text:
    Lincoln BEAUREGARD and Leslie Beauregard, a marital couple, Appellants/Cross-Respondents, v. Anna RILEY, an individual, Respondent/Cross-Appellant.
    No. 77431-0-I consolidated with No. 77501-4-I
    Court of Appeals of Washington, Division 1.
    FILED: June 24, 2019
    Lincoln Charles Beauregard, Connelly Law Offices, 2301 N. 30th St., Tacoma, WA, 98403-3322, Lars E. Neste, Demco Law Firm PS, 5224 Wilson Ave. S. Ste. 200, Seattle, WA, 98118-2587, Christopher M. Macmillan, Olsen Barton, 5 Centerpointe Dr. Ste. 220, Lake Oswego, OR, 97035-8620, Counsel for Appellants.
    Lars E. Neste, Demco Law Firm PS, 5224 Wilson Ave. S. Ste. 200, Seattle, WA, 98118-2587, Christopher M. Macmillan, Olsen Barton, 5 Centerpointe Dr. Ste. 220, Lake Oswego, OR, 97035-8620, Lincoln Charles Beauregard, Connelly Law Offices, 2301 N. 30th St., Tacoma, WA, 98403-3322, Counsel for Respondent.
    Gregory J. Hollon, McNaul Ebel Nawrot & Helgren, 600 University St. Ste. 2700, Seattle, WA, 98101-3143, Theresa Demonte, McNaul Ebel Nawrot & Helgren, 600 University St. Ste. 2700 Seattle, WA, 98101-3143, Amicus Curiae on behalf of Washington Realtors.
    PUBLISHED OPINION
    Mann, A.C.J.
    ¶ 1 Lincoln and Leslie Beauregard appeal the summary judgment dismissal of their claims against their former real estate agent, Anna Riley, for negligence, breach of statutory real estate broker duties, and violations of the Washington Consumer Protection Act (CPA). The Beauregards are unable to establish that Riley's actions were the proximate cause of their claimed injuries. Accordingly, we affirm dismissal of their claims.
    ¶ 2 Riley cross-appeals the trial court's determination that Riley owed and breached a statutory duty to communicate a rental inquiry to the Beauregards. Riley did not have a duty to communicate rental inquiries under RCW 18.86.030(1)(c). Therefore, we reverse the trial court's conclusion to the contrary.
    I.
    ¶ 3 The Beauregards retained Riley to list and sell their property in Bellevue, Washington. Riley is a realtor with Windermere Real Estate/East, Inc. in Bellevue. During Riley's initial meeting with the Beauregards at their Bellevue home, the Beauregards mentioned they were also considering another real estate broker. Ultimately the Beauregards chose Riley because she estimated the property could be listed at $ 2,488,000, higher than the other agent's estimate. Riley recalls merely "shar[ing] with them that other clients ... were buying a similar sized home one block over that was listed at $ 2,488,000" and offered that amount as an example, only after the Beauregards insisted on her opinion. The Beauregards maintain that Riley inflated the price to induce them to enter the Exclusive Sale and Listing Agreement (the Listing Agreement).
    ¶ 4 Ms. Beauregard told Riley that, if they did not get offers within their desired price range, they were also interested in renting their property. Riley concedes this alternative was discussed, but the Listing Agreement contracts Riley to "sell" the property, and specifically indicates that the "[f]irm need not submit to Seller any offers to lease, rent, execute an option to purchase, or enter into any agreement other than for immediate sale of the Property."
    ¶ 5 The parties signed the Listing Agreement on November 11, 2015. The Listing Agreement did not include a list price, but listed the property as viewable by "Appointment," "Call Listing Office," and through the "Multiple Listing Service (MLS) Keybox." Riley also listed the property as owner-occupied despite it being vacant because for "premier properties," Riley prefers to go to the property before a showing, turn on the lights and heat, discuss key features of the home with the buyer's broker, and ensure the doors are locked after the showing. Additionally, Riley maintains that the property was not truly vacant because some of the Beauregards' furniture was present, and a vacant property is more susceptible to theft. The Beauregards maintain that Riley never fully explained to them that the property was listed as owner-occupied or as viewable by appointment, and had they known, the Beauregards would have never agreed to those terms. Those terms, however, were clearly listed in the Listing Agreement signed by the Beauregards. ¶ 6 On December 4, 2015, Riley e-mailed the Beauregards, recommending a list price between $ 1,950,000 and $ 2,150,000. Ms. Beauregard replied that she thought they had discussed a higher starting price range. Riley arrived at the suggested list price after conducting market research, which included two comparable properties in the same neighborhood. The first was listed for $ 2,488,000, but sold for $ 2,285,000. The second was listed for $ 2,249,000, but sold for $ 2,175,000. The property is a stacked three level floorplan, lacking an open floorplan, and with recent market preference trending towards open floorplans, Riley suggested a lower list price to compensate for the market trends. The Beauregards disagreed with Riley's recommendation and the property was listed for $ 2,288,000 with a $ 5,000 "paint/deck stain credit" and went active on December 9, 2015.
    ¶ 7 The parties characterize the discussions about listing the property over the holiday period differently. The Beauregards maintain they contacted Riley about delisting the property over the holiday season, but Riley never responded because she was vacationing in France. Riley maintains that there was less inventory on the market, and listing over the holiday period would capitalize on buyers trying to relocate before the New Year.
    ¶ 8 During the months following the initial listing, Riley's office hosted at least 18 open houses at the property. No prospective buyers submitted offers during that period. The Beauregards contend that the lack of offers was because Riley failed to follow-up with prospective buyers and used old photographs in the listing. At several points during her representation, Riley recommended that the Beauregards drop the list price because other nearby properties had recently lowered their prices and attracted buyers. On February 3, 2016, the Beauregards agreed to reduce the price to $ 2,173,000, stating "[w]e had always felt the 2.28 was ambitious, but wanted to try it." Riley recommended a further price reduction on March 20, 2016, to $ 1,998,000, but the Beauregards disagreed.
    ¶ 9 On March 6, 2016, the Beauregards notified Riley they wanted to switch real estate agents because they felt Riley was not following up with prospective buyers and had too many other listings in the Bellevue area. Riley convinced the Beauregards to give her a second chance. Riley and the Beauregards made several changes to the property and updated the listing photos, which showcased the re-sodded backyard, the exterior paint job, and updated interior photos.
    ¶ 10 Ultimately, the Beauregards terminated their Listing Agreement with Riley in April 2016, and entered a new agreement with Nancy Klinck. The property sold on August 17, 2016 for $ 1,850,000.
    ¶ 11 The Beauregards filed their complaint alleging Riley breached statutory duties, was negligent, and violated the CPA. The Beauregards advanced a theory that Riley's cumulative breaches caused their property to remain on the market for too long, leading to low offers from prospective buyers. The Beauregards claimed that Riley fraudulently induced them to enter the Listing Agreement by inflating the value of their property to $ 2,488,000, which was an unfair and deceptive act under the CPA.
    ¶ 12 During discovery, the Beauregards recovered an e-mail inquiry from Mark Williams, another realtor with Windermere, sent to Riley on April 6, 2016. Williams inquired whether the Beauregards would be interested in renting as opposed to selling because he had a client looking to move in mid-June from San Francisco, and rent a 2000+ sq/ft house for $ 3,500 a month. Riley replied that the Beauregards were not interested in renting the property. Ultimately, the prospective renter never rented a property in Bellevue, and stayed in a hotel only for a couple of months before moving back to San Francisco. The Beauregards contend that Riley was required by RCW 18.86.030(1)(c) to inform them of this "offer" to rent their property, failed to do so, and if this "offer" was conveyed, they would have accepted. ¶ 13 Riley moved for summary judgment. In response, the Beauregards retained Lawand Anderson, a realtor and attorney, as an expert. The Beauregards filed a cross-motion for summary judgment. Riley filed a motion to strike the declaration of Anderson, contending Anderson was not qualified as an expert and her opinion was based on speculation.
    ¶ 14 The trial court denied the motion to strike, indicating "the basis of speculation may be argued as part of the summary judgment motion." The trial court granted Riley's motion for summary judgment as to the Beauregards' CPA claim and negligence claim, but denied summary judgment as to the Beauregards' statutory duties claim, finding Riley had a duty to convey the rental inquiry and breached it, but reserved further ruling on causation and damages.
    ¶ 15 Riley filed a second motion for summary judgment on the issue of causation, contending the Beauregards were unable to prove that Riley proximately caused the Beauregards' claimed injuries. The trial court granted Riley's second motion for summary judgment and dismissed all of the Beauregards' claims.
    ¶ 16 The Beauregards appeal the trial court's grant of summary judgment in favor of Riley. Riley cross-appeals the trial court's finding that she owed the Beauregards a duty under RCW 18.86.030(1)(c) to transmit the rental inquiry and breached that duty. Riley also appeals the trial court's consideration of the Beauregards' expert declaration.
    II.
    ¶ 17 Common to each of the Beauregards' claims is the issue of whether Riley's actions proximately caused the Beauregards' claimed injuries. The Beauregards contend the trial court erred in granting summary judgment because they presented sufficient evidence to establish an issue of material fact for proximate causation. We disagree.
    ¶ 18 We review a trial court's grant of summary judgment de novo, considering "all reasonable inferences from the evidence in the light most favorable to the nonmoving party." Keck v. Collins, 184 Wash.2d 358, 370, 357 P.3d 1080 (2015). "Summary judgment is appropriate only when no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law." Keck, 184 Wash.2d at 370, 357 P.3d 1080. Mere allegations or conclusory statements of fact that are unsupported by the evidence are insufficient to show a genuine issue. Baldwin v. Sisters of Providence in Wash., Inc., 112 Wash.2d 127, 132, 769 P.2d 298 (1989).
    ¶ 19 When the moving party is the defendant, it may meet its burden of showing there is no dispute of material fact by "pointing out that there is an absence of evidence to support an essential element of the plaintiff's claim." Boguch v. Landover Corp., 153 Wash. App. 595, 609, 224 P.3d 795 (2009). "To avoid summary judgment, the plaintiff must make out a prima facie case concerning the essential element of its claim." Boguch, 153 Wash. App. at 609, 224 P.3d 795. If the plaintiff is unable to present a dispute of material fact concerning an essential element that it bears the burden of proof at trial, the trial court should grant the motion. Boguch, 153 Wash. App. at 609, 224 P.3d 795.
    ¶ 20 Real estate brokers owe the statutory duties listed in RCW 18.86.030 to "all parties to whom the broker renders real estate brokerage service." In 2013, the legislature amended RCW 18.86.110 in light of the Supreme Court's holding in Jackowski v. Borchelt that real estate brokers owed clients common law fiduciary duties in addition to the statutory duties. 174 Wash.2d 720, 732-33, 278 P.3d 1100 (2012). The amendment makes clear that "[t]he duties under this chapter are statutory duties and not fiduciary duties. This chapter supersedes the fiduciary duties of an agent to a principal under the common law." RCW 18.86.110.
    ¶ 21 To demonstrate that the defendant's breach was the proximate cause of the plaintiff's injury, the plaintiff must demonstrate both cause in fact and legal causation. Boguch, 153 Wash. App. at 609, 224 P.3d 795 (citation omitted). Cause in fact is established by showing that "but for" the defendant's breach, the plaintiff's alleged injury would not have occurred. Boguch, 153 Wash. App. at 609, 224 P.3d 795. Legal causation relates to the question of duty, and addresses how far to extend a defendant's responsibility, when despite being the cause in fact of the plaintiff's injury, the defendant's actions are either too remote or other policy considerations suggest cutting off liability. Hertog v. City of Seattle, 138 Wash.2d 265, 282-83, 979 P.2d 400 (2009) (citation omitted).
    ¶ 22 The causation analysis under the CPA is the same analysis as cause in fact. The Beauregards must show that "but for the defendant's unfair or deceptive practice, the plaintiff would not have suffered an injury." Indoor Billboard/Wash., Inc. v. Integra Telecom of Wash., Inc., 162 Wash.2d 59, 83, 170 P.3d 10 (2007).
    ¶ 23 Both parties argue Boguch is analogous. In Boguch, this court found that the plaintiff had not met his burden of production on the issue of causation. Boguch, 153 Wash. App. at 612, 224 P.3d 795. The realtors in Boguch breached their duty by including in the listing, a picture that inaccurately depicted the boundary of the property. Boguch, 153 Wash. App. at 612, 224 P.3d 795. The plaintiff identified a prospective buyer and argued the buyer would have purchased the property but for the realtors' breach. Boguch, 153 Wash. App. at 612, 224 P.3d 795.
    ¶ 24 The prospective buyer, however, had multiple other reasons for not purchasing the property, including the property's general location, the direction of the view, and the slope of the land. Boguch, 153 Wash. App. at 612, 224 P.3d 795. The court determined that there was an absence of evidence that, but for the realtors' breach, the property would have sold within a certain price range. Boguch, 153 Wash. App. at 612, 224 P.3d 795. In making this determination, the court concluded that, "other than the eventual buyers, only one individual, Bennett, expressed even the slightest interest in purchasing the property." Boguch, 153 Wash. App. at 612, 224 P.3d 795. Thus, it was not only "speculative as to whether there was in fact a prospective buyer who would have purchased Boguch's property but it [was] also speculative as to whether such a prospective buyer was dissuaded from purchasing the property because of the inaccurate posting." Boguch, 153 Wash. App. at 612, 224 P.3d 795.
    ¶ 25 Under Boguch, the Beauregards must show there was a prospective buyer who would have been willing to purchase the property in their desired price range, but for Riley's negligence. See Boguch, 153 Wash. App. at 613, 224 P.3d 795. Similarly to Boguch, the Beauregards' theory "rests on the assumption that unknown prospective buyers who would have purchased the property either never considered it because their agents decided not to show it to them or must have had misgivings about the property based on the length of time it was on the market." Boguch, 153 Wash. App. at 613, 224 P.3d 795. In Boguch, the record was insufficient to show that a generalized negative perception of homes on the market for long periods of time was "in fact held by any identified prospective buyer who considered Boguch's property or by such a prospective buyer's agent." Boguch, 153 Wash. App. at 613, 224 P.3d 795. Ultimately, the court concluded that a trier of fact could not "reasonably infer that Boguch would have obtained a result different from the terms of the eventual sale without speculating about other essential facts." Boguch, 153 Wash. App. at 613, 224 P.3d 795.
    ¶ 26 Here, the Beauregards allege 10 ways Riley breached her duty as their agent, but fail to identify a prospective buyer who would have been willing to purchase the Beauregards' property within their desired price range-but for Riley's negligence. The Beauregards also identify negative sentiments held by people who viewed the property, but the Beauregards cannot identify in the record any potential buyer, including the ultimate buyer, who would have made an offer within the Beauregards' price range, but for Riley's breaches.

      Ch. 19.86 RCW.

      The Beauregards argue Riley breached her duty by:
      (1) inducing them to enter the listing agreement dated November 11, 2015 by way of negligent pricing advice by proposing a value of $ 2,400,000, (2) advising them to list their home at an unmarketable value of $ 2,288,000 and bad pricing thereafter, (3) failing to clearly discuss the advertised listing terms including orally clarifying that other agents would be informed of the suggestion for appointment, (4) informing other agents that she should be contacted prior to any viewings, (5) recommending that the Beauregards list their home over the dormant holiday season, (6) failing to respond to the Beauregards inquiry of December 21, 2015 about de-listing the home over the holidays, (7) utilizing old photos of the 2013 listing that were not representative of the home at the time of current marketing, (8) failing to follow up with interest [sic] buyers in the spring of 2016, (9) failing to inform the Beauregards of the April 6, 2016 offer to rent their home for a 2-years [sic] lump sum cash payment, and (10) elevating her own financial incentives over and above the Beauregards express and/or implied goals.

   ¶ 27 Thus, under Boguch, the Beauregards have failed to establish proximate causation, an essential element to their negligence, statutory duty, and CPA claims.

III

¶ 28 Riley cross-appeals and contends that the trial court erred when it found that Riley had a duty under RCW 18.86.030(1)(c) to communicate a rental inquiry to the Beauregards. We agree.

¶ 29 We review issues of statutory construction de novo. State v. Evans, 177 Wash.2d 186, 191, 298 P.3d 724 (2013). "When interpreting a statute, our fundamental objective is to determine and give effect to the intent of the legislature." State v. Sweany, 174 Wash.2d 909, 914, 281 P.3d 305 (2012) (citation omitted). The court's analysis begins by looking to the text of the statutory provision, the context in which the provision is found, related provisions, and the statutory scheme as a whole. Sweany, 174 Wash.2d at 914, 281 P.3d 305.

¶ 30 The statutory duty to convey all "written offers, written notices and other written communications" is triggered once a broker is rendering "real estate brokerage services." See RCW 18.86.030(1)(c). As discussed above, the amendment to chapter 18.86 makes clear that "[t]he duties under this chapter are statutory duties and not fiduciary duties. This chapter supersedes the fiduciary duties of an agent to a principal under the common law." RCW 18.86.110.

¶ 31 At issue in this appeal is the duty described in RCW 18.86.030(1)(c), which imposes statutory duties on real estate brokers:

(1) Regardless of whether a broker is an agent, the broker owes to all parties to whom the broker renders real estate brokerage services the following duties, which may not be waived: ...
(c) To present all written offers, written notices and other written communications to and from either party in a timely manner, regardless of whether the property is subject to an existing contract for sale or the buyer is already a party to an existing contract to purchase.

Brokers owe these duties "to all parties whom the broker renders real estate brokerage services." RCW 18.86.030. "Real estate brokerage services" is defined as "the rendering of services for which a real estate license is required under chapter 18.85 RCW." Chapter 18.85, which governs real estate licensure, defines "real estate brokerage services" to mean "any of the following services offered or rendered directly or indirectly to another, or on behalf of another for compensation or the promise or expectation of compensation." RCW 18.85.011(17). Thus, while the statute explains that the duties are not waivable, they are owed when only a broker is acting for "compensation or the promise or expectation of compensation."

¶ 32 To ascertain the scope of Riley's agency we must look to the Listing Agreement to determine the compensation Riley expected to receive for her services. The Listing Agreement defines "sell" to include a "contract to sell; an exchange or contract to exchange; an option to purchase; and/or a lease with option to purchase." "Sell" is used in the commission section of the Listing Agreement as follows:

COMMISSION. If during the Listing Term (a) Seller sells the Property and the buyer does not terminate the agreement prior to closing; or (b) after reasonable exposure of the Property to the market, Firm procures a buyer who is ready, willing, and able to purchase the Property on the terms in this Agreement, Seller will pay ... Firm a commission of 6% of the sales price.... Further, if Seller shall, within six months after the expiration of the Listing Term, sell the Property to any person to whose attention it was brought through the signs, advertising or other action of Firm, or on information secured directly or indirectly from or through Firm, during the Listing Term, Seller will pay Firm the above commission.[ ]

By the terms of the Listing Agreement, "selling" includes "leasing with option to purchase." Thus, the scope of the Listing Agreement included leasing, but only when coupled with an option to purchase.

¶ 33 In the e-mail Riley received from Williams, the e-mail specifically asked if the Beauregards would be interested in renting their house, as opposed to selling. The e-mail communication does not fall within the "real estate brokerage services" that the Beauregards contracted with Riley because Williams clearly indicated that the interested party only wanted to rent the property. Since Riley's scope of agency was limited to selling the property, Riley was not expecting compensation from renting the property. Therefore Riley did not have a duty to communicate the rental inquiry under RCW18.86.030(1)(c).

¶ 34 We affirm dismissal of the Beauregards' claims. We reverse the trial court's finding that Riley had a statutory duty to communicate the rental inquiry and breached that duty.

WE CONCUR:

Schindler, J.

Appelwick, C.J.

      (Emphasis added.)

      The e-mail stated:
      Shot in the dark but wondering if your client at 10052 NE 30th Place, Bellevue 98004 might be interested in renting their house as appose [sic] to selling, I have a friend moving from SF in mid June looking for a rental to get acquainted with the area. He and his family are looking in West Bellevue area like Clyde Hill, Medina, Hunts point, Yarrow point and surrounding.
      $ 3500/mo is his target monthly2000+ sq/ftHouse2+ bedroomsHe is willing to sweeten the offer by paying cash in full for a year if needed and looking for 1-2 year.

      Since we affirm the trial court's grant of summary judgment on causation, we decline to reach Riley's cross-appeal on whether the trial court erred by considering Anderson's expert declaration.


source: Caselaw Access Project

author: BOOMGAARDEN, Justice.

license: Public Domain

text:
    Derrick Raymond PARKHURST, Appellant (Petitioner), v. The STATE of Wyoming, Appellee (Respondent).
    S-18-0243
    Supreme Court of Wyoming.
    June 19, 2019
    Representing Appellant: Derrick R. Parkhurst, pro se.
    Representing Appellee: Peter K. Michael, Attorney General; Christyne Marie Martens, Deputy Attorney General; Samuel Lee Williams, Assistant Attorney General.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   BOOMGAARDEN, Justice.

[¶1] Thirty-eight years after his convictions for first degree murder and assault and battery with felonious intent, Appellant Derrick Raymond Parkhurst, pro se, seeks exoneration under the newly enacted Post-Conviction Determination of Factual Innocence Act, Wyo. Stat. Ann. §§ 7-12-401 through 407 (LexisNexis Supp. 2018). The district court dismissed Mr. Parkhurst's petition because it lacked documentation of any newly discovered evidence that would establish his innocence. We affirm.

ISSUE

[¶2] We frame the issue for review as:

Did the district court err when it dismissed Mr. Parkhurst's petition for post-conviction determination of factual innocence?

FACTS

[¶3] We set forth the facts leading to Mr. Parkhurst's convictions in Parkhurst v. State :

At approximately 11:45 p.m. on October 29, 1978, the home of Dennis and Christina Baird, located in Glenrock, Wyoming, was entered by force. The assailants kicked open the front door and went inside. Wade Dugger, a house guest who was sleeping in the front room on a couch, awoke to the sound of a shotgun blast which hit the Bairds' dog as it ran into the room. Mr. Dugger stood up and he too was shot. The blast knocked him backwards into the adjoining bedroom in which the Baird children were sleeping. Dennis and Christina Baird jumped out of bed to investigate the commotion. As they approached the door into the front room, Dennis pushed his wife back into the bedroom and indicated that she should wait. He then went around the door and was instantly shot. His body, recoiling from the shotgun blast, landed at Christina's feet. Desperate for help, she headed out of the bedroom and then saw Derrick Parkhurst, one of the appellants, running out the front door. When she went to check on her children, she discovered that Mr. Dugger was seriously injured. She asked if he was all right and he responded, "no," and then said, "Derrick." Ms. Baird then ran next door for help.
When the police arrived, a witness told them that he had seen two males fleeing the scene in a blue or green Ford Fairlane and that he had followed the car far enough to see it heading out of town towards Douglas, Wyoming. The police, upon entering the house, determined that Dennis Baird was dead but that Wade Dugger was still alive. While awaiting the arrival of an ambulance, Ms. Baird informed the police that Dennis and Derrick Parkhurst were the assailants. A police officer then asked Mr. Dugger if he knew who shot him. Unable to understand the response, the officer queried if it had been Derrick and Mr. Dugger indicated yes; Dugger survived to testify.

628 P.2d 1369, 1372 (Wyo. 1981) (footnote omitted). Police soon located the vehicle observed leaving the scene and ordered Mr. Parkhurst and his brother, Dennis, to exit the vehicle. Id. at 1372-73. On Mr. Parkhurst's advice, his brother consented to a search. Id. at 1373. In the trunk, police discovered a .22 caliber rifle and 12-gauge shotgun which was later matched to the spent shells found at the scene of the murder. Id. Police also determined that the shotgun had recently been fired. Id.

[¶4] After the jury found Mr. Parkhurst guilty of first degree murder and assault and battery with felonious intent, he filed a direct appeal, claiming the officers illegally obtained evidence, and that the arresting officer impermissibly commented at trial on Mr. Parkhurst's right to remain silent. Id. at 1371-72. We found no error and affirmed his convictions. Id. at 1382.

[¶5] Mr. Parkhurst thereafter filed several petitions for post-conviction relief, a motion for writ of habeas corpus, and a petition for writ of certiorari requesting reinstatement of his direct appeal, among other pleadings. Mr. Parkhurst also sought habeas corpus relief in federal court. See Parkhurst v. Shillinger , 128 F.3d 1366 (10th Cir. 1997). None of his efforts to overturn his convictions proved successful.

[¶6] In 2016, Mr. Parkhurst filed a motion to correct an illegal sentence pursuant to W.R.Cr.P. Rule 35(a), alleging ineffective assistance of trial counsel, inter alia . The district court denied the motion because Mr. Parkhurst's claims were not raised in a timely petition for post-conviction relief and were otherwise barred by res judicata. We dismissed Mr. Parkhurst's subsequent appeal for lack of jurisdiction, concluding that his Rule 35(a) motion improperly attempted to challenge his underlying convictions. Parkhurst v. State , No. S-17-0305 (Wyo. April 30, 2018) (order dismissing appeal ).

[¶7] Most recently, Mr. Parkhurst filed a petition for exoneration pursuant to the Post-Conviction Determination of Factual Innocence Act (the Factual Innocence Act), Wyo. Stat. Ann. §§ 7-12-401 through 407. He argued that the Factual Innocence Act created a new avenue for post-conviction relief and, thus, his claims were no longer time barred under Wyo. Stat. Ann. § 7-14-103(d) (LexisNexis 2017) or by the doctrine of res judicata. In his petition, Mr. Parkhurst alleged that his trial counsel, Wyatt Skaggs, was ineffective because: (1) he was operating under a conflict of interest after Mr. Parkhurst's father allegedly threatened Mr. Skaggs' life shortly before trial and, due to the threat, the district court permitted Mr. Skaggs' investigator to be armed during trial; and (2) Mr. Skaggs did not present any defense and erred by failing to request a jury instruction on manslaughter, because Mr. Parkhurst acted out of fear and terror. He also alleged that the State violated his due process rights because he believed the State lost the trial transcripts. He made no further allegations.

[¶8] The district court dismissed the petition because it lacked any documentation of newly discovered evidence that would establish Mr. Parkhurst's innocence. The district court also noted that Mr. Parkhurst's arguments reflected a "fixation" on his claim that he received ineffective assistance of counsel and that he failed to show how his allegations of missing transcripts, even if true, supported a claim for relief under the factual innocence statutes. This timely appealed followed.

STANDARD OF REVIEW

[¶9] Statutory interpretation presents a question of law, which we review de novo. Dougherty v. State , 2010 WY 116, ¶ 4, 237 P.3d 403, 404 (Wyo. 2010) (citation omitted). We also conduct a de novo review of a district court's summary adjudication of a factual innocence petition. See Wyo. Stat. Ann. § 7-12-403(c) (requiring the district court to dismiss, without prejudice, a petition failing to meet the statutory requirements); Miller v. State , ¶ 6, 340 P.3d 795, 796 (UT App. 2014) ("An appellate court reviews 'de novo the district court's summary adjudication of [a] factual innocence [petition].' ") (quoting Gressman v. State , ¶ 6, 323 P.3d 998, 1001 (UT 2013) ); see also People v. Laiwala , 143 Cal.App.4th 1065, 1069, 49 Cal.Rptr.3d 639, 642 (2006) (reviewing de novo the trial court's determination of a factual innocence petition).

DISCUSSION

[¶10] The legislature passed the Factual Innocence Act in 2018 to allow a person convicted of a felony offense to petition the court for exoneration if the person can establish that he is factually innocent of the convicted crime(s). See generally Wyo. Stat. Ann. §§ 7-12-401 through 407. On receipt of a petition filed under the Factual Innocence Act, the district court is required to review the petition and specifically find whether the petition has satisfied each of the requirements set forth in Wyo. Stat. Ann. § 7-12-403(b). Wyo. Stat. Ann. § 7-12-403(c). If the petition fails to meet each of subsection (b)'s requirements, the statute expressly mandates that the court dismiss the petition without prejudice. Id.

[¶11] Mr. Parkhurst's petition for exoneration asserts only that his constitutional rights to effective assistance of counsel and due process were violated. The petition does not assert or establish any bona fide issue of factual innocence. Consequently, the district court did not err when it found that Mr. Parkhurst's petition wholly failed to comply with the Factual Innocence Act's requirements and dismissed the petition without prejudice.

[¶12] Mr. Parkhurst acknowledges that his petition seeks redress of his perceived constitutional rights violations. He further recognizes that his claims are time-barred under the post-conviction relief statutes, Wyo. Stat. Ann. §§ 7-14-101 through 108 (LexisNexis 2017). He contends, however, that his constitutional claims are no longer time-barred if the Factual Innocence Act is read in pari materia with the post-conviction relief statutes. He reasons that because the legislature passed the Factual Innocence Act without including a statute of limitations and amended the post-conviction relief statutes in the same bill, the legislature intended for the Factual Innocence Act to encompass all post-conviction relief claims regardless of whether those claims were previously time barred. Established rules of statutory construction defeat Mr. Parkhurst's argument.

[¶13] We read statutes in pari materia only when the statutes relate to the same subject. Crain v. State , 2009 WY 128, ¶ 9, 218 P.3d 934, 938-39 (Wyo. 2009) (citations omitted). We do this "so that inconsistencies in one statute may be resolved by looking at another statute on the same subject." Id. (quoting Black's Law Dictionary , 807 (8th ed. 2004)). "[W]here there is plain, unambiguous language used in a statute there is no room for construction, and a court may not properly look for and impose another meaning." Harris v. State , 2006 WY 76, ¶ 11, 137 P.3d 124, 128 (Wyo. 2006) (quoting Keser v. State , 706 P.2d 263, 266 (Wyo. 1985) ). "[W]here legislative intent is discernible a court should give effect to that intent." Id .

[¶14] The scope of the Factual Innocence Act is plainly limited to claims of factual innocence based on newly discovered evidence. See Wyo. Stat. Ann. § 7-12-403(b) (requiring every petition filed pursuant to the Factual Innocence Act to "contain an assertion of factual innocence" supported by "newly discovered evidence"). While the statutes Mr. Parkhurst contends should be read in pari materia involve post-conviction relief claims, they do not relate to claims based on newly discovered evidence. Compare id. , with Wyo. Stat. Ann. § 7-14-101 (allowing post-conviction relief claims for violation of federal or state constitutional rights) and Wyo. Stat. Ann. §§ 1-27-101 through 134 (LexisNexis 2017) (limiting state habeas corpus relief to jurisdictional claims). Even if these statutes related to the same subject, Mr. Parkhurst has not identified any inconsistency within the Factual Innocence Act in need of resolution, or any ambiguity in need of construction. We cannot, under the guise of statutory construction, expand the scope of the Factual Innocence Act to provide post-conviction relief for constitutional claims, as Mr. Parkhurst suggests. Mr. Parkhurst's claims are subject to the express statutory requirements of the Factual Innocence Act.

CONCLUSION

[¶15] Mr. Parkhurst failed to comply with statutory requirements of the Factual Innocence Act. His claims fall outside of that Act's express parameters. The district court did not err when it dismissed Mr. Parkhurst's petition for exoneration without prejudice.

[¶16] Affirmed.

      Mr. Parkhurst raised ineffective assistance of counsel claims in the 1993 petition for writ of certiorari, the 1994 federal habeas corpus action, the 1997 amended post-conviction relief petition, the 2008 petition for post-conviction relief, and the 2016 Rule 35(a) motion. Parkhurst , 128 F.3d at 1367-68 (describing the ineffective assistance of counsel claims made in the 1993 petition for writ of certiorari and the 1994 federal habeas corpus action).

      The State did not lose the trial transcripts; they are contained in the record on appeal.

      Specifically, Wyo. Stat. Ann. § 7-12-403(b) provides:
      (b) The petition shall contain an assertion of factual innocence under oath by the petitioner and shall aver, with supporting affidavits or other credible documents, that:
      (i) Newly discovered evidence exists that, if credible, establishes a bona fide issue of factual innocence;
      (ii) The specific evidence identified by the petitioner establishes innocence and is material to the case and the determination of factual innocence;
      (iii) The material evidence identified by the petitioner is not merely cumulative of evidence that was known, is not reliant solely upon recantation of testimony by a witness against the petitioner and is not merely impeachment evidence;
      (iv) When viewed with all other evidence in the case, whether admitted during trial or not, the newly discovered evidence demonstrates that the petitioner is factually innocent; and
      (v) Newly discovered evidence claimed in the petition is distinguishable from any claims made in prior petitions.

      Because the record contains Mr. Parkhurst's admissions he intended to shoot and kill Wade Dugger and Dennis Baird, albeit out of fear and terror, and that he "committed manslaughter," it is difficult to imagine how Mr. Parkhurst could credibly assert "factual innocence" as the legislature defined that phrase. "Factual innocence" means a person:
      (A) Did not engage in the conduct for which he was convicted;
      (B) Did not engage in conduct constituting a lesser included or inchoate offense of the crime for which he was convicted; and
      (C) Did not commit any other crime arising out of or reasonably connected to the facts supporting the indictment or information upon which he was convicted.
      Wyo. Stat. Ann. § 7-12-402(a)(ii). "A person is guilty of manslaughter if he unlawfully kills any human being without malice, expressed or implied, ... [v]oluntarily, upon a sudden heat of passion..." and voluntary manslaughter is a lesser-included offense of first degree murder. Wyo. Stat. Ann. § 6-2-105 (LexisNexis 2017) ; Sanders v. State , 7 P.3d 891, 894 (Wyo. 2000) (citation omitted).

      Wyo. Stat. Ann. § 7-14-103(d) states: "No petition under this act shall be allowed if filed more than five (5) years after the judgment of conviction was entered."


author: GRAY, Justice.

text:
    FINLEY RESOURCES, INC., a Texas corporation, Appellant (Plaintiff), v. EP ENERGY E&P COMPANY, L.P., d/b/a EL Paso E&P Company, L.P., a Delaware limited partnership, Appellee (Defendant).
    S-18-0235
    Supreme Court of Wyoming.
    June 24, 2019
    Representing Appellant: Scott P. Klosterman and Thomas F. Reese, Williams, Porter, Day & Neville, P.C., Casper, Wyoming. Argument by Mr. Klosterman.
    Representing Appellee: Matthew L. Crockett and Jeffrey M. Lippa, Greenberg Traurig, LLP, Denver, Colorado. Argument by Mr. Lippa.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   GRAY, Justice.

[¶1] Finley Resources, Inc. (Finley) appeals the district court's dismissal of its Complaint against EP Energy E&P Company (EP Energy). The district court determined the forum-selection clause contained in the contract between the parties required Finley to file its suit in Texas. Finley contends the district court erred because its claims for quiet title, declaratory judgment, and adverse possession were not subject to the forum-selection clause. We affirm.

ISSUE

[¶2] Did the district court err when it decided the forum-selection clause required Finley's lawsuit to be brought in Texas?

FACTS

[¶3] On December 28, 2007, Finley and EP Energy entered into a Purchase and Sale Agreement (Agreement) for the sale of oil and gas leases located in Converse and Niobrara Counties, Wyoming. Finley's principal place of business is in Fort Worth, Texas, and EP Energy's principal place of business is in Houston, Texas. Both entities conduct oil and gas activities in Wyoming. According to the First Amended Complaint, the Agreement required EP Energy to assign all of its interests under various leases to Finley, without limit to the depths and formations. EP Energy, however, failed to do so despite Finley's "repeated requests and demands." The dispute crystalized on September 13, 2017, when EP Energy sent an e-mail to Finley stating EP Energy retained the deep rights in certain lands described in the leases assigned to Finley.

[¶4] Finley filed this lawsuit against EP Energy in the Wyoming District Court for the Eighth Judicial District. The First Amended Complaint set forth five claims for relief: (1) quiet title; (2) declaratory judgment; (3) breach of contract; (4) breach of the implied covenant of good faith and fair dealing; and (5) adverse possession. EP Energy filed a motion to dismiss seeking to enforce the choice-of-law and forum-selection clauses contained in the Agreement.

[¶5] Section 13.10 of the Agreement provides:

Governing Law; Jurisdiction; Waiver of Trial by Jury.
(a) This Agreement is governed by the Laws of the State of Texas, excluding any choice of law rules that may direct the application of the Laws of another jurisdiction.
(b) The Parties agree that any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or the transaction contemplated hereby shall be brought in the United States District Court for the Southern District of Texas or any Texas state court sitting in Houston, so long as one of such courts shall have subject matter jurisdiction over such suit, action or proceeding, and that any cause of action arising out of this Agreement shall be deemed to have arisen from a transaction of business in the State of Texas, and each of the parties hereby irrevocably consents to the jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by Law, any objection that it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding ... has been brought in an inconvenient forum.

(First emphasis in original; later emphases added.)

[¶6] In its Motion to Dismiss, EP Energy argued Finley's entire First Amended Complaint fell within the constraints of the forum-selection clause and must be dismissed. The district court applied Texas law and concluded, because the non-contract claims "certainly implicate the terms of the contract," the claims fell within the scope of the forum-selection clause. The district court granted EP Energy's Motion to Dismiss.

STANDARD OF REVIEW

[¶7] We review the district court's construction and interpretation of the forum-selection clause de novo. Larson v. Burton Constr., Inc. , 2018 WY 74, ¶ 16, 421 P.3d 538, 544 (Wyo. 2018) ("Contract interpretation presents questions of law which we review de novo."). A district court's decision to decline jurisdiction based on a forum-selection clause freely entered into by the parties to a contract is discretionary. Venard v. Jackson Hole Paragliding, LLC , 2013 WY 8, ¶ 6, 292 P.3d 165, 168 (Wyo. 2013). A court abuses its discretion when it reasonably could not have concluded as it did. Id. "An abuse of discretion can exist if the wrong law has been applied, the correct law has been applied but incorrectly interpreted, or if the correct law has been improperly applied." Grove v. Pfister , 2005 WY 51, ¶ 6, 110 P.3d 275, 278 (Wyo. 2005).

DISCUSSION

[¶8] Finley asserts the district court abused its discretion when it dismissed Finley's lawsuit because: (1) the declaratory judgment, quiet title and adverse possession claims (equitable causes of action) do not arise from the Agreement; and (2) even if the equitable causes of action arose from the Agreement, the Texas courts lack subject matter jurisdiction to consider the claims. Consequently, the claims are excluded from the application of the forum-selection clause. We address both arguments below.

Applicable Law

[¶9] The parties agree Texas law applies. The Agreement provides: "This Agreement is governed by the Laws of the State of Texas, excluding any choice of law rules that may direct the application of the Laws of another jurisdiction." (Emphasis omitted.) Wyoming courts will enforce choice-of-law provisions and apply foreign law when doing so is not "contrary to the law, public policy, or the general interests of Wyoming's citizens." See Res. Tech. Corp. v. Fisher Sci. Co. , 924 P.2d 972, 975 (Wyo. 1996). We will apply Texas law.

Equitable Claims and the Agreement

[¶10] The parties agree Finley's contractual claims fall within the forum-selection clause. However, Finley argues the forum-selection clause excludes its equitable causes of action because they arise independent of the Agreement. Instead, Finley contends its equitable claims arise from Finley's open, notorious, exclusive, and continuous: (1) exercise of ownership over lands covered by the Lease and lands not included in the assignment; (2) operation of all oil and gas wells located on lands covered by the Lease as well as those located on lands not included in the assignment; and (3) receipt of all proceeds generated from these wells. According to Finley, EP Energy's 2017 e-mail claiming ownership of the deep rights in the Kaye Teapot Sandstone Unit located on lands covered by the leases-an e-mail received nearly ten years after the Agreement was signed-was the impetus for this action.

[¶11] Under Texas law, a "forum-selection clause should be denied force only if the facts alleged in support of the claim stand alone, are completely independent of the contract, and the claim could be maintained without reference to the contract." Pinto Tech. Ventures, L.P. v. Sheldon , 526 S.W.3d 428, 440 (Tex. 2017), reh'g denied (Sept. 22, 2017) (quotations omitted); AutoNation USA Corp. v. Leroy , 105 S.W.3d 190, 195 (Tex. App. 2003). Whether a given claim falls "within the forum-selection clause's scope depends on the parties' intent ... and a 'common-sense examination' of the substantive factual allegations." Pinto , 526 S.W.3d at 437 (citing In re Int'l Profit Assocs., Inc. , 274 S.W.3d 672, 677 (Tex. 2009) ); see also JFP Servs., L.L.C. v. Torans , No. SA-17-CV-00210-FB, 2018 WL 3326841, at *6 (W.D. Tex. Apr. 30, 2018), report and recommendation adopted sub nom. JFP Servs., LLC v. Torans , No. SA-17-CA-210-FB, 2018 WL 4343439 (W.D. Tex. July 2, 2018) ; Braspetro Oil Servs. Co. v. Modec (USA), Inc. , 240 F. App'x 612, 616 (5th Cir. 2007) (The court "look[s] to the language of the parties' contract[ ] to determine which causes of action are governed by the forum selection clause.") (citation omitted).

[¶12] Here, the forum-selection clause applies to "any suit ... based on any matter arising out of or in connection with, this Agreement or the transaction contemplated ." (Emphasis added.) Finley claims this language should be read narrowly because the Agreement's later requirement of subject matter jurisdiction evidences the parties' intent to restrict application of the clause. We disagree.

[¶13] In Pinto , the court examined a forum-selection clause that applied to "any dispute arising out of" the contract. Pinto , 526 S.W.3d at 433. The Pinto court held: "When a forum-selection clause encompasses all 'disputes' 'arising out of' the agreement, instead of 'claims,' its scope is necessarily broader than claims based solely on rights originating exclusively from the contract." Id. at 439 (citation omitted); see also In re Int'l Profit , 274 S.W.3d at 678 (fraud and negligent misrepresentation claims "arise from the contractual relationship between the parties, not from general obligations imposed by law"); In re Lisa Laser USA, Inc. , 310 S.W.3d 880, 886 (Tex. 2010) (forum-selection clause applies to all obligations that would not exist but for the agreement). "Clauses that extend only to disputes 'arising out of' a contract are construed narrowly, while clauses extending to disputes that 'relate to' or 'are connected with' the contract are construed broadly." Morgan-Rinehart v. Van de Perre , No. A-16-CA-01327-SS, 2017 WL 1383933, at *8 (W.D. Tex. Apr. 12, 2017) (quoting Wellogix, Inc. v. SAP Am., Inc ., 58 F. Supp. 3d 766, 778 (S.D. Tex. 2014) ). Here, because the forum-selection clause extends to disputes "based on any matter arising out of or in connection with, this Agreement or the transaction contemplated hereby ," Texas law requires that we construe the clause broadly. (Emphasis added.)

[¶14] In Pinto , the Texas Supreme Court employed a "but-for test," concluding "that a party's 'claims arise out of the Agreement' when 'but for the Agreement, [the party] would have no basis to complain.' " Pinto , 526 S.W.3d at 438 (citing In re Lisa Laser , 310 S.W.3d at 886 ; JFP Servs. , 2018 WL 3326841, at *6 ).

Although the Fifth Circuit has not articulated a specific test for determining when claims fall within the scope of a forum selection clause, district courts within [that] circuit usually look to three rules: (1) whether the tort claims 'ultimately depend on the existence of a contractual relationship between the parties'; (2) whether 'resolution of the claims relates to interpretation of the contract'; and (3) whether the claims 'involv[e] the same operative facts as a parallel claim for breach of contract.'

Morgan-Rinehart , 2017 WL 1383933, at *8 (quoting AlliantGroup, L.P. v. Mols , No. CV H-16-3114, 2017 WL 432810, at *7 (S.D. Tex. Jan. 30, 2017) ).

[¶15] Application of the Texas state and federal court analytical framework requires us to conclude that all Finley's claims are within the scope of the forum-selection clause. Finley's claims for declaratory judgment and quiet title are based on its ownership pursuant to the Agreement or adverse possession. Finley argues its adverse possession claim is completely independent of the Agreement but concedes, "In fact, the adverse possession cause of action would be completely unnecessary if the [Agreement] PSA were given effect...." In other words, Finley contends EP Energy conveyed to Finley the deep rights in certain lands contained in the leases, and if it did not, Finley owns those rights by adverse possession.

[¶16] Adverse possession requires a claim of ownership under color of title or claim of right. Galiher , ¶ 7, 432 P.3d at 507. Color of title is defined as "an instrument which has a semblance or appearance of title but is not title in fact or law." Doenz v. Garber , 665 P.2d 932, 936 (Wyo. 1983). A claim of right is occupation of the land adversely or without permission. Murdock v. Zier , 2006 WY 80, 137 P.3d 147 (Wyo. 2006). Here, both Finley's alleged color of title and claim of right stem from the Agreement. Whether Finley's possession was permissive or adverse must be determined by reference to the Agreement. See 1 Eugene Kuntz, A Treatise on the Law of Oil and Gas § 10.5 (Matthew Bender, Rev. Ed. 2019) ("The working of minerals by a lessee who also claims under a lease ... is not adverse possession.") (citing Lehmann v. Keller , 454 Pa. Super. 42, 684 A.2d 618 (1996) ). Finley's claims for adverse possession are made pursuant to the Agreement. Finley's equitable claims are inextricably tied to the construction of the Agreement and involve the same operative facts as a claim for breach of the Agreement. Without the Agreement, Finley would have no claim to title, no basis for declaratory judgment, and would have been unable to operate on any of the lands to which it now alleges title under adverse possession. Finley's equitable claims are not collateral, they are "matter[s] ... in connection with, this Agreement or the transaction contemplated hereby" and are subject to the forum-selection clause.

Effect of Subject Matter Jurisdiction Requirement

[¶17] Finley argues the district court failed to account for the forum-selection clause's requirement that Texas courts have subject matter jurisdiction over the suit, action or proceeding. It is undisputed Texas courts have no subject matter jurisdiction to "adjudicate title to realty, including interests in oil and gas leases, in another state or country." Devon Energy Prod. Co., L.P. v. KCS Res., LLC , 450 S.W.3d 203, 216 (Tex. App. 2014). The presence of a forum-selection clause in the Agreement cannot confer subject matter jurisdiction where it does not otherwise exist. Id. Therefore, according to Finley, the district court's decision must be reversed.

[¶18] "Absent ambiguity, contracts are construed as a matter of law" with the "primary objective ... to ascertain the parties' ... intentions as expressed in the language they chose." Plains Expl. & Prod. Co. v. Torch Energy Advisors Inc. , 473 S.W.3d 296, 305 (Tex. 2015) (citation omitted). "[Texas courts] 'construe contracts from a utilitarian standpoint bearing in mind the particular business activity sought to be served,' and avoiding unreasonable constructions when possible and proper." Id. (citation omitted); see also Endeavor Energy Res. L.P. v. Discovery Operating, Inc. , 554 S.W.3d 586, 601 (Tex. 2018), reh'g denied (Sept. 28, 2018). Whether noncontractual claims fall within the scope of the forum-selection clause "depends on the parties' intent as expressed in their agreement and a 'common-sense examination' of the substantive factual allegations." Pinto , 526 S.W.3d at 437 (citation omitted); In re Lisa Laser , 310 S.W.3d at 884. The question is, does the subject matter jurisdiction language demonstrate the parties' intent to remove the lawsuit from Texas forums when a party asserts a claim alleging title to lands outside Texas even though the claims clearly arise from the Agreement? We conclude it does not.

[¶19] In construing a contract, Texas courts have said, "we strive to 'give effect to all the provisions of the contract so that none will be rendered meaningless.' " El Paso Field Servs. L.P. v. MasTec N. Am., Inc. , 389 S.W.3d 802, 808 (Tex. 2012) (citation omitted); see also Bear Peak Res., LLC v. Peak Powder River Res., LLC , 2017 WY 124, ¶ 17, 403 P.3d 1033, 1041-42 (Wyo. 2017) ("[W]e avoid interpreting provisions in a way that would render any other portion of the agreement inconsistent or meaningless."). "We presume the parties intended every clause to have some effect, so we 'examine the entire lease and attempt to harmonize all [of] its parts.' " Endeavor Energy , 554 S.W.3d at 595 (citation omitted).

[¶20] Texas courts have "definitely declared that an oil and gas lease is the same as a sale of real estate." Avis v. First Nat'l Bank of Wichita Falls , 141 Tex. 489, 494, 174 S.W.2d 255, 258 (1943). Every contract transferring interests in mineral leases has the potential to give rise to quiet title or declaratory judgment claims. If claims such as those alleged by Finley were to defeat a forum-selection clause, any forum-selection clause in a contract regarding real property would be unenforceable once claims of quiet title or adverse possession were alleged. The forum-selection clause in this case requires only that Texas courts have subject matter jurisdiction over the "suit , action or proceeding" (emphasis added). It does not require Texas courts have subject matter jurisdiction over every conceivable claim Finley might assert. See Demond v. Infiniti HR, LLC , No. 3:17-CV-1322-D, 2018 WL 4145053, at *8 (N.D. Tex. Aug. 30, 2018) ("All '[c]hoices of law and forum in contracts have the incidental effect of preventing [a] party from getting to use the laws of all the excluded jurisdictions.' ") (quoting Haynsworth v. Lloyd's of London , 933 F. Supp. 1315, 1323 (S.D. Tex. 1996) ).

[¶21] Finley contends it would be unjust to deprive it of a hearing on its adverse possession claim. The Texas court considered a similar argument in In re Lyon Fin. Servs., Inc. , 257 S.W.3d 228 (Tex. 2008). There, the party seeking nonenforcement of a forum-selection clause argued the law in Pennsylvania would not allow a corporation to maintain a cause of action for usury. Id. at 234. The court held "[The Appellant's] inability to assert its usury claim in Pennsylvania does not create a public policy reason to deny enforcement of the forum-selection clause." Id. Similarly, Finley's inability to bring its adverse possession claim in Texas does not create a public policy reason to deny enforcement of the forum-selection clause where the underlying contract dispute can properly be interpreted by the Texas courts. See In re Emex Holdings L.L.C. , No. 13-11-00145-CV, 2013 WL 1683614, at *9 (Tex. App. Apr. 18, 2013) ("[T]he inability to assert a claim recognized by Texas law in another state does not create a reason to deny enforcement of a forum-selection clause.").

[¶22] The Texas Supreme Court has explained:

Forum-selection clauses provide parties with an opportunity to contractually preselect the jurisdiction for dispute resolution. In Texas, forum-selection clauses are generally enforceable and should be given full effect. Failing to give effect to contractual forum-selection clauses and forcing a party to litigate in a forum other than the contractually chosen one amounts to clear harassment ... injecting inefficiency by enabling forum-shopping, wasting judicial resources, delaying adjudication on the merits, and skewing settlement dynamics.

Pinto , 526 S.W.3d at 436-37 (internal citations and quotations omitted). In Durdahl v. Nat'l Safety Ass'n, Inc. , 988 P.2d 525 (Wyo. 1999), we rejected the appellant's argument that promissory estoppel and fraudulent misrepresentation claims were outside of the parties' agreement and thus not subject to the contract's forum-selection clause. Id. at 529. Observing that those equitable claims "necessarily implicate the terms of the contract," we concluded that " '[a]rtful pleading' of noncontract claims to avoid a forum selection clause will not be tolerated." Id. (citation omitted).

[¶23] Our analysis is not governed by the label placed upon the cause of action. All Finley's claims must be resolved through an interpretation of the Agreement. Texas law does not prevent enforcement of the forum-selection clause even though the adverse possession claim is unavailable to Finley in Texas. Finley's claims necessarily will be resolved by the Texas court's determination of its contractual rights.

Wyoming's Public Policy and Enforcement of the Forum-Selection Clause

[¶24] Finley also contends, "Wyoming has a strong public policy in determining title to real property located within its boundaries" and therefore the forum-selection clause should not be enforced in this case. While a forum-selection clause is presumed valid and enforceable, there are exceptions. A party attempting to show that such a clause should not be enforced bears a heavy burden. In re Laibe Corp. , 307 S.W.3d 314, 316 (Tex. 2010). The party opposing enforcement must clearly show, among other things, "enforcement would contravene a strong public policy of the forum where the suit was brought." Id. (citation and quotations omitted). Finley has not met its burden. It cites no case law or other authority supporting its argument that enforcement of a forum-selection clause runs counter to public policy favoring local determination of title to realty. We have said:

The right of private contract is no small part of the liberty of the citizen, and that the usual and most important function of courts of justice is rather to maintain and enforce contracts, than to enable parties thereto to escape from their obligation on the pretext of public policy, unless it clearly appear that they contravene public right or the public welfare.

Nuhome Invs., LLC v. Weller , 2003 WY 171, ¶ 8, 81 P.3d 940, 944 (Wyo. 2003) (citations omitted). "Therefore, you have this paramount public policy to consider-that you are not lightly to interfere with this freedom of contract." Id. (citations and quotations omitted).

We find no reason to look further in this case where the claim to title arises from the Agreement.

CONCLUSION

[¶25] "[Though] 'the party who brings a suit is master to decide what law he will rely on,' whether a forum-selection clause applies depends on the factual allegations undergirding the party's claims rather than the legal causes of action asserted." Pinto , 526 S.W.3d at 433 (citations omitted). All Finley's equitable claims arise from the Agreement and, but for the Agreement, there is no basis upon which the claims can rest. Accordingly, the district court did not abuse its discretion in declining to exercise jurisdiction based on the forum-selection clause. This action must be brought in Texas.

[¶26] Affirmed.

      An action for declaratory judgment allows certain persons with a qualified claim regarding a written instrument to seek a declaration of rights under that instrument. Wyo. Stat. Ann. §§ 1-37-101 through -115 (LexisNexis 2017).

      A person in possession of real property may bring a quiet title action "against any person who claims an estate or interest therein adverse to him" to determine "the adverse estate or interest." Wyo. Stat. Ann. § 1-32-201.

      "To prevail on an adverse possession claim, the claimant must show 'actual, open, notorious, exclusive and continuous possession of the disputed parcel which is hostile and under claim of right or color of title.' " Galiher v. Johnson , 2018 WY 145, ¶ 7, 432 P.3d 502, 507 (Wyo. 2018) (citation omitted); Wyo. Stat. Ann. § 1-3-103.

      Finley's claim for adverse possession alleges:
      VIII. FIFTH CLAIM FOR RELIEF - ADVERSE POSSESSION
      ...
      56. Since the date of Assignment Nos. 1 & 2 on February 28, 2008, Plaintiff has openly, notoriously, exclusively and continuously exercised ownership and control over all of the lands covered by the Subject Leases including Subject Lease No. 5 as well as those lands identified in Paragraphs 14, 15 & 16 above.
      57. Since the date of Assignment Nos. 1 & 2 on February 28, 2008, Plaintiff has openly, notoriously, exclusively and continuously operated all of the oil and gas wells located on lands covered by the Subject Leases including Subject Lease No. 5 as well as those lands identified in Paragraphs 14, 15 & 16 above.
      58. Since the date of Assignment Nos. 1 & 2 on February 28, 2008, Plaintiff has openly, notoriously, exclusively and continuously received all proceeds generated by operation of all oil and gas wells located on lands covered by the Subject Leases including Subject Lease No. 5 as well as those lands identified in Paragraphs 14, 15 & 16 above.
      59. Plaintiff has acquired through adverse possession all right, title and interest to the Subject Leases, including Subject Lease No. 5 as well as those lands identified in Paragraphs 14, 15 & 16 above, covering all depths and formations from the surface to the core of the earth.
      Paragraphs 14-16, referred to in this claim, state:
      14. Defendant failed to assign to Plaintiff in Assignment No. 1 the following lands:
      Subject Lease No. 1 - 0001033145/000 - Converse & Niobrara County, Wyoming
      T36N, R67W - Section 5: Lots 1, 2; S2NE
      T36N, R67W - Section 3: S2NE, N2SE
      Subject Lease No. 2 - 0001031335/000 - Niobrara County, Wyoming
      T36N, R67W - Section 6: Lots 1, 2, S/2NE & SE
      T36N, R67W - Section 8: E2NE, NWNE
      T36N, R67W - Section 9: NWNE, NW
      Subject Lease No. 3 - 0001031351/002 - Niobrara County, Wyoming
      T36N, R67W - Section 3: NESW
      T36N, R67W - Section 9: SWNE, E/2SW, NWSE
      Subject Lease No. 4 - 0001031351/003 - Niobrara County, Wyoming
      T36N, R67W - Section 3: NESW
      T36N, R67W - Section 9: SENW, E/2SW, NWSE
      Subject Lease No. 7 - 0001031337/000 - Niobrara County, Wyoming
      T36N, R67W - Section 27: NW
      15. Defendant failed to assign to Plaintiff in Assignment No. 2 the following lands:
      Subject Lease No. 6 - 0001031342/000 - Converse County, Wyoming
      T36N, R67W - Section 21: SWSE, E/2SE, SENE
      Subject Lease No. 8 - 0001031331/000 - Converse County, Wyoming
      T36N, R67W - Section 31: Lots 1, 3, 4, E/2SW, S/2NE, SE
      T36N, R67W - Section 32: SWNW
      16. Defendant failed to assign to Plaintiff Subject Lease No. 5 which includes the following lands:
      Subject Lease No 5 - 0001031351/001 - Converse & Niobrara County, Wyoming
      T36N, R67W - Section 3: Lot 2, 3, SENW, NESW, SWSW, NESW
      T36N, R67W - Section 9: SENW, E/2SW, NWSE, E/2NE, SWSE and E/2SE
      T36N, R67W - Section 10: NWNW

      EP Energy devotes a large portion of its brief arguing the adverse possession claim is factually and legally impossible. In Roush v. Roush , we considered a dispute between the owner of surface land claiming a partial interest in a mineral estate by virtue of adverse possession. Roush v. Roush , 589 P.2d 841, 842 (Wyo. 1979). We held without mining operations on the disputed premises, the elements necessary to show adverse possession could not exist. Id. at 843. EP Energy contends Finley could not have conducted mining operations on the premises in dispute here because the requirements of state and federal statutes relating to oil and gas operations would not approve operations in the deep formation. Therefore, as in Roush , Finley's adverse possession claim is meritless because Finley cannot show it conducted operations on the disputed premises. We need not reach this argument here.


text:
    Rhonda Lea GALLAGHER, Appellant (Plaintiff), v. Curtis Darrel TOWNSEND, Appellee (Defendant).
    S-18-0211
    Supreme Court of Wyoming.
    June 25, 2019
    Representing Appellant: J. Craig Abraham, Liberty Law Offices, P.C., Gillette, Wyoming.
    Representing Appellee: Christopher R. Ringer, Ringer Law, P.C., Gillette, Wyoming.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   BOOMGAARDEN, Justice.

[¶1] Appellant, Rhonda Gallagher, appeals from the district court's order partitioning a vacant lot that she and Appellee, Curtis Townsend, own as joint tenants with rights of survivorship. Ms. Gallagher contends that the district court improperly partitioned the property. She also contends that the district court erred in determining the amount of property taxes Mr. Townsend paid. We reverse and remand.

ISSUES

[¶2] Ms. Gallagher raises two issues, which we restate as follows:

1. Did the district court err when it partitioned the property?
2. Did the district court err when it determined Mr. Townsend paid $4,241.53 in property taxes?

FACTS

[¶3] The parties cohabitated from approximately October 2007 until March 2009 and share a child together. In 2008, Mr. Townsend purchased a vacant lot for $25,014.20 with his own funds. The warranty deed conveyed the property to the parties as joint tenants with rights of survivorship. The parties each paid property taxes through the years-Ms. Gallagher paid $510 in property taxes and Mr. Townsend paid the remaining property taxes. After Ms. Gallagher moved to Colorado in July 2013, Mr. Townsend invoiced Ms. Gallagher for maintenance costs as they arose, but she did not pay the invoices.

[¶4] In August 2017, Ms. Gallagher filed suit seeking partition of the lot. The district court appointed partition commissioners, who determined that the property could not be partitioned in kind without manifest injury to its value and should be sold. The district court agreed, ordered the sale of the lot if neither party elected to purchase the other party's share, and valued the property at $33,500. Although the district court determined that each party owned a one-half interest in the lot, it ordered that Mr. Townsend be paid the first $25,017.20 -the amount he paid to purchase the property-from the sale or election proceeds and that any excess proceeds be divided equally between the parties. The district court determined that an equitable division of the proceeds was proper because "Mr. Townsend paid the entire purchase price, maintained[ ] the property, and paid the majority of the expenses associated with the property during the parties' short relationship." Ms. Gallagher timely appealed.

STANDARD OF REVIEW

[¶5] "Following a bench trial, this court reviews a district court's findings and conclusions using a clearly erroneous standard for the factual findings and a de novo standard for the conclusions of law." Hofstad v. Christie , 2010 WY 134, ¶ 7, 240 P.3d 816, 818 (Wyo. 2010) (citation omitted).

[¶6] "Requests for equitable relief are matters over which the district court exercises broad discretion." Jacoby v. Jacoby , 2004 WY 140, ¶ 7, 100 P.3d 852, 855 (Wyo. 2004) (citation omitted).

In determining whether there has been an abuse of discretion, we focus on the "reasonableness of the choice made by the trial court." If the trial court could reasonably conclude as it did and the ruling is one based on sound judgment with regard to what is right under the circumstances, it will not be disturbed absent a showing that some facet of the ruling is arbitrary or capricious.

Id. (citations omitted). However, "[e]ven when acting in equity, the district court is not free simply to do what it thinks is fair." Id. ¶ 10, 100 P.3d at 855. "Equitable discretion may be limited by statute." McCarthy v. Lippitt , 150 Ohio App. 3d 367, 381, 781 N.E.2d 1023, 1033 (2002) (citation omitted).

DISCUSSION

I. Did the district court err when it partitioned the property?

[¶7] Partition is a civil action; the rules of equity supplement, but do not substitute for, the statutory procedures. Platt v. Platt , 2011 WY 155, ¶ 18, 264 P.3d 804, 808-09 (Wyo. 2011) (summarizing the court's lengthy discussion of partitions in Field v. Leiter , 16 Wyo. 1, 90 P. 378 (Wyo. 1907) ). Wyoming Statutes §§ 1-32-101 et seq. set forth the procedures for partition of real property. Martin v. DeWitt , 2014 WY 112, ¶ 22, 334 P.3d 123, 129 (Wyo. 2014) (citation omitted). When, as here, property cannot be partitioned in kind without manifest injury to its value, the statutes provide that "[t]he money or securities arising from a sale of or an election to take the estate shall be distributed and paid by order of the court to the parties entitled thereto, in lieu of their respective parts and proportions of the estate and according to their just rights therein." Wyo. Stat. Ann. § 1-32-114 (LexisNexis 2017).

[¶8] We first review whether the district court erred in determining Ms. Gallagher's and Mr. Townsend's respective shares in the property. We then review whether the district court properly distributed the sale or election to take proceeds "according to their just rights therein." Id.

A. The parties' respective shares.

[¶9] "In a suit for partition, the court must first determine the respective shares which the parties hold in the property, before the property can be divided." 2 Tiffany Real Property § 479.1 (3d ed.), (database updated Sept. 2018); see also Wyo. Stat. Ann. § 1-32-114 (money "from a sale of or an election to take the estate shall be distributed and paid" to the parties, "in lieu of their respective parts and proportions"). In Hofstad v. Christie , we addressed how courts should determine the shares of unmarried parties who hold property as tenants in common when the instrument does not specify their shares. Hofstad , ¶ 8, 240 P.3d at 818-19. In reviewing the district court's decision to award Ms. Christie one-half of the equity in the home at issue, we applied the widely accepted rule "that, 'if the instrument does not specify the shares of each co-tenant, it will be presumed that they take equal, undivided interests.' " Id. ¶ 8, 240 P.3d at 818 (quoting Bixler v. Oro Management , 2004 WY 29, ¶ 19, 86 P.3d 843, 850 (Wyo. 2004) ). We also applied the rule regarding what parol evidence may be presented to rebut the presumption. Id. (citing Bixler , ¶ 19, 86 P.3d at 850 ). Such evidence may include "proof that the co-tenants contributed unequal amounts toward the purchase price of the property, and there is neither a family relationship among the co-tenants nor any evidence of donative intent on the part of those who contributed more than their pro rata amounts toward the purchase price." Id. ¶ 8, 240 P.3d at 819.

[¶10] The district court applied the Hofstad presumption, but expressed some uncertainty regarding whether the rules set forth in Hofstad apply when the parties hold property as joint tenants with rights of survivorship, rather than as tenants in common. Because unity of interest is not necessary to create a joint tenancy, Oatts v. Jorgenson , 821 P.2d 108, 114 (Wyo. 1991) (citation omitted), we conclude the district court correctly applied Hofstad's rebuttable presumption of equal shares to this partition of property held in joint tenancy. See also 20 Am. Jur. 2d Cotenancy and Joint Ownership § 116, (database updated May 2019) ("A rebuttable presumption of equal shares applies as well to property held in joint tenancy, [a] party challenging the presumption that property held in joint tenancy is equally owned has the burden of proof."); 48A C.J.S. Joint Tenancy § 28, (database updated June 2019) ("The shares or interests of joint tenants are presumed to be equal although this presumption of equal ownership is rebuttable.").

[¶11] Applying Hofstad , the district court determined that "each party owns an undivided, one-half interest in the property," because Mr. Townsend had failed to rebut the presumption of equal shares. The district court based its determination on the parties' admission that "they were in a dating type relationship which produced a child[,]" and evidence that they "purchased the property with the intent to develop it jointly." Mr. Townsend attempts to distinguish Hofstad , but more generally relies on broad equitable powers he asserts the district court properly exercised to distribute the proceeds from the partitioned property. Neither party argued, and we found nothing in the record to suggest, that the district court's findings of fact are clearly erroneous, or that the district court's corresponding conclusion that Mr. Townsend failed to rebut the presumption of equal shares constitutes legal error. We therefore uphold the district court's conclusion that "each party owns an undivided, one-half interest in the property."

B. Distribution "according to their just rights therein."

[¶12] The district court expressly relied on the phrase "according to their just rights therein[,]" in Wyoming Statute § 1-32-114, to divide the property's value equitably, rather than evenly, considering "the party through whom the property was acquired" and other factors that apply to fair and equitable division of marital property. For the reasons provided below, we conclude that Wyoming Statute § 1-32-114 limits, rather than sanctions, a district court's equitable powers to distribute partition proceeds after the court has determined the parties' respective shares in the property.

[¶13] We have never interpreted Wyoming Statute § 1-32-114. In doing so now, we again look to Ohio law for guidance, as Wyoming's partition statutes were modeled after Ohio's Code. Platt , ¶ 19, 264 P.3d at 809 ; Field , 90 P. at 387. In particular, we note that the Ohio Court of Appeals interpreted an almost identical provision of the Ohio Code in McCarthy , 150 Ohio App. 3d 367, 781 N.E.2d 1023, to limit a trial court's equitable power to distribute proceeds after the trial court had determined the parties' interests in property.

[¶14] The relevant facts in McCarthy are straightforward. In 1995, Laverne and Darlene Winland sold their 55-acre parcel of property to Mr. and Mrs. Lippitt, as trustees for the L.L. Trust, and to Darrell Gamiere. McCarthy , 150 Ohio App. 3d at 371, 781 N.E.2d at 1026. The Lippitts and Mr. Gamiere each held a one-half interest in the property. Id. , 150 Ohio App. 3d at 372, 781 N.E.2d at 1026. In 2000, Mr. Gamiere transferred his interest to Mr. and Mrs. McCarthy for $10,000. Id. Later that year, the Lippitts transferred the interest they held as trustees to themselves as individuals. Id. The McCarthys eventually filed a partition action. Id. The trial court found that the McCarthys owned a one-half undivided interest in the property and ordered that it be sold. Id. , 150 Ohio App. 3d at 372-73, 781 N.E.2d at 1027. It awarded the McCarthys $10,000 from any proceeds and ordered any excess proceeds go to the Lippitts. Id. , 150 Ohio App. 3d at 373, 781 N.E.2d at 1027.

[¶15] On appeal, the McCarthys argued that they should receive a proportional share of any excess proceeds, rather than a lump-sum payment of $10,000. Id. , 150 Ohio App. 3d at 380, 781 N.E.2d at 1032. To support their argument, they directed the court to Ohio Revised Code § 5307.14. Id. The statute stated: "[t]he money or securities arising from a sale of, or an election to take an estate, shall be distributed and paid, by order of the court of common pleas, to the parties entitled thereto, in lieu of their respective parts and proportions of the estate, according to their rights therein." Id. (emphasis omitted). The McCarthys contended that, as one-half owners of the property, they should also receive one-half of any proceeds remaining after payment of outstanding debts and liens on the property. Id. , 150 Ohio App. 3d at 380, 781 N.E.2d at 1032-33. The Lippitts countered that partition proceedings are equitable and are reviewed for abuse of discretion. Id. , 150 Ohio App. 3d at 380, 781 N.E.2d at 1033. They asserted that no statutory law or case law required partition proceeds to be divided proportionally. Id.

[¶16] The appellate court agreed with the McCarthys, explaining that Ohio Revised Code § 5307.14 requires proceeds from a partition to be "distributed proportionately where there are proportional interests are at stake," such as a one-half interest. Id. , 150 Ohio App. 3d at 381, 781 N.E.2d at 1033-34 (citing 4 Thompson on Real Property § 1829 (1979) ("The proceeds from a [partition] sale are treated as if they were still land and should be divided according to the respective interests of the parties in the land.")). "After deducting all expenses, liens, and equitable adjustments, the cotenants continue[d] to own any remaining funds in the same proportion they owned the real property." Id. , 150 Ohio App. 3d at 381, 781 N.E.2d at 1034. The trial court therefore should have respected the proportional interests of the parties in the partition proceedings. Id. Instead, the trial court effectively divested the McCarthys of their proportional interest in the excess proceeds. Id. , 150 Ohio App. 3d at 371, 781 N.E.2d at 1026.

[¶17] Prior to its amendment in 2010, Ohio Revised Code § 5307.14 was nearly identical to Wyoming Statute § 1-32-114, which provides:

The money or securities arising from a sale of or an election to take the estate shall be distributed and paid by order of the court to the parties entitled thereto, in lieu of their respective parts and proportions of the estate and according to their just rights therein.

Wyo. Stat. Ann. § 1-32-114.

[¶18] Any differences in statutory language are insignificant. The Ohio statute referred to an "order of the court of common pleas" rather than "the court," and it included more commas than the Wyoming statute. Compare McCarthy , 150 Ohio App. 3d at 380, 781 N.E.2d at 1032, with Wyo. Stat. Ann. § 1-32-114. The Ohio statute also referred to the parties' "rights therein," where the Wyoming statute refers to the parties' "just" rights therein. Id.

[¶19] Although Black's Law Dictionary does not define "just rights," it defines the word "just" to mean "[l]egally right; lawful; equitable." Black's Law Dictionary 1033 (11th ed. 2019). A "right" is "[s]omething that is due to a person by just claim, legal guarantee, or moral principle." Black's Law Dictionary 1581 (11th ed. 2019). The word "just" may mean "equitable"; however, "just rights" are not synonymous with "equitable rights." An "equitable right" is "[a] right cognizable within a court of equity." Id. Several cases support the conclusion that the word "just" does not render the two statutes substantively different. See Mayland v. Flitner , 2001 WY 69, ¶¶ 33-34, 28 P.3d 838, 849-50 (Wyo. 2001) (explaining that there is no difference in meaning between "due compensation" and "just compensation"); Ryerson v. Boorman , 8 N.J. Eq. 701, 705 (N.J. 1849) (reflecting that "Due rights means just rights-legal rights"); Whitwell v. Warner , 20 Vt. 425, 445 (Vt. 1848) (noting that "we must not forget, that all just rights are entitled to a fair consideration in a court of justice").

[¶20] We interpret the plain meaning of the phrase "according to their just rights therein," in Wyoming Statute § 1-32-114, the same as the Ohio Court of Appeals interpreted the plain meaning of the phrase "according to their rights therein," in Ohio Revised Code § 5307.14 -to require a court to respect the parties' proportional interests in the property subject to partition, and to thereby limit a court's equitable discretion in a partition action. When the district court interpreted Wyoming Statute § 1-32-114 to allow it to "equitably divide the proceeds from the sale or election of one [of] the parties," regardless of its determination that each party held an undivided one-half interest in the property, the district court erroneously divested Ms. Gallagher of her one-half interest.

[¶21] We considered Mr. Townsend's argument that the district court's decision is analogous to and supported by the Mississippi Court of Appeals' decision in Jones , 95 So. 3d 751. In Jones , Mr. Graphia and Ms. Jones "were romantically involved, but never married." Jones , 95 So. 3d at 752. In 2010, they bought a house as joint tenants with rights of survivorship. Id. Mr. Graphia paid the entire purchase price of $274,000 for the home and Ms. Jones paid nothing. Id. at 753. When their relationship ended, Mr. Graphia filed to partition the property. Id. Following trial, the chancellor decided that he could adjust the equities between the parties under Mississippi Code Annotated § 11-21-9 (Rev. 2004). Id. He also applied Mississippi Code Annotated § 11-21-33 (Rev. 2004), which addresses owelty. Id. The chancellor awarded Mr. Graphia $274,000-the amount he paid to purchase the home-and he awarded Ms. Jones nothing. Id.

[¶22] Mr. Townsend's reliance on Jones is misplaced for three reasons. First, Wyoming's partition statutes are modeled after the Ohio Code, not the Mississippi Code. Platt , ¶ 19, 264 P.3d at 809 ; Field , 90 P. at 387. That fact is particularly important because the chancellor relied on express statutory authority to determine title and adjust equities to support his decision. Jones , 95 So.3d at 753, 755.

[¶23] Second, the rationale of the dissenting justices in Jones is more persuasive and in line with our interpretation of Wyoming Statute § 1-32-114 than the Jones majority. Justice Carlton concluded that the majority allowed the trial court to deviate from the statutory procedure. Id. at 755. In his view, the only equities the chancellor should have adjusted were those that arose out of cancellation of joint title, such as rents, improvements to the property, payment of taxes, and costs of maintenance and upkeep. Id. at 756. The chancellor should not have considered the payment of the original purchase price in adjusting the equities because the original purchase price related to formation of the joint tenancy, not its cancellation. Id. In his dissent, Justice Maxwell reasoned that "instead of partitioning the property, the chancellor essentially performed an equitable distribution of the house, justifying his decision to award one joint tenant all the proceeds of a partition sale based primarily on the 'putative-spouse doctrine.' " Id. In his view, although Mississippi Code Annotated § 11-21-9 allowed the chancellor "to use a cotenant's otherwise equal share of proceeds to offset what he owes his cotenant for rent, improvement costs, taxes, or other similar debts," the statute did not allow the chancellor "to disregard title and to divide sale proceeds based solely on equity." Id. at 757 (emphasis in original).

[¶24] Third, the chancellor did not determine the interests of the parties before dividing the partition proceeds. Id. at 752-55. The chancellor's approach was therefore different from the approach instructed by the plain language of Wyoming Statute § 1-32-114.

[¶25] The district court followed Wyoming law by first determining the parties' respective interests in the property. The instrument of title (the deed declaring them joint tenants) did not specify each party's interest, so the court properly presumed the parties took "equal, undivided interests." It also properly determined that Mr. Townsend did not rebut the presumption of equal shares under Hofstad , ¶ 8, 240 P.3d at 818-19. After deciding the parties' interests, the district court erred by exercising its equitable powers to divest Ms. Gallagher of her interest in the property. Once it decided the parties were entitled to equal shares, the fact that Mr. Townsend provided the entire purchase price was no longer relevant.

[¶26] The district court was, however, authorized to make a final accounting consistent with a joint tenant's right to proportionate reimbursement for necessary expenditures made in protection of the joint property. See 59A Am. Jur. 2d Partition § 137 (database updated May 2019) ("an accounting of income and expenses of the property sought to be partitioned ... is incident to a suit for partition"); 48A C.J.S. Joint Tenancy § 26, (database updated June 2019) ("[a] joint tenant may also be entitled to proportionate reimbursement for necessary expenditures made in protection of the joint property, such as the payment of the mortgage or taxes, or for the removal of liens"); see also Hackett v. Linch , 57 Wyo. 289, 116 P.2d 868, 870-72 (Wyo. 1941) (discussing various types of claims for reimbursement out of partition funds). Those adjustments may address, for example, disproportionate payment of property taxes and maintenance costs. See McCarthy , 150 Ohio App. 3d at 379, 781 N.E.2d at 1032. They may not include the amount either party contributed to purchase the property because the purchase price does not arise out of termination of the joint tenancy or affect the proportional interests of the parties. See 2 Tiffany Real Property § 428 (3d ed.), (database updated Sept. 2018) ("Upon partition of property held in joint tenancy, all equities growing out of that relationship should be considered. However, contributions of the parties to the property prior to the joint tenancy are not equities growing out of that relationship."); Schippacasse , 17 Ohio Law Abs. at 189. If the court determines an adjustment is warranted, then it should account by deducting the amount owed from the appropriate party's share and adding that amount to the other party's share. 59A Am. Jur. 2d Partition § 137, (database updated May 2019).

[¶27] In its partition order, the district court expressed concern that Mr. Townsend paid more in property taxes than Ms. Gallagher and has maintained the property. To account for such matters, the district court may reduce the proceeds that Ms. Gallagher would receive in order to reimburse Mr. Townsend for any disproportionate amount of money he paid for property taxes and maintenance costs. We therefore remand for the limited purpose of determining whether Ms. Gallagher's share of the sale or election to take proceeds should be reduced by Mr. Townsend's disproportionate payment of property taxes and maintenance costs and, if so, in what amount.

II. Is the district court's finding that Mr. Townsend paid $4,251.53 in property taxes clearly erroneous?

[¶28] We agree with the parties that the district court's finding that Mr. Townsend paid $4,251.53 in property taxes is clearly erroneous. The district court found that Ms. Gallagher paid $510 in property taxes. Neither party contests the court's finding regarding the amount of property taxes she paid. Ms. Gallagher points out, and Mr. Townsend does not dispute, that the total amount of property taxes paid on the property was $1,777.44. Assuming that amount is correct, since Mr. Townsend appears to have paid all of the remaining property taxes, he could not have paid more than $1,267.44-the difference between $1,777.44 and $510.

CONCLUSION

[¶29] The district court erred when it ordered that "Mr. Townsend is entitled to the first $25,017.20 in proceeds" from sale of the property after determining that "each party owns an undivided, one-half interest in the property." The district court may reduce Ms. Gallagher's fifty-percent share of proceeds by any disproportionate amount of property taxes and maintenance costs paid by Mr. Townsend. The district court's finding that "Mr. Townsend has paid $4,241.53 in property taxes" is clearly erroneous. We reverse and remand for the district court to issue a new Order on Partition of Property consistent with this opinion.

      The district court found that Mr. Townsend paid $4,241.53 in property taxes, but both parties acknowledge that amount is in error. We address this error below.

      Although the court found that Mr. Townsend paid $25,014.20 for the property, it ordered that he receive the first $25,017.20 from any sale, attributing that as the amount he paid to purchase the property. Mr. Townsend states that it is unknown why the court awarded him $3 more than the purchase price. The district court may wish to address this discrepancy on remand.

      We note that if either Ms. Gallagher or Mr. Townsend should elect to purchase the other party's share of the property under Wyoming Statute § 1-32-109, the property shall be adjudged to the electing party on paying the other party their "proportion of the appraised value according to their respective rights" rather than "their just rights therein." Compare Wyo. Stat. Ann. § 1-32-109 (LexisNexis 2017), with Wyo. Stat. Ann. § 1-32-114. For the same reasons stated below at ¶¶ 18-20, this difference in statutory language is not substantive.

      " 'Unity of interest'... means that the joint tenants' shares are all equal and the duration and quality, legal or equitable, of their estates are the same." 20 Am. Jur. 2d Cotenancy and Joint Ownership § 5, (database updated May 2019).

      We previously found McCarthy persuasive authority on a different matter of first impression: modification of a partition commissioners' report. Platt , ¶¶ 19-20, 264 P.3d at 809-11.

      There is not a common definition of "equitable adjustments" pertaining to partition proceedings. However, the term is commonly used to refer to adjustment of accounts and claims between parties. See 2 Tiffany Real Property § 479.1 (3d ed.), (Sept. 2018 update) (addressing "[r]elief incidental to partition; adjustment of claims and equities between parties"); but see Ramer v. Smith , 896 N.E.2d 563, 569 (Ind. Ct. App. 2008) (using the term to refer to equitable adjustment of shares). In Ohio, the term is used to refer to adjustments to the final awards that account for a party's disproportionate payment of taxes and insurance, as well as costs associated with maintenance and improvement of the property. See McCarthy , 150 Ohio App. 3d at 379, 781 N.E.2d at 1032 ; Sword v. Sword , 86 Ohio App. 3d 161, 165, 620 N.E.2d 199, 202 (Ohio Ct. App. 1993) ; Edwards v. Edwards , 107 Ohio App. 169, 173-74, 157 N.E.2d 454, 458-59 (Ohio Ct. App. 1958) ; McCarthy v. Lippitt , 2003-Ohio-5157, ¶¶ 24-28, 2003 WL 22232107, *5 (Ohio Ct. App. 2003). It is not used to refer to adjustments based on the amount of money a party paid to purchase the property. See Schippacasse v. Brandt , 17 Ohio Law Abs. 188, 189 (Ohio Ct. App. 1934) ("[i]t is our understanding that only those equities arising from the joint ownership of the common property may be adjusted by an accounting in a partition suit"); see also Jones v. Graphia , 95 So.3d 751, 755 (Miss.App. 2012) (Carlton, J., dissenting) (noting that the equities that arise out of cancellation of joint title include rents, improvements to the property, payment of taxes, and costs of maintenance and upkeep, but not the original purchase price because the original purchase price relates to formation of the joint tenancy).

      The version of Ohio Revised Code § 5307.14 the court evaluated in McCarthy provided:
      The money or securities arising from a sale of, or an election to take an estate, shall be distributed and paid, by order of the court of common pleas, to the parties entitled thereto, in lieu of their respective parts and proportions of the estate, according to their rights therein.
      McCarthy , 150 Ohio App. 3d at 380, 781 N.E.2d at 1032 (emphasis omitted). The Ohio Legislature amended § 5307.14 effective September 13, 2010 to, among other things, codify the McCarthy court's interpretation. See Ohio Rev. Code Ann. § 5307.14 (LexisNexis 2019) ; 2010 Ohio Laws File 45 (Sub. H.B. 292).

      Assuming the property sells for the amount the court determined it is worth-$33,500-Mr. Townsend would receive $25,017.20 for his initial investment plus half of the remaining proceeds, $4,241.40. In other words, he would receive 87% of the property interest. Ms. Gallagher would receive $4,241.40-only 13% of the property interest-far less than her 50% ownership interest.

      Mississippi Code Annotated § 11-21-9, unlike Wyoming Statute § 1-32-114, provides:
      If the title of the plaintiffs seeking partition or sale of land for a division shall be controverted, it shall not be necessary for the court to dismiss the complaint, but the question of title shall be tried and determined in the suit and the court shall have power to determine all questions of title, and to remove all clouds upon the title, if any, of the lands whereof partition is sought and to apportion encumbrances, if partition be made of land encumbered and it be deemed proper to do so. The court may adjust the equities between and determine all claims of the several cotenants, as well as the equities and claims of encumbrancers.
      Miss. Code Ann. § 11-21-9 (LexisNexis 2019) (emphasis added). The statute has not been amended since 1991. Id.

      Mississippi Code Annotated § 11-21-33 provides: "[i]n all cases where owelty is allowed, it shall be a lien upon the share of the party charged therewith, which shall be superior to all other liens made or suffered by such party." Miss. Code Ann. § 11-21-33 (LexisNexis 2019). The statute has not been amended since 1942. Id. Wyoming has no such owelty statute.

      "Owelty" is a common law doctrine where one party pays a sum of money to another when real property subject to partition in kind cannot be divided into exactly equal shares. Platt v. Platt , ¶ 49, 337 P.3d 431, 443 (Wyo. 2014) (citation omitted). Owelty helps achieve an equitable division of the real property. Id. ¶¶ 49-50, 337 P.3d at 443 ; see also Black's Law Dictionary 1331 (11th ed. 2019) (defining "owelty" as "1. Equality as achieved by a compensatory sum of money given after an exchange of parcels of land having different values or after an unequal partition of real property. 2. The sum of money so paid.").

      A "putative marriage" is "[a] marriage in which one spouse believes in good faith that the two are married, but for some technical reason they are not formally married (as when the ceremonial official was not authorized to perform a marriage)." Black's Law Dictionary 1165 (11th ed. 2019). "The legal rule by which putative marriages exist is sometimes referred to as the putative-spouse doctrine ." Id. (emphasis in original).

      Although Ms. Gallagher identifies the total amount of property taxes paid as $1,777.44, our review of the exhibit she relies on suggests that the total amount of property taxes paid, including penalties and interest, was $1,814.31. Consequently, Mr. Townsend would have paid $1,304.31 in property taxes.