*1 stay long you you how up to it is So * *” * there. unduly seems retrospect the sentence
If can be something which
severe, this upon a Pardons Board by the remedied record, together consideration during conduct Teton’s Mr. that of rehabilitation indicating
incarceration sen- reduction warranting some has sentence reduction Such
tence. undoubtedly occurred already once in due time. attention again given
will
Affirmed. JANKOVSKY, Timothy
Tim K. a/k/a Jankovsky, Appellant (Plain below),
tiff
v. MOTORS, corporation, Keith
HALLADAY Appellees (Defendants below).
No. 3891.
Supreme Wyoming. Court of
March
130 McINTYRE, J., PARK- and C.
Before GRAY, ER, and McEWAN JJ. delivered McINTYRE Chief Justice opinion of the court. by brought Jankovsky, Tim K.
Action was minor, allegedly a contract to disaffirm into Motors. Sum- entred granted the district mary judgment was Motors, and Tim court Jankov- sky appealed. has facts dispute pertinent find no to be hence fact and issue of consid- Findings tried. of fact are often place, in unnecessary, if not out of ered summary judgments. See connection with Holtzoff, Barron Federal Practice 3 1242, Procedure, p. Edi- (Rules 201 § however, In tion). this instance fact, lengthy findings has court important helpful in which we deem clear the basis its decision. We findings therefore set these in full: out “(a) That a ‘Used Car Order’ Defendant, prepared by the 1968, Motors, Inc., 29, November on purchaser described being Keith 1968 Oldsmobile Jankov- Street, Loveland, Colo- sky, 607 East 8th rado. pre-
“(b) Invoice’ That ‘Vehicle Defendant, Halladay Mo- pared tors, 1968, Inc., 30, November purchaser Invoice indicated Jankovsky. Keith Jankovsky Keith G. “(c) That par- A. are the natural Jankovsky Trilba Jankovsky, plaintiff, ents of Tim K. Loveland, Colo- parties and said reside rado. ais question the vehicle in
“(d) That 344878M165459, Oldsmobile, No. Id. titled the name vehicle was and said Wyoming under Certifi- Leland Sanders Simóla, Ted Cheyenne, appellant. of Title 2-367187. cate No. Godfrey, Paul B. Cheyenne, appellee Halladay Motors. parties for all That counsel “(e) appearance validity
No said Cer- of the Supreme stipulated Court for appellees Sanders Keith issued Leland tificate of Title Certificate said to the fact
I3I ‘obligations’) hereinafter called following on Title indicates holder, undersigned to the the under- reverse side: (hereafter signed sometimes called ‘Debt- Leland assigned by 1. Title grants to or’) (sometimes the holder here- Motors, Inc. Sanders to security after called Party’) a ‘Secured November *3 any following property interest in the and Halladay by assigned Title 2. was additions, and all accessions and substi- Motors, A. Trilba Inc. Keith and G. (hereafter tutions thereto or therefor Street, East Love- 8th 607 sometimes called ‘Collateral’).’ 29, land, 1968. on November Colorado application That “(k) for the title of application 3. An for Certificate pursuant the vehicle was made to Sec- 31, January until title was 31-33, Statutes, 31-32 and tions Wyoming 1969, signed application and said provide which statutes that the owner of by Jankovsky. under oath Tim permit op- a motor vehicle shall title, 2-390369, “(f) That the new No. upon any highway eration .of vehicle by Wyoming was issued the State of obtaining first a of without certificate Jankovsky and Trilba Keith G. A. application title and that for certificate 31, January of title shall the name ad- contain and “(g) That a 1966 automo- Sunbeam of person to whom the certifi- dress bile traded in on the in Oldsmobile of title cate shall be delivered. question and was titled in said Sunbeam 31-37, Wyoming That “(1) Section the State of Colorado in the name of Statutes, provides that the transferee and A. Jankovsky. Keith Trilba certificate, days present shall within ten a 30, “(h) 1968, That on November Keith County assigned, endorsed and to the Jankovsky and Jankovsky Trilba A. as- and application Clerk make for a new signed the title Sunbeam to Halla- certificate. day Motors, Inc. under oath. 31-30, “(m).That Wyoming Section Statutes, subsequent 30, the owner of a “(i) That defines vehicle to November person legal as a who Keith holds Jankovsky G. title Jankovsky purchased vehicle. general a automo- liability bile comprehensive policy Plaintiff, “(n) That the Tim K. Jan- agent Oldsmobile from an Love- kovsky, having applied under oath for land, Colorado, and said policy issued his Certificate of Title the name of placed in the name of Keith parents, Keith Trilba G. and A. Jan- Jankov- kovsky and Jankovsky. Trilba A. sky, compelled the Plaintiff testify above-captioned at the trial of Note, “(j) That an ‘Installment Se- contrary applica- under to his action oath curity Agreement and Financing State- tion for Title under Certificate ment’ Timothy executed Jankov- oath.” sky and Keith on November 29, 1968,by the security terms of which a facts, undisputed on the foregoing Based interest in the ques- 1968 Oldsmobile the trial court ordered: tion granted herein was Home “(a) That the Plaintiff is Loveland, State Bank of Colorado, in the claim set forth his actions to assert $2,598.96, to secure a loan of Complaint. in Amended his said Security Agreement contained ,to following language: pay- ‘To permit secure the That “(b) ment of indebtedness, the foregoing proceed to trial his Amended Com- liabilities, direct, indirect, and all plaint ab- a fraud constitute solute, contingent, due, Defendant, due or become and the Mo- Court now existing arising tors, or (all hereafter Inc.
“(c) That there is no purchase issue question Order” for the to des- Defendant, material fact ignate and the purchaser; his father as the he Motors, Inc., Judg- is entitled to caused the “Vehicle his Invoice” to name ment as a matter law.” purchaser; father as the he caused the being pur- certificate of title for the vehicle Claim assigned
Plaintiffs chased to be as the purchasers; signed appli- under oath an contention that he alone title, causing cation for a new certificate of negotiated agent with an owners; it to be issued to his purchase Oldsmobile; of the 1968 he surrendered to Motors a trade- car; did not see the in vehicle which was titled Colorado in plaintiff was therefore the one that con- parents; the names of his and he caused the says tracted. Plaintiff he caused title to *4 title for the trade-in vehicle to be trans- in parents be issued the of his names for parents Halladay. directly ferred to purpose the sole more obtaining favor- insuring able treatment when the automo- We will not dwell the fact that fi- liability property nancing bile loss. was done in in name Colorado the says plaintiff father, Plaintiff he did not intend for and his that or insurance pass parents. interest in the car parents obtained in the names of as insured, because these matters did not plaintiff admittedly dealt with Just however, affect important, It is agent Halladay, plaintiff salesman or so notice, as is mentioned in trial court’s agent could deal as an or the son of his 31-30, C.1967, findings, W.S.1957, § parents. necessary It for the defines the person owner of a vehicle as the personally see the in automobile who legal holds the title of such vehicle. purchase course, order to it. Of plaintiff And caused the title in this case to may guardians have acted as trustees or be parents. issued to his for their son purchasing in the motor ve- they hicle here involved. did query Halladay Whether or Our is this: What could is a matter between the son and his Motors have done which was not done in parents. It is not a matter for us to decide this case in order to make a safe contract dealing. case with which we are hardly of a minor? We see safely how it could have done otherwise
Estoppel it than did. In view of the hazards involved contracting plaintiff, with a minor like The district court predicate chose to its must assume would not have decision on the holding plaintiff is dealt if it had not been led believe and estopped by his actions to the claim assert understand that it was the sale to attempts make; permit and that to plaintiff’s parents. plaintiff proceed such to trial on claim a fraud constitute light, Viewed in this the doctrine of Motors. equitable estoppel clearly applicable is his actions to assert estoppel The doctrine of has as its that he alone contracted with purpose prevent injury arising ac from purchase of the 1968 Oldsmobile tions or declarations which have been acted question. good inequi on in faith and would be permit party table to to retract. Pickett W.R.C.P., 8(c), We realize Rule lists es- Corp. Wyo., v. Associates Discount toppel as an affirmative defense must 445, 447; Wyo., P.2d 43S Pacheco Con v. affirmatively pleaded. Although be Casualty Company, Wyo., tinental 476 P.2d “estoppel” word was not used in Halla- 166, 168. answer, day’s plead that a did plaintiff’s fraud it if doing Whatever reasons worked on so been, may purchase. he caused the Car were allowed to disaffirm “Used
1 nn Crosby v. we are not with that It was said in Strahan’s involved matter in the 492, 498, Estate, litigation. instant Wyo. 324 P.2d equitable estop- purpose of an fundamental Procedural Matters equivalent prevent
pel is to fraud or acts W.R.C.P., Also, makes 15(b), Rule thereof. appellant assigns procedural errors by express im tried or it clear that issues respects. several We find no merit in if raised in be treated as plied consent shall assignments such but will nevertheless Here, apparent it is from pleadings. speak briefly. of them estoppel was the matter of the record that Complaint Halladay’s argument to the raised and considered motion for judgment was not court, any objection that the without days served at least ten hearing before pleaded. estoppel defense of had not motion, required by Rule 56(c), prior to raised Inasmuch as issue was states, W.R.C.P. The rule the adverse level, and since trial and at the lower court party prior day hearing may serve suggested Halladay’s defendant answer Thus, opposing appear affidavits. it would fraud would result if claim was purpose ten-day provision is to allowed, amply we think the trial court was party allow time present for the adverse justified in applying estop- the doctrine of proper affidavits other or evidence for con pel. summary judg sideration on a motion for
ment. Parol Evidence Rule dealing with, In the case we are from estoppel, Aside the matter of had, early proceedings, the to dis- moved why parol see no reason evidence rule plaintiff’s of miss cause action for failure (that terms aof written instrument shall plaintiff upon of state a claim to by parol evidence) not be altered should not granted; relief could be and for failure to apply. parties plaintiff’s par- join indispensable — but ents. The court did dismiss allowed Plaintiff seeks to contradict and join plain- plaintiff time to amend and to vary the “Used Car in this case Order” necessary parties. parents Claim- tiff’s as parol evidence the effect that and not he part plaintiff to ing a failure on the of his father purchaser; was the he seeks timely comply with court’s amend and vary contradict and Invoice” “Vehicle order, Halladay stage filed a motion at that by parol that he evidence and not his father summary judgment. for purchaser; vary was the he would and alter an Eventually, plaintiff did file amended assignment of certificate of title from parents defend- his as complaint, joining by parol Motors evidence that completed, deposi- Pleadings were ants. and not parents assignee; was the taken, demand- were tions admissions were vary appli he would contradict and both the filed. An were given, ed and affidavits cation for a new certificate of title and the pretrial confer- setting the case for order new by parol certificate itself evidence to days in than ten more ence was entered plaintiff parents effect that and not his in the Contained of the time set. advance course, Of plaintiff owner. also seeks Halla- defendant pretrial memorandum of by parol evidence to show that he was own summary judgment. day motion was a vehicle, er despite of the trade-in the fact have appears also Such a motion that the certificate of title for such vehicle pretrial orally conference. at the made parents reflected that his were owners. proceedings preliminary think previously have plain- indicated that We taken not may show, plaintiff was against tiff that be able to as his were such pre at was made parents, a motion equitable surprise that he has an when interest In summary judgment. purchased vehicle from But trial conference judgment a recites that motion for such event, made that has been any showing no orally. also indicates submitted It had been additional evi- have offered could plaintiff against complaint the amended exist- have shown the dence which would that it failed dismissed for reason any material as to a issue ence of to state facts which relief could fact. based, against of “in the absence a claim trial a motion for new Plaintiff Appellant assigns Motors.” this findings exceptions filed also dismissal as error. These matters of law. fact and conclusions an heard, entered the court duly were Although plaintiff par named his summary amending the order for ents as defendants his amended com order, summary judgment The judgment. plaint, he made no effort to state a cause amended show things, was among other only prayer in of action them. The deposi- had considered the court complaint the amended which could have also amending order The file. anything prayer tions is a to do with excep- that, plaintiff’s because recites plaintiff adjudge tions, requested coun- specifically court purchaser mobile, Olds and true owner of the 1968 any provide proof of plaintiff sel for and that the are owners any of the put at issue nature plaintiff held thereof. trial court has made; previously findings of fact and that from this claim. produce any plaintiff failed to counsel for attempt No was made proof. complaint, attempt amended is made in the nothing
There the record or on appeal, plaintiff’s parents de- have proceedings appeal indicates that plaintiff. clared be trustees In- nature that has evidence deed, long is held findings put at issue contract and there- Motors fact which the court’s position fore not in to disaffirm con- *6 Hence, judgment predicated. must tract, left without claim prejudiced by hold situation, parents. In view of this summary being served with the motion for prejudiced was not the dis- days hearing on judgment ten before complaint missal of his amended insofar motion. pertains parents. as it
Appellant suggests error because the agree district court with the summary judgment for defendant genuine fact has issue as to material based Therefore, Motors was on unsworn statements summary to exist. shown counsel for The record sim- judgment proper. for all defendants was ply appellant’s does not bear out contention Affirmed. regard; in this and the order for court’s summary judgment its order of amend- PARKER, (concurring). negative any ment Justice idea of error on this score. the sole I concur in the result for reason issue as to
When court entered its order amend- there was no ing judgment appellee-Halladay Halladay, it material fact and provision judgment entitled to a granting summary included a Motors was judgment plaintiff’s parents. matter of law.