors to consider include 'the defendant's mental health, mental deficiency, emotional instability, education, age, and familiarity with the judicial system.' " Id. (quoting Rettenberger, 1999 UT 80 at ¶ 20, 984 P.2d 1009).

T17 Finally, "[tlhe constitutional standard for determining the voluntariness of a confession requires that we independently review the entire record." Mabe, 864 P.2d at 892. With all these principles in mind, we examine the cireumstances of Werner's confession to Detective Peterson.

A. Werner's Background

118 Werner was approximately twenty-five years old at the time of the interview. He is a high school drop-out with an extensive criminal record. - He was incarcerated as a juvenile and then later as an adult. He served over two years in the Utah State Prison. Subsequent parole violations resulted in more prison time. In sum, Werner has had significant experience with the criminal justice system. Werner does not assert, and we cannot find in the record, any evidence of mental illness or emotional instability that would render him vulnerable to police interrogation tactics. Also, prior to the interview, Detective Peterson had dealt with Werner on numerous occasions in connection with other alleged criminal activities. Essentially, the interview took place between two people who knew each other.

T19 In sum, we are not dealing with a vulnerable defendant, but rather one experienced with the criminal justice system in general, and with Detective Peterson in particular.

B. False Friend Technique

120 This court has previously stated that "[sItanding alone, [the false friend] technique is not sufficiently coercive to produce an involuntary confession, but may be significant in relation to other tactics and factors." State v. Bunting, 2002 UT App 195,% 25, 51 P.3d 37 (quotations and citation omitted). In requesting that we reverse the district court's determination that his confession was voluntary, Werner contends that "[the circumstances in the instant case are identical to the Rettenberger case so far as the coercive effect the false friend technique ... had upon [Werner]." We disagree.

{21 The interrogation transcript in this case reveals that Detective Peterson employed the false friend technique. The following is representative of Detective Peterson's use of the technique:

Peterson: And that's why I come to you. That's why I grabbed this case, because, okay, I know Jason, I know Jason. I'll work that one. Let me get ahold [sic] of Jason and I'll work with him. So that's how everything kind of ended up on my lap you know. If you have questions, or whatever, let's just be open with each other and talk.

And later,

Peterson: Just because this is my job doesn't mean I'm inhuman.... That's why when this case surfaced I said give it to me, I'll go talk to Jason.... That's not Rod the policeman, that's Rod the human. So don't think I'm being insensitive and I'm sarcastic or anything like that. I'm not being that, okay. I'm being frank with you, being honest with you. I'm telling you the way it is.... I understand and know the position that you're in. You're seared, you're worried, You're an ex-con.... Tell me something, Jason. Tell me something that makes it not a first degree. Tell me your side.

¶ 22 In State v. Rettenberger, 1999 UT 80, 984 P.2d 1009, the Utah Supreme Court reversed the district court's denial of the defendant's motion to suppress his confession, concluding that under the totality of the circumstances, police coercion rendered the confession involuntary. See id. at 145. The police in that case employed, among other techniques, the false friend technique to elicit a confession from a mentally-challenged eighteen-year-old defendant. See id. at T 24. The defendant had never previously been arrested or interrogated by policc. See id. at 1 2.

123 At the suppression hearing, expert testimony established that the defendant suffered from Attention Deficit Disorder, a below average 1.Q., and had the maturity level of a fifteen-year-old. See id. at 16. He also showed signs of "depression, anxiety disorder, thought disorder, schizophrenia, and De-pendant Personality Disorder." Id. In addition, the district court found that at the time of arrest and interrogation, the defendant was "under extreme stress and anxiety ... and was afraid of the death penalty." Id. at T7.

124 Noting that the defendant's "interrogation took place in yet a larger context of deception," id. at 1 24, the Rettenberger court held that

[ tlo the extent that [the defendant] suffers from mental disabilities and deficiencies, and to the extent that he believed the officers were protecting his best interests [because of the false friend technique], he was less likely to question the false claims about the evidence against him; was less likely to clearly invoke his right to counsel or to remain silent; was more likely to "parrot" back the details the officers suggested, whether or not they were true; was more likely to place stock in any promises or threats that the officers made, however ambiguous they might be; and was more likely to confess, whether guilty or innocent.

Id. at 1 28.

125 However, in Bunting, where the defendant lacked any "psychological condition [that would] impair his ability to respond to the detective's interrogation tactics," we concluded the "[dlefendant was not susceptible to the false friend technique." 2002 UT App 195 at ¶ 26, 51 P.3d 37. We think this case more closely resembles Bunting.

126 As noted above, at the time of his arrest and interrogation, Werner was twenty-five years old, had an extensive eriminal record, and had served over two years in the Utah State Prison. In an attempt to analogize his mental condition with that of the defendant in Rettenberger, Werner points out that "it was noted in the pre-sentence report ... that [Werner] had learning disabilities, and despite a high IQ., he functioned at below average levels." We fail to see the similarities between Werner and the defendant in Reftemberger. Learning disabilities and below-average levels of functioning do not equate with the kinds of mental disabilities that rendered the defendant in Retten-berger susceptible to the false friend technique.

127 While we agree that the false friend technique can be coercive in some cireum-stances, we conclude it was not in this case.

C. Misrepresentations Regarding Incriminating Evidence

128 Next, Werner contends that his confession was involuntary because Detective Peterson misrepresented the strength and the quantity of evidence the police had gathered against him.

T29 Both federal and Utah cases "have recognized that [a] defendant's will is not overborne simply because he is led to believe that the government's knowledge of his guilt is greater than it actually is." State v. Rettenberger, 1999 UT 80,¶ 20, 984 P.2d 1009 (alteration in original) (quotations and citations omitted); see also Frazier v. Cupp, 394 U.S. 731, 739, 89 S.Ct. 1420, 1425, 22 L.Ed.2d 684 (1969) ("[Whhile relevant, [the police misrepresentations are] insufficient in our view to make this otherwise voluntary confession inadmissible."); United States v. Harris, 914 F.2d 927, 933 (7th Cir.1990) [Tit is well settled that police may use small deceptions while interrogating witnesses."); State v. Galli, 967 P.2d 930, 936 (Utah 1998) ("While the detectives' half-truths regarding the strength of the evidence against [defendant] should not be condoned, we are not convinced that this was sufficient to overcome his free will and spirit." (citing Ledbetter v. Edwards, 35 F.3d 1062, 1070 (6th Cir.1994))). Nonetheless, " 'in certain cases, police misrepresentations may be sufficiently egregious to overcome a defendant's will so as to render a confession involuntary.' " State v. Bunting, 2002 UT App 195,¶ 16, 51 P.3d 37 (quoting Rettenberger, 1999 UT 80 at ¶ 20, 984 P.2d 1009).

T 30 Werner claims coercion resulted when Detective Peterson informed Werner there was "overwhelming evidence against him" and when, on two different occasions during the interview, Detective Peterson told Wer-ner that police were in possession of mall surveillance tapes that contained footage of Werner at the scene. In fact, no such footage existed.

[ 31 We certainly do not condone the video tape hoax. In fact, it is this element which makes this case a close call. However, we note that both references to the nonexistent video tape occurred early in the interview and that Werner's confession did not occur until the latter stages of the questioning, suggesting that the misrepresentations did not overcome Werner's free will and yield a confession.

T32 Furthermore, there was significant other evidence of Werner's guilt, including three eyewitnesses supporting Detective Peterson's claim of "overwhelming" evidence. On the whole, we are not convinced that Detective Peterson's misrepresentation concerning the nonexistent mail video surveillance footage was "sufficiently egregious to overcome [Werner's] will so as to render [his] confession involuntary" in this case. Bunt ing, 2002 UT App 195 at 116, 51 P.3d 37.

D. Denying Access to Telephone and Outside People

133 Werner asks us to consider the potentially coercive effect of Detective Peterson's denials of Werner's requests to speak to his girlfriend, either in person or on the telephone.

[ 34 In State v. Rettenberger, 1999 UT 80, 984 P.2d 1009, our supreme court, in reversing the denial of a motion to suppress his confession, noted that although the defendant "made several requests to call his mother" during an interrogation, "he was not" allowed to "use the telephone" "or to call his mother." Id. at 185. However, this was but one of many "factors ... weigh[ing]l against the State's claim that the confession was voluntary." Id.; cf. State v. Bolsinger, 699 P.2d 1214, 1217-18, 1217 n. 2 (Utah 1985) (finding no coercion where the facts showed that police did not attempt to contact a lawyer for the defendant until an hour after defendant requested one and eventually stopped trying after unsuccessfully trying to contact one lawyer).

'I 35 We do not believe that Detective Peterson's repeated denials of Werner's requests to speak to his girlfriend render involuntary an otherwise voluntary confession.

E. Threats of Harsher Penalties and Promises of Leniency

136 Werner maintains that his confession was involuntarily obtained through police coercion because Detective Peterson threatened Werner with harsher penalties unless he confessed and promised Werner leniency in exchange for his cooperation during the interview.

T37 Our supreme court has held that "[the mere representation to a defendant by officers that they will make known to the prosecutor and to the court that he cooperated with them, ... or appeals to the defendant that full cooperation would be his best course of action, [are] not coercive." State v. Strain, 779 P.2d 221, 225 (Utah 1989). However, the supreme court has also held that "most courts have found a confession involuntary where [there was] a threat to pursue a higher charge if the accused did not confess." Id. at 226; accord State v. Rettenberger, 1999 UT 80,¶ 29, 984 P.2d 1009 ("We have recognized that an interrogation can be impermis-sibly coercive because [it] carried a threat of greater punishment ...." (quotations and citation omitted)).

138 Nonetheless, "the important question . is not whether the ... interview was impermissibly coercive, but whether the coercive [threats] employed by [Detective Peterson] overcame [Werner's] free will, causing him to confess." State v. Mabe, 864 P.2d 890, 893 (Utah 1993).

139 In Strain, in addition to threatening defendant with a first degree murder charge and possible execution if convicted, the police also made the defendant a promise of leniency in the form of a personal guarantee. See 779 P.2d at 226. The Strain court held that the officer "crossed the line when he offered defendant a promise as evidenced by his personal guarantee." Id. at 226.

[ 40 During the interview between Detective Peterson and Werner, the following exchange ensued:

Werner: I think you guys already have the charge. You should just tell me. I think you already know what you're-
Peterson: I do know. I already told you. The county attorney is going to say, Rod, book him on a first degree felony. If Jason wants to play hardball, we'll play hardball.
Werner: You're saying that's what he's going to say.
Peterson: I don't know yet. If we stop right now, if we stop right now, we both walk out that door, it will be a first degree felony, Jason, I guarantee it. I guarantee it because that's all I've got. I only have her side of the story. She's told me Jason committed a first degree felony. That's what she's told me.... If I can't get you to talk to me and tell me your side of the story I'm going to book you on a first degree felony.

(Emphasis added.)

T41 Detective Peterson also insinuated that Werner could obtain leniency in exchange for a confession:

Peterson: Tell me something, Jason. Tell me something that makes it not a first degree. Tell me your side.
Werner: A first or second, it don't matter.
Peterson: Tell me something that makes it not a first or second degree felony. Tell me something-

1 42 We note, however, that like the defendant in State v. Miller, 829 P.2d 132 (Utah Ct.App.1992), Werner "may have actually initiated and solicited the promise[s of leniency,1" id. at 185, by repeatedly asking Detective Peterson how severe the charges were going to be.

1 43 We find troublesome Detective Peterson's threats of more serious charges and inferences of leniency if Werner's side of the story was told. However, under our totality of the cireumstances analysis, they do not render Werner's confession involuntary.

F. Other Factors

[ 44 We note that in the early stages of the interview, Werner denied involvement in the crime over twenty times. However, once he did confess, he did not merely " 'parrot' back" details suggested by Detective Peterson. State v. Rettenberger, 1999 UT 80,¶ 28, 984 P.2d 1009. Instead, Werner added significant details in his confession that only he could have supplied.

[ 45 Finally, "[tlo the extent the trial court has made subsidiary factual findings, ... those findings will not be set aside unless they are clearly erroneous." State v. Mabe, 864 P.2d 890, 892 (Utah 1998). At the suppression hearing, the district court judge orally made the following findings after viewing the videotaped confession:

Judge: This court finds the overall totality of the cireumstances are not impermissi-bly coercive. Specifically, it was not a coercive environment. In fact, to the contrary, this court would find that based upon the videotape[d interview], a review [of] the transeript, that there was mo coercive demeanor used by Detective Peterson. The length of the interview was not overly burdensome. Certainly not compared to those cited in the cases. The interview could have stopped at any time at the request of the defendant. In fact, I thought that the interview was conducted in a [very] humane fashion where that kind of request by the defendant could have been made at any time and presumably been honored.
The resulting statement was not based upon promises, guarantees or threats. Nor did it follow any suggestions made by Detective Peterson. Even after the first admission by the defendant that he was there, that he in fact did not intend to harm the victim in any fashion, Mr. Peterson suggested perhaps some see-narios, even those were not followed in the resulting colloquy. The statements made by the defendant were voluntarily initiated by himself relative to that.
Overall the interview was not confrontational In fact, I thought the overall demeanor was one of mild urging. I didn't find any sarcasm. I thought the interview was conducted in a warm and humane fashion, readily distinguishable from both Strain and Mabe in a number of aspects.

These subsidiary findings made after the district court judge viewed the entire videotape of the interrogation help to persuade us that Werner's confession was voluntary.

CONCLUSION

T 46 At the time of his arrest, Werner was twenty-five years old, had an extensive criminal record, and had been incarcerated both as a juvenile and as an adult. Werner was experienced in dealing with the criminal justice system and was already acquainted with the interviewer, Detective Peterson. Prior to questioning, Werner received an adequate Miranda warning. While Detective Peterson did employ various methods of deception and other inappropriate interrogation tactics, Werner's will was not overcome and his confession provided information that only Wer-ner could have known. Viewing all of the foregoing under the totality of the circumstances, we conclude Werner's confession was voluntary.

[ 47 Affirmed.

« 48 WE CONCUR: PAMELA T. GREENWOOD and GREGORY K. ORME, Judges.

      1. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . In support of this assertion, the State cites Neely v. Bennett, 2002 UT App 189,¶ 11, 51 P.3d 724, cert. denied, 59 P.3d 603 (Utah 2002), and rule 24(a)(9) of the Utah Rules of Appellate Procedure. Neither is helpful. Rule 24(a)(9) merely states the now axiomatic principle in Utah law that "[a] party challenging a fact finding fon appeal) must first marshal all record evidence that supports the challenged finding." Utah R.App. P. 24(a)(9) (emphasis added). Neely is a civil case involving a personal injury suit arising from an automobile accident. See 2002 UT App 189 at ¶¶ 3-7, 51 P.3d 724. In that case, we held that "[when an appellant challenges a trial court's ruling concerning either a motion for a directed verdict, or a motion for additur or new trial, the appellant is obligated to first 'marshal the evidence in support of the verdict and then demonstrate that the evidence is insufficient when viewed in the light most favorable to the verdict. " Id. at ¶ 11 (quoting Brewer v. Denver & Rio Grande W.R.R., 2001 UT 77,¶ 33, 31 P.3d 557). Neither of these authorities support the State's assertion that a criminal appellant's challenge of a district court's determination of the voluntariness of a confession requires the appellant to marshal the evidence.

      . On a related note, it is well-settled law that "[in the face of a challenge to the voluntariness of a statement or confession, it is incumbent upon the prosecution to demonstrate by a preponderance of the evidence that the statement was made voluntarily based upon the totality of the circumstances." State v. Allen, 839 P.2d 291, 300 (Utah 1992); accord State v. Rettenberger, 1999 UT 80,¶ 45, 984 P.2d 1009. If an appellant who challenges the district court's voluntariness determination on appeal is forced to meet the marshaling requirement in making that challenge, the burden to prove voluntariness based upon the totality of the circumstances is imper-missibly shifted from the State to the challenger.

      . Detective Peterson explained at trial that during the interview he had placed a blank video tape marked "Mall Security of Jason in the Parking Lot" in the interview room "to see what [Werner's] reaction would be" and to get "an idea as to whether or not we for sure had the right individual."


author: PER CURIAM:

text:
    2003 UT App 271
    SALT LAKE CITY, Plaintiff and Appellant, v. Keith ROBERTS, Defendant and Appellee.
    No. 20030095-CA.
    Court of Appeals of Utah.
    July 25, 2003.

      Simarjit S. Gill and Augustus Chin, Salt Lake City, for Appellant.
    W. Andrew McCullough, Midvale, for Ap-pellee.
    Before Judges DAVIS, GREENWOOD, and THORNE.
   MEMORANDUM DECISION

PER CURIAM:

$1 Salt Lake City appeals the district court's dismissal entered following remand from the Utah Supreme Court pursuant to its decision on certiorari from this court. See Salt Lake City v. Roberts, 2002 UT 30, 44 P.3d 767. Appellee Keith Roberts moves to dismiss the appeal on grounds that it is taken from an acquittal that may not be appealed by the prosecution.

12 Utah Code Ann. § 77-182-1(2)(a) (1999) allows the prosecution to appeal from "a final judgment of dismissal," but "it does not authorize the state to appeal an acquittal since doing so would violate the rule against double jeopardy." State v. Jackson, 857 P.2d 267, 268-69 (Utah Ct.App.1993). "The label attached to a ruling by a trial judge is not determinative of whether the termination of a criminal prosecution is an acquittal." State v. Musselman, 667 P.2d 1061, 1064 (Utah 1983). "A ruling that constitutes a factual resolution in favor of the defendant on one or more of the elements of the offense is an acquittal." Id.; see also Jackson, 857 P.2d at 269 (holding ruling labeled a "dismissal" was an acquittal because it was based on determination evidence was insufficient to warrant conviction); State v. Chugg, 749 P.2d 1279, 1280 (Utah Ct.App.1988) (holding dismissal for failure to prove an element of charge was not appealable). Similarly, in State v. Amador, 804 P.2d 1233 (Utah Ct.App.1990), we held that the term "final judgment of dismissal" refers to "dismissals where the court construed the applicable law before ruling on the sufficiency of the evidence to convict and before a final judgment." Id. at 1235.

13 Following a limited remand from the Utah Supreme Court, the district court reviewed the evidence at the bench trial to determine whether or not Roberts's expectation of privacy for the sexual conduct was reasonably justified. See Roberts, 2002 UT 30 at ¶ 31, 44 P.3d 767. The district court found "that Defendant's expectation of privacy for the conduct ... was reasonably justified," and dismissed the case "on the merits." The dismissal "constitutes a factual resolution in favor of the defendant" on an element of the offense and constitutes an acquittal. Musselman, 667 P.2d at 1064. Because the district court's "dismissal" constitutes an acquittal that is not appealable under section Ti-182-1(2)(a), the appeal must be dismissed.

T4 Salt Lake City cites no persuasive authority for an exception to the statutory limitation if the prosecution seeks to challenge an acquittal following remand by claiming that the trial court failed to correctly apply the instructions of the appellate court. In sum, it appears that the city simply disagrees with the district court's application of the law to the evidence.

5 Accordingly, we dismiss the appeal because it is not allowed by Utah Code Ann. § T7-18a-1.


author: HILL, Chief Justice.

text:
    2003 WY 109
    Margot BURNHAM, Appellant (Defendant), v. Richard A. COFFINBERRY, as Trustee of the Richard A. Coffinberry Living Trust, dated June 8, 1995, Appellee (Plaintiff).
    No. 02-209.
    Supreme Court of Wyoming.
    Sept. 8, 2003.

      Representing Appellant: Edward G. Luhm of Seott, Shelledy and Lubhm, P.C., Worland, Wyoming.
    Representing Appellee: Jerry D. Williams of Williams Law Office, Thermopolis, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

[T1] Appellant, Margot Burnham (Burn-ham), asserts that the district court erred in failing to grant her motion to dismiss this action, or to have stayed these proceedings pending resolution of related litigation between the parties in California. It is also her contention that the district court erred in applying the law of Wyoming to this matter rather than the law of California as it relates to the dissolution of a relationship between unmarried persons who cohabit and commingle their assets. Appellee, Richard A. Cof-finberry as Trustee of the Richard A. Coffin-berry Living Trust (Coffinberry), counters that the district court's orders were proper in all respects. We will affirm.

ISSUES

[12] Burnham advances these issues:

1. Whether the district court erred by failing to grant [Burnham's] motion to dismiss or stay this litigation in light of the existence of a previously commenced foreign action which placed into controversy properties owned by the parties and proceeds realized from the sale and refinance ing secured therefrom, including real property located in Hot Springs County, Wyoming, which are also the subject matter of [Coffinberry's] quiet title action herein?
2. Whether the district court erroneously applied the law of this State as it pertains to actions between unmarried persons who cohabit and commingle assets in granting [Coffinberry's] motions for summary judgment?

Coffinberry approaches the issues somewhat differently:

1. Did the District Court properly apply Wyoming statutes and case law in denying [Burnham's] Motions to Dismiss pursuant to W.R.C.P. 12(b)(8)? >
2. Did the trial court properly grant summary judgment?
8. Does the Minute Order and Statement of Decision, dated September 25, 2002, of the Superior Court of the State of California, County of Orange, in Burnham v. Coffinberry, Case No. 00 CC 10796 render [Burnham's] appeal moot?

FACTS

[13] The controversy at hand arose out of a close personal and business relationship between Burnham and Coffinberry which endured from 1979 until 1998. Burnham contended that she and Coffinberry jointly acquired real property both in California and in Wyoming (as well as other states) and that they cohabited in their principal residence during the duration of their relationship. They never married. Burnham contended that the Wyoming properties were acquired for their mutual benefit and were purchased, in part, with funds obtained through a series of refinances of their principal residence.

[T4] On September 8, 2000, Burnham filed an action in California, seeking to divide property jointly owned by her and Coffinber-ry, including the Wyoming property at issue here. On September 21, 2000, Coffinberry filed a complaint in the Wyoming district court, seeking to quiet title to all of the properties located in Hot Springs County in the name of his living trust. Burnham answered that complaint and included in her answer a motion to dismiss pursuant to W.R.C.P. 12(b)(8). Burnham contended that it was necessary for the California court to have jurisdiction over the Wyoming property so that it could "balance accounts" between the parties. Eventually, the district court denied Burnham's motion to dismiss and entered summary judgment in Coffinberry's favor with respect to all of the Wyoming properties. With respect to California property, those matters were decided by the California courts, largely in favor of Burnham.

DISCUSSION

Motion to Dismiss

[15] We have recognized that a district court's ruling on a matter related to venue is measured by the abuse of discretion standard. Rivermeadows, Inc. v. Zwaanshoek Holding, 761 P.2d 662, 668 (Wyo.1988); and see SPS v. Thunder Basin Coal Company, 978 P.2d 1138, 1141, 1144-46 (Wyo.1999). Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Pasenelli v. Pasenelli, 2002 WY 159, ¶ 11, 57 P.3d 324, 329, ¶ 11 (citing Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998)). We will enlarge our analysis somewhat by quoting this discussion from Professors Wright and Miller:

On a motion under Rule 12(b)(8), facts must be shown that will defeat plaintiffs assertion of venue. A number of courts have concluded that the burden of doing so is on defendant, since venue is a "personal privilege" and a lack of venue should be established by the party asserting it. On the other hand, several courts have imposed the burden on plaintiff in keeping with the rule applied in the context of jurisdiction defenses. The latter view seems correct inasmuch as it is plaintiff's obligation to institute his action in a permissible forum, both in terms of jurisdiction and venue. There seems to be little justification for distinguishing between the two in determining the placing of the burden. If a defect in venue is not demonstrated, the court will deny the motion to dismiss. However, motions under 12(b)@8) may also be denied or held in abeyance whenever the court determines that further information is needed in order to establish clearly whether venue is proper.

5A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure Civil § 1352, at 263-65 (1990).

[T6] Burnham first contends that the district court abused its discretion in denying her motion to dismiss premised on W.R.C.P. 12(b)(@8). That rule provides:

(b) How Presented. -Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion: (1) lack of jurisdiction over the subject matter; (2) lack of jurisdiction over the person; (8) improper venue; (4) insufficiency of process; (5) insufficiency of service of process; (6) failure to state a claim upon which relief can be granted; (7) failure to join a party under Rule 19. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert at the trial any defense in law or fact to that claim for relief. If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

(Emphasis added.)

[T7] Burnham contends that the Wyoming district court should have dismissed the Wyoming action, or in the alternative stayed it, pending an unraveling of the parties' personal and business relationship in California. The argument championed by Burnham tends to confuse the concepts of jurisdiction, venue, and forum non conveniens in this regard, as well as the concepts of civil actions generally and matters related to the dissolution of marriage more specifically. Burn-ham, who is a resident of California, filed a civil action in California purporting to be in the nature of dissolution and winding up of a business relationship, as well as a personal relationship. It is her contention that the Wyoming properties at issue here are a part of both the business and personal relationship. Of course, California appears to be the proper forum for that action both in terms of jurisdiction as well as venue. Coffinberry is a resident of Wyoming and he has substantial real estate holdings in Hot Springs County. He filed a complaint in Wyoming to quiet title to that property, at least in part because Burnham claimed that the Wyoming property should be divided between them in the California action. Wyo. Stat. Ann. § 1-32-201 (LexisNexis 2008) provides:

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

Although Coffinberry's action does not fit squarely into the provisions of Wyoming quiet title statutes, Burnham does not question their applicability and Coffinberry did, in essence, contend that Burnham's California litigation amounted to a denial of clear title in Coffinberry. See Wyo. Stat. Ann. § 1-82-204 (LexisNexis 2008). As to one of the properties at issue, Burnham and Coffinber-ry were cotenants and Burnham had deeded several other properties at issue to Coffin-berry. Coffinberry purchased the remainder from third parties Within the chapter of Wyoming statutes concerned with venue, Wyo. Stat. Ann. § 1-5-101 (LexisNexis 2008) provides:

(a) Actions for the following causes shall be brought in the county in which the subject of the action is situate, except as provided in W.S. 1-5-102 and 1-5-1083:
(i) For the recovery of real property, or of an estate or interest therein;
(M) For the partition of real property;
(iii) For the sale of real property under a mortgage, lien or other encumbrance or charge.

(Emphasis added.) Also see Rivermeadows, Inc. v. Zwaanshoek Holding and Financiering, B.V., 761 P.2d 662, 667-68 (Wyo.1988); Hronek v. St. Joseph's Children's Home, 866 P.2d 1305, 1209-10 (Wyo.1994).

[ 18] Burnham more or less concedes that the district court had jurisdiction and that venue was proper in Hot Springs County. The real thrust of her argument is that the district court should have declined to exercise jurisdiction or venue or both, or that the district court should have stayed the proceedings until the California courts could act on Burnham's suit there. To the extent Burnham's argument is based in the concept of forum non convemiens, we note that West Texas Utilities Company v. Exxon Coal USA, Inc., 807 P.2d 932, 935 (Wyo.1991), holds that such a question is also addressed to the sound discretion of the trial court. The underlying basis for Burnham's contentions is that what California was undertaking to do is what amounts to a divorce in Wyoming, and that Wyoming recognizes that personal relationships can have business aspects that may be resolved in the courts. See Kinnison v. Kinnison, 627 P.2d 594, 595-96 (Wyo.1981) (and cases cited therein) (contract to settle dispute between unmarried man and woman who cohabited enforced; case did not involve quantum meruit and/or unjust enrichment); Bereman v. Bereman, 645 P.2d 1155, 1158-60 (Wyo.1982) (distinguishing Kinnison). However, Burnham fails to cite pertinent authority or to provide a cogent argument that the exercise of discretion by the district court in these cireum-stances was an abuse of discretion or that permitting the properly venued quiet title action to go forward operated as an injustice to Burnham. For these reasons we need not consider her contentions in that regard further. See Shumway v. Worthey, 2001 WY 130, ¶ 9, 37 P.3d 361, ¶ 9 (Wyo.2001).

Was Summary Judgment Proper

[19] When we review a summary judgment, we have before us the same materials as did the district court, and we follow the same standards which applied to the proceedings below. The propriety of granting a motion for summary judgment depends upon the correctness of the dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. Reed v. Miles Land and Livestock Company, 2001 WY 16, ¶ 9, 18 P.3d 1161, ¶ 9 (Wyo.2001). A genuine issue of material fact exists when a disputed fact, if proven, would have the effect of establishing or refuting an essential element of an asserted cause of action or defense. We, of course, examine the record from a vantage point most favorable to that party who opposed the motion, affording to that party the benefit of all favorable inferences that fairly may be drawn from the record. Scherer Construction, LLC v. Hedquist Construction, Inc., 2001 WY 23, ¶ 15, 18 P.3d 645, ¶ 15 (Wyo.2001); Central Wyoming Medical Laboratory, LLC v. Medical Testing Lab, Inc., 2002 WY 47, ¶ 15, 43 P.3d 121, ¶ 15 (Wyo.2002).

[110] Our disposition of this issue can be quite brief. Burnham contends that the trial court "erroneously ruled as a matter of law that there exists no remedy at law or equity for an unmarried cohabitant who commingled her assets with the other cohabitant's even when the other cohabitant unjustly enriched himself through the use of those assets." - No such proposition was offered to the district court for its resolution, nor did the district court make a decision to that effect,. The district court did decide that the properties at issue in this case were titled in Coffinberry's name and, as between him and Burnham, the title to those properties should be quieted in him. Summary judgment is governed by W.R.C.P. 56, which provides:

(a) For claimant.-A party seeking to recover upon a claim, counterclaim, or cross-claim or to obtain a declaratory judgment may, at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party, move with or without supporting affidavits for a summary judgment in the party's favor upon all or any part thereof.
(b) For defending party -A party against whom a claim, counterclaim, or cross-claim is asserted or a declaratory judgment is sought may, at any time, move with or without supporting affidavits for a summary judgment in the party's favor as to all or any part thereof. (c) Motion and proceedings therseon.-Unless the court otherwise orders, the motion and any response and other papers relating thereto shall be served pursuant to Rule 6(c). The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of lability alone although there is a genuine issue as to the amount of damages.
(d) Case not fully adjudicated on motion. If on motion under this rule judgment is not rendered upon the whole case or for all the relief asked and a trial is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall if practicable ascertain what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. Upon the trial of the action the facts so specified shall be deemed established, and the trial shall be conducted accordingly.
(e) Form of affidavits; further testimo-ry; defense required.-SBupporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule an adverse party may not rest upon the mere allegations or denials of the adverse party's pleading, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party.
(f) When affidavits are unavailable.Should it appear from the affidavits of a party opposing the motion that the party cannot for reasons stated present by affidavit facts essential to justify the party's opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
(g) Affidavits made in bad faith-Should it appear to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorney's fees, and any offending party or attorney may be adjudged guilty of contempt.

(Emphasis added.)

[T11] Coffinberry brought forward doeu-mentary evidence that proved he was the owner of the disputed property. Burnham did not come forward with any specific facts to dispute the recorded deeds that proved Coffinberry's case. - Burnham's conclusory statements went to an entirely different case, a matter which was being pursued in California and which she had not pleaded before the courts of Wyoming. She "concluded" that the parties had a "relationship," but did not bring forward the requisite facts underlying that assertion so as to overcome Coffinber-ry's motion for summary judgment. The same is true with respect to unjust enrichment, quantum meruit, and her other claims-she used the magic words, but neglected to specify in an affidavit, or deposition, or otherwise, the underlying facts which might have given life to those claims.

Is this Appeal Moot

[T12]l Coffinberry contends that this appeal is moot because the California courts have now ruled on his claims there and they reached virtually the same result as did the Wyoming courts. Coffinberry does not present pertinent authority or cogent argument to convince us that this appeal is moot. Therefore, we decline to address that issue further.

CONCLUSION

[113] The district court's order denying Burnham's motion to dismiss is affirmed, as are the district court's orders granting summary judgment in favor of Coffinberry.


text:
    2003 WY 111
    WYOMING BANK AND TRUST, a Wyoming Corporation, as Assignee-Lienor of certain Mechanics Liens, and as Mortgagee under certain Mortgages, Appellant (Plaintiff), v. Janet HAUGHT, an individual, Appellee (Defendant).
    No. 02-115.
    Supreme Court of Wyoming.
    Sept. 9, 2003.
    Rehearing Denied Oct. 7, 2003.

      See also 7 P.3d 906.
    Representing Appellant: Dale W. Cottam and Kathleen C. Yarger of Hirst & Apple-gate, P.C., Cheyenne, Wyoming. Argument by Mr. Cottam.
    Representing Appellee: Michael R. O'Donnell and Rhonda Sigrist Woodard of Woodard & O'Donnell, P.C., Cheyenne, Wyoming. Argument by Ms. Woodard.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

[11] Wyoming Bank and Trust (the Bank) appeals an order of the district court awarding priority to a judgment lien ereditor, Janet Haught (Haught), over its mortgages on two tracts of land owned by Joshua Guetz-kow and used as collateral for a series of loans to GCI, Inc. We conclude that the Bank was not on inquiry notice of any claims by Haught to the property, reverse the district court's decision, and remand to the district court for consideration of the effect of Wyo. Stat. Ann. $ 1-17-8302 (Michie 1997) (repealed in part by Wyo. Sess. Laws 1999, ch. 190, see. 1) on Haught's claim.

ISSUES

[¥2] In its appeal, the Bank states four issues:

Can a mortgagee be put on inquiry notice of a fraudulent conveyance when there is no indication of any title defects in the real estate records and the mortgagee has no actual knowledge of any adverse claim to the real estate?
When a judgment creditor voluntarily releases her judgment liens affecting real estate, has she waived her right to claim priority over a mortgagee who has properly recorded its mortgages?
Can a lender-mortgagee be charged with inquiry notice when such lender-mortgagee conformed to banking industry standards when investigating and extending the loans in connection with the mortgages?
Can a lender-mortgagee who has lent $420,000 for the improvement of real estate be denied the value of the improvements it funded, thus allowing a judgment creditor a windfall?

Haught phrases the issues before us in two, succinet questions:

1. Did the Judgment of the District Court correctly apply the standards of inquiry notice?
2, Are the factual findings of the District Court supported by substantial evidence?

FACTS

[ 13] The dispute in this case is over which creditor, the Bank or Haught, should be granted priority on their liens against two parcels (Tracts 3 and 4) of property formerly owned by GCI, a company owned and operated by Gerald Guetzkow and his son, Joshua. In 1996, Haught obtained a default judgment for $55,591.83 against GCI based on claims that GCI had negligently constructed her house. Haught agreed to have the default judgment vacated in exchange for a lien against Tracts 3 and 4, which were located in a subdivision being developed by GCI. On June 16, 1997, the parties entered into a settlement agreement wherein - Haught agreed to release her liens, and GCI agreed to repair the construction defects in her house. On June 2, 1998, Haught filed suit against GCI alleging that it failed to perform under the terms of the settlement agreement. Twenty-four days after Haught's suit was filed, Gerald Guetzkow had GCI transfer ownership of Tracts 8 and 4 to his 18-year-old son, Joshua Guetzkow. After a trial, Haught obtained a judgment against GCI for $66,863.36, which was affirmed by this Court on appeal. See G.C.I., Inc. v. Haught, 7 P.3d 906 (Wyo.2000). With her trial judgment in hand, Haught filed suit against GCI and the Guetzkows in November of 1999 seeking to set aside the transfer of Tracts 8 and 4 as fraudulent.

[14] While the litigation with Haught was proceeding, GCI continued to develop its subdivision. To finance its business, GCI entered into a relationship with the Bank in early March of 1998. GCI initially obtained two loans from the Bank on a house that they had constructed in the subdivision because they had outstanding bills that needed to be paid prior to the scheduled closing. The Bank learned during this period that GCI had transferred the ownership of all of its property, including Tracts 3 and 4, to Joshua Guetzkow. Gerald Guetzkow informed the Bank loan officer that the purpose of the transfer, along with Joshua Gu-etzkow's appointment as president of GCI, was to get his son started in the construction business. GCI repaid these loans when the property was sold.

[ T5] Beginning in August of 1998, the Bank granted a series of mortgages to GCI on Tracts 3 and 4: $200,000 on Tract 8 recorded on September 83, 1998; $60,000 on Tract 4 recorded on January 29, 1999; an additional $40,000 on Tract 3 and another $40,000 on Tract 4 on March 26, 1999; and an additional $50,000 on Tract 4 recorded on June 1, 1999. On June 8, 1999, the Bank loaned a final $20,000 and consolidated all the other mortgages on Tracts 3 and 4 into a single loan. The final mortgage amounted to $410,000 and was recorded on June 10, 1999. The Bank issued the loans based upon a financial statement filled out by Gerald Gu-etzkow and a commitment from First American Title Insurance Company that showed Joshua Guetzkow as the owner and that there were no liens against the property.

[ 16] GCI defaulted on its mortgage, and the Bank filed this action to foreclose on August 16, 2000. Haught was named as defendant on the basis of her status as a judgment creditor of GCI. Haught's action against GCI and the Guetzkows for fraudulent conveyance was consolidated into the Bank's foreclosure action. In claiming that the Bank's mortgages were not entitled to priority, Haught cited a series of facts that she contended should have given a reasonable lender notice of her adverse claim against GCI and the Guetzkows: (1) tax liens against Gerald Guetzkow; (2) Gerald Guetz-kow's statement to the effect that he had structured GCI to avoid ereditors (specifically, Gerald Guetzkow referred to his wife with whom he was involved in a contested divorce at the time); (8) the unprofitable nature of GCI; (4) the transfer of Tracts 3 and 4 to Gerald Guetzkow's 18 year old son; (5) the use of the transferred property as security for loans to GCI; (6) the lack of truthfulness exhibited by Gerald Guetzkow; and (7) the failure of the Bank to require Gerald Guetz-kow to fully complete the Bank's financial disclosure forms before making the loans. Haught contended that all of these facts, which were known to the Bank at the time it made the loans, taken together should have placed it on notice to inquire further into the finances of GCI and the Guetzkows. Any reasonable inquiry, Haught argued, would have disclosed her pending litigation against GCI and the Guetzkows filed in June of 1998.

[ T7] The district court agreed with Haught:

7. The facts recited above, and known by the Bank at the time it was preparing to loan $200,000 to GCI, Inc., required the Bank to inquire further into the financial condition of GCI, Inc., as well as Gerald and Joshua Guetzkow. The Bank chose not to do so. In fact, the Bank consciously turned away from the facts of the situation and attempted to remain ignorant of what it might learn. Standing alone, the fact of property being transferred within a family may not be enough to require further inquiry. Standing alone, the fact that Gerald Guetzkow had prior financial difficulties or that his corporation had claims against it may not be enough to require further inquiry. However, the combination of all of the facts known by the Bank (tax liens, corporate structure created to avoid creditors, unprofitable corporation, sudden transfers of valuable assets to an 18 year old son of the individual representing the corporation, substantial loans using the suddenly transferred assets as security, lack of truthfulness by Gerald Guetz-kow and lack of diligence by the Bank in obtaining standard information) required the Bank to inquire further.
8. It is clear that had the Bank made even a limited inquiry into the financial condition of GCI, Inc. and the Guetzkows in the summer of 1998, it would have learned of Janet Haught's pending litigation and of the clearly questionable transfer of assets from GCI, Ine. to 18 year old Joshua Guetzkow. Such an inquiry is reasonable and, it is clear from the evidence, would have precluded the Bank from loaning money to GCI, Inc. without first addressing the claims of Ms. Haught.
9. - While record title standing alone would show title vested in Joshua Guetzkow without infirmity, the Bank was in possession of knowledge which clearly indicated that this record title may be part of a scheme to defraud creditors. This additional knowledge possessed by the Bank is what gives rise to the duty to further inquire. This information would excite the suspicion of an ordinary prudent person. It is, in fact, clear and convincing evidence of fraud which was brought home to the Bank in no uncertain manner. The Bank consciously turned away from the information and chose to remain ignorant of what the necessities of the situation required. This deliberate refusal to make reasonable inquiry charges the Bank with the facts which would have been revealed.
10. The facts which would have been revealed by reasonable inquiry include, among others, the fraudulent nature of the transfer of Tracts 8 and 4, GCI Subdivision from GCI, Inc. to Joshua Guetzkow. Reasonable inquiry would have revealed the fraudulent transfer either by proper inquiry of Gerald Guetzkow based upon the standard forms used by the Bank in lending money, or by a more thorough search of the public records, particularly local Court records, to determine if creditors|'] claims were being defeated by the transfers. The Bank is charged with knowledge of these fraudulent transfers.

The district court established priority for Haught's judgment lien over the Bank's mortgages on Tracts 3 and 4. The Bank has appealed.

STANDARD OF REVIEW

[§¥8] When a trial court has made express findings of fact and conclusions of law in a bench trial, we review the factual determinations under the clearly erroneous standard and the legal conclusions de novo. State v. Campbell County School District, 2001 WY 19, ¶ 41, 19 P.3d 518, ¶ 41, (Wyo.2001) (quoting Rennard v. Vollmar, 977 P.2d 1277, 1279 (Wyo0.1999)). "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." Campbell County School District, ¶ 41 (citing Hopper v. All Pet Animal Clinic, Inc., 861 P.2d 531, 538 (Wyo.1993)). In the alternative: "[A] determination that a finding is against the great weight of the evidence means a finding will be set aside even if supported by substantial evidence." Id.

Davis v. Chadwick, 2002 WY 157, ¶ 8, 55 P.3d 1267, ¶ 8 (Wyo.2002). If the district court's conclusions of law are in accordance with law, we will affirm it; if not, then we will correct it. Roberts v. Estate of Randall, 2002 WY 115, ¶ 11, 51 P.3d 204, ¶ 11 (Wyo.2002).

DISCUSSION

[ 19] A mortgagee is considered to be a purchaser entitled to bona fide purchaser protection. First Interstate Bank v. First Wyoming Bank, 762 P.2d 379, 382 (Wyo.1988). In order to attain bona fide purchaser status, the burden is on the purchaser to demonstrate that he is: (1) a purchaser in good faith; (2) for valuable consideration (not a gift) (8) with no actual, constructive, or inquiry notice of any alleged or real infirmities in the title; and (4) prejudiced by cancellation or reformation of the instrument. Id. (citing Crompton v. Bruce, 669 P.2d 930, 935 (Wyo.1983)).

[ ¥10] The question in this case is whether or not the Bank was on notice of an alleged or real infirmity in the title to Tracts 3 and 4. Actual notice is knowledge of another purchaser's claim of interest. 14 Richard Roy Powell on Real Property § (Michael Allan Wolf, ed.2008). Constructive or record notice is notice of all properly recorded claims and is inferred as a matter of law. Id., at § 82.02[1][d][ii]. There is no claim that the Bank had actual notice or that the title record disclosed Haught's claim. The focus here is on inquiry notice, which we have defined as "knowledge of facts so informing that a reasonably cautious person would be prompted to inquire further." Bummer v. Collier, 864 P.2d 453, 458 (Wyo.1993) (quoting Miller v. Alexander, 13 Kan.App.2d 543, 775 P.2d 198, 204 (1989)). A leading authority has described the concept in this way:

[iii] Inquiry Notice.
Inquiry notice, as used herein, arises from a legal inference. A subsequent purchaser may have actual (or even constructive) notice of some fact. However, that fact is not that another person has a claim to the property. Instead, the notice of some apparently extrancous fact. However, it is a fact that is sufficiently "curious" or "suspicious," according to normal human experience, that the purchaser should, as a matter of law, make an investigation into it. If, upon making the investigation into this first fact a second fact, namely that another person has a claim to the title of the property, is revealed, then the purchaser is considered to have inquiry notice of the claim itself. In other words, because of the nature of the first fact, of which the purchaser has actual or constructive notice, a rebuttable inference is made that the purchaser has notice of the second fact. However, if a reasonable inquiry would not reveal the second fact, then the inference is rebutted.
Because this notice is based upon a legal inference, the purchaser cannot avoid notice of the second fact by merely failing to make the inquiry. The rule is often stated that when the facts suffice to impose the duty of investigation, the purchaser is charged with notice of what a proper investigation would have revealed, whether the investigation is made or not. Ignoring this principle quickly renders the doctrine of inquiry useless. However, if the search, even though not conducted, was certain to be futile, no notice should be imputed. This statement is consistent with the prior principle, because the fact that the search would be futile indicates that a reasonable inquiry would have revealed no information that could be charged to the purchaser. Perhaps a better title for this form of notice, as defined here, would be inferred notice, or more specifically, notice inferred from secondary facts. [Emphasis in original.]
The last two subsections noted that a person who has actual or constructive notice of a particular claim may have an obligation to inquire into the evidence to ascertain the validity of the claim. In contrast, a person with inquiry notice or inferred notice does not have notice of the claim itself; she merely has notice of some extraneous or secondary fact. Inquiry is necessary to disclose whether any claim exists. If she ascertains that a claim exists, then the purchaser is obligated to further investigate the evidence to determine the validity of the claim. This two-step process of inquiry is quite different from the one-step inquiry into the validity of a claim that may be necessary for actual or constructive notice.
With inquiry notice, the purchaser must watch for those "curious" or "suspicious" facts that give her notice that she should inquire further. Exactly how inquisitive or distrustful a purchaser must be has been the subject of considerable debate. Professor Philbrick has asserted, in an extensive argument, that the standard should be reasonableness from the perspective of the ordinary person purchasing real estate in the purchaser's situation at the time of the purchase. This means that a court should find an obligation to inquire only from those extraneous or secondary facts that, by ordinary human experience, suggest a genuine potential for a defect. In addition, the extent of the inquiry necessary to satisfy the burden of investigation must be governed by some standard of reasonableness. A more exacting standard would give unwarranted protection to prior unrecorded interests at the expense of subsequent purchasers, contrary to the general purpose of the recording acts to protect a subsequent purchaser from an unrecorded prior interest.

14 Powell on Real Property, § 82.02[1][d][iii] (footnotes omitted). Inquiry notice, then, has two parts: (1) extraneous or secondary facts that suggest a genuine potential for a title defect; and (2) a reasonable inquiry based on the existence of those facts would disclose a claim by another person to the title of the property. - However, notice will not be imputed to a purchaser if a reasonable inquiry would not disclose a claim to the property.

[T11] In this case, the district court held that various facts known to the Bank suggested that GCI and the Guetzkows were engaged in fraud and that a reasonable inquiry would have disclosed Haught's claim. We conclude that the district court erred by charging the Bank with inquiry notice. The record does not support the district court's conclusion that a reasonable inquiry would have disclosed any claim by Haught to the title of Tracts 3 and 4.

[112] At the time the Bank initially issued its first mortgage on Tract 3, Haught had already filed her action against GCI for breach of the settlement agreement. That action did not assert any claim against Tracts 3 and 4. Haught obtained and recorded her monetary judgment against GCI on June 16, 1999, six days after the Bank had recorded the final, consolidated mortgage on Tracts 8 and 4. At no time during the period when the Bank was issuing the mortgages on Tracts 3 and 4 was there an assertion by Haught of a claim against those properties. Any reasonable inquiry by the Bank would not have disclosed any defect to the title to Tracts 3 and 4.

[ 113] Haught was not without means for alerting third parties to any claims that she may have had against Tracts 3 and 4. Under Wyoming law, Haught could have filed a notice of lis pendens. See Wyo. Stat,. Ann. §§ 1-6-106 to 111 (LexisNexis 2008). The very purpose of a notice of lis pendens is to "warn all persons that certain property is the subject matter of litigation, and that any interests acquired during the pendency of the suit are subject to its outcome. The notice is for the purpose of preserving rights pending litigations." Black's Law Dictionary 947 (7th ed.1999). A common type of the litigation that triggers the lis pendens doctrine includes actions to impress a lien on specific property for the payment of a debt. 14 Powell on Real Property, § 82A.02{4][al. Absent a notice of lis pendens, Haught's suit against GCI for breach of the settlement agreement did not constitute a claim against Tracts 3 and 4.

[114] In her brief, Haught stresses that the Bank should have been on notice that the transfer of Tracts 3 and 4 to Joshua Guetzkow was fraudulent. - However, that fact would only trigger the duty to investigate. For a purchaser to be charged with inquiry notice, a reasonable investigation must disclose a claim to the title of the property. - Under these - circumstances, Haught had, at most, a potential claim on GCI's property through a judgment lien. A possibility or probability is not sufficient to impute inquiry notice on a purchaser:

[ Inquiry notice should be held to exist only when the purchaser has such information as must, in the court's opinion, have led him by reasonable investigation to "full information," to "a complete knowledge of all matters." _... [The purchaser should have not merely knowledge of the existence of a prior conveyance, but such appreciation of it as a superior title as can fairly be attributed to him on the issue of good faith ... ultimate ascertainable fact that bars bona fides cannot be merely such as might deter a reasonably prudent man from proceeding with a purchase. It is not a defensible use of the recording acts to bar good faith by notice of mere possibilities, or even probabilities, of an outstanding claim. It is, on the contrary, the duty of the courts to divest the earlier unrecorded title unless inquiry notice is truly the equivalent of record notice. It is not enough to confront him with the legal problem, the solution of which by a court perhaps few could predict. [Italics in original; bold supplied.]

14 - Powell - on - Real Property, - at § 82.02[1][dl[fii] fn. 116 (quoting Philbrick, Iimits of Record Search and Therefore of Notice (pts.1-8), 98 U. Pa. L.Rev. 125 at 271 (1944-45)). The Bank's knowledge of the fraudulent nature of the transfer of the property from GCI to Joshua Guetzkow is not sufficient by itself to impute inquiry notice because the ultimate question here is not the wisdom of the Bank's business decision to lend money to GCI; it is whether a reasonable investigation would have disclosed a claim by Haught to the title to Tracts 3 and 4. There is no evidence that a reasonable investigation would have disclosed to the Bank that Haught had a claim; therefore, inquiry notice should not have been imputed. The district court's decision is reversed.

[ 115] At the time Haught filed her action against GCI and the Guetzkows in June of 1998, Wyo. Stat. Ann. § 1-17-302, read:

The lands and tenements within the county in which judgment is entered are bound for the satisfaction thereof from the first day of the term at which judgment is rendered, but judgments by confession and judgments rendered at the same term in which the action is commenced shall bind the lands only from the day on which the judgments are rendered. All other lands as well as goods and chattels of the debtor are bound from the time they are seized in executions.

(Emphasis added.) Haught raised this claim below but the district court did not address it. Accordingly, we remand this matter to the district court for consideration of Haught's claim in respect to § 1-17-802.

[T16] Reversed and remanded.

      . The house was not on either Tract 3 or Tract 4, and these loans are not at issue here.

      . The Guetzkows failed to appear, and the district court granted judgment in favor of Haught. The district court pierced the corporate veil and held Gerald and Joshua Guetzkow personally liable for Haught's judgment against GCI. The court also set aside the transfer of Tracts 3 and 4 to Joshua Guetzkow as fraudulent. The rulings against GCI and the Guetzkows are not at issue in this appeal.

      . Wyo. Stat. Ann. § 1-17-302 was amended in 1999 to read:
      The lands and tenements within the county in which judgment is entered are bound for the satisfaction thereof from the day the judgment is filed with the county clerk. Whenever a judgment is required to be filed with the county clerk, it shall be recorded in the real estate records. Goods and chattels of the debtor are bound from the time they are seized in execution.
      Wyo. Sess. Laws 1999, ch. 190, sec. 1. The legislature grandfathered actions filed prior to the July 1, 1999 effective date of the amendment:
      This act shall apply to all civil actions filed on or after the effective date of this act. Nothing in this act shall affect the validity or preference of a lien of any civil action filed prior to the effective date of this act.
      Wyo. Sess. Laws 1999, ch. 190, sec. 2. Haught's action against GCI was filed on June 2, 1998, well before the effective date of the 1999 amendment.