*1 “Servic- and “services.” “public utilities” “public into utili- es” cannot be absorbed McKONE, Appellant O. Robert violating
ties,” continue, without (Defendant), State, Story v. rule reiterated v. portions “all (Wyo.1988),that materia, pari act must read be and Claudia Melvin GUERTZGEN word, sentence of it every clause and wife, Guertzgen, husband and inoper- part will be considered so that be (Plaintiffs). Appellees argument con- superfluous.” or ative further, asserting step tinues at least one No. 90-247. “and services” is ren- that Supreme Wyoming. Court of superfluous if it is meaningless and dered way saying another only treated as Appellants con- utilities.” then “public provided FRD by
clude that the “services” ground transportation
employees relate to
and, hence, immunity is waived. give to to
We unable credence are appellants assert. We ambiguity pled appellants
have viewed the facts sustaining light most favorable Wyo
complaint. have held We Act,
ming 1-39- Governmental Claims W.S. act; tort seq., et is a close-ended claims unless a falls within one of the claim
statutory it will barred. exceptions State, (Wyo.1991).
Soles 1-39-108 is clear and un
Wyoming Statute immunity waive
ambiguous. applies governmental public entities whose em
ployees operate public utilities and who service, service, gas electric
provide services, including
other enumerated ground
ground transportation service. A
transportation service service
transports ground. over customers not, does
Wyoming Statute 1-39-108 within language, include the authorities that
its public employees or entities that
license electric, gas, transportation
provide hold, therefore, listed services. unambiguous,
that W.S. 1-39-108 that the enforcement of
least extent
this state’s financial laws FRD is not
employees of the included immunity waiver of articulated
statute. dismissing the district court order of complaint is affirmed. *2 underground storage fuel
to remove tanks? v. Little Horse
“4. Whether Olds Co., Wyo. 140 P. Cattle [Creek] if it should be overruled responsibilities of determinative of the for deed parties as to contracts between individuals?” agreed prop- to sell real In McKone Thermopolis to erty located in the Town of Guertzgens. parties drafted of a contract for the form (also land deed known as an installment contract). alia, provided, inter possession of the Guertzgens would have warranty deed would property, but that Scott, Shelledy, Shelle- R. Jr. William had payments until all the remain escrow Luhm, Worland, appellant. for dy and The final made under the contract. been Helling and Bruce N. Wil- Steven R. payment scheduled for June Bostwick, Casper, & loughby of Murane property, Guertzgens converted appellees. for station, liquor formerly into a service 1989, after the Guertz- store/lounge. In C.J., URBIGKIT, Before under gens had made substantial THOMAS, CARDINE, MACY and Thermopo- agreement, the Chief of GOLDEN, JJ. ordered the removal Department lis Fire underground fuel tanks be- property’s CARDINE, Justice. the Uniform Fire Code. cause violated McKone, un- of real the vendor not in use the Gu- The tanks were when deed, appeals executory contract for der an of the ertzgens possession took he the one court’s order that the district argued 1981. The of the aban- responsible for the removal pay the removal of the McKone should for storage tanks located doned because, the owner legally, he is still tanks on the (the remains warranty deed pur- affirm. of the until the full amount escrow price paid). chase has been following issues: raises the McKone memoranda parties submitted erred “1. Whether the District Court stipulated exhibits, a set of along with for beyond it the Contract when looked facts, ruled that district court which responsibilities of Deed to determine the proper- of the legal owner McKone was request parties to Fire Marshal’s as of the the removal ty storage underground fuel to remove in True v. Hi-Plains tanks. We stated tanks? Inc., 577 P.2d Machinery, Elevator erred District Court “2. Whether the “gen- (Wyo.1978),that a district beyond the Contract when it looked judgment for the success- finding eral Fire to determine Deed and the Code every finding it party carries with ful as to the of the responsibilities fairly reasonably fact which can under- request to remove Fire Marshal’s from the evidence.” drawn storage tanks? ground fuel provi erred contends that District Court “3. Whether the repair agreement for Little Horse in the upon it when relied Olds impose responsibility authority it of loss Co., and risk as Cattle [Creek] upon the of the tanks Gu- for the removal responsibilities determined the provisions, of these ertzgens. Neither request to the Fire Marshal’s parties as delivery prior to the final however, particular contingen- address this deed, Thus, though buyer usually to determine we look elsewhere even cy. for the removal of the possession, has title remains vested convey- there has been a seller.” Until *3 deed, contin- warranty ance the of the McKone also believes Uniform legal title and remains the ues to hold (1988 ed.) (Code) the holds Gu- Fire Code property. the owner of the responsible for the removal of ertzgens argues that the Guertz- tanks. McKone Guertzgens Because both the and of the gens fit the Code’s definition” “best definition of McKone fall within the Code’s person responsible the abandoned owner, language “or other we focus on the argument his on the Code tanks. He bases or vio person responsible for the condition 3.102, that the found in requirement, § lation” found in 3.102 to determine who § “owner, person occupant or other operator, the responsible for the removal of the or responsible for condition violation” requires addition to that —in the orders and notices comply owner, occupant being operator, the or fire marshall. McKone cites issued the person the property the must also be —one owner, “in the definition of which Code’s responsible for the condition or violation. agent or attor duly cludes his authorized Thus, the when the who owned devisee, fiduciary and a ney, purchaser, a important is an tanks were abandoned contingent interest person having vested or fixing liability for their factor in the remov question” to conclude in the al. respon Guertzgens are the ones of the tanks. sible for the removal confusingly stipulation, In a worded Ventling, agreed pri- In Matter Estate Guertzgens 771 and McKone “[t]hat acknowledged 9, (Wyo.1989), 389 we date of the or to 1981 [the purchaser under a contract deed], warranty ment for “equitable interest” in the deed has storage had been decommissioned tanks Thus, agree we that the Guertz- person, Deed not the prior a Contract for gens fit the definition of owner be- Code’s Defendant, and Plaintiffs or the [sic] equitable proper- interest cause time.” We have not been in use since that interest, contingent ty is also a stipulation to mean that interpret this Code includes under the definition of own- prop- same the vendor of the McKone was McKone, however, er. also fits the defini- erty the tanks were abandoned under when parties’ agreement pro- of owner. may previous a contract for deed. warranty deed remains in vides that most for the person until the have made all escrow (the previous of the tanks abandonment under the and the deed) a contract for is not purchaser under conveyed to warranty deed is them. Nonetheless, given party to this action. Rudolph has summarized the Professor us, we and the now before the facts for deed: legal principles of the contract party responsible hold that McKone is the typically pro- contract “The [for deed] he for the removal of the tanks because purchase vides for owner period price in installments over a of were abandoned. of title in the years and for retention supports the district Code price fully purchase until seller in favor of general finding judgment paid, gives right pos- but accordingly, Guertzgens; we do of the con- session from the execution issues raised not address the other Wyo- Rudolph, George, E. tract.” McKone. ming Mortgages, Law Real pp. 147-48 (1969). GOLDEN, J., URBIGKIT, C.J., and Ventling, See Matter Estate opinion. stated: “At all times dissent with wherein we
731
Justice,
text of
Pollution from Un-
URBIGKIT,
dissenting.
cent
the Water
Chief
derground
Ac-
Storage Tanks Corrective
into a
When Robert 0. McKone entered
1990, Wyo.Sess.
tion Act of
Laws ch. 98
Guertzgen
transaction
Melvin
through
(1990), W.S.
35-11-
35-11-1414
Guertzgen to sell a business lot
Claudia
also the
(Cum.Supp.1990).
See
Com-
May 9, 1981,
Thermopolis,
Wyoming
Response,
prehensive
Com-
Environmental
expected
that abandoned un-
none
them
pensation,
Liability Act of
derground
product
storage
petroleum
U.S.C.,
and the Resource
§
to haunt
would come back
both the
tanks
Recovery Act of
Conservation and
rap-
buyers.
change
Events
seller
U.S.C.,
See,
generally,
§
idly
in which we
live
*4
Act,
Quality
Wyoming Environmental
W.S.
them to
came back to
look with
35-11-403, 35-11-405,
through
35-11-101
disdain, suspicion
antagonism
and active
35-11-406,
through 35-11-1104
35-11-408
upon
underground petrole-
the abandoned
(Cum.
through
and 35-11-1414
35-11-1428
product storage
um
Supp.1990).
buyers
property
is,
bought
The
the
“as
1 Unfortunately,
acceptance
is.”
where
appeal
are
in this
now faced
with
legend
advantages
of an
of
invalid
society’s imposition
expensive
of an
cost
arrangement for an install-
the escrow deed
upon the
and are asked who is
landowner
(probably
ment
of sale
to avoid
contract
I
pay
buyers?
to
seller or the
—the
default),
upon
par-
classical foreclosure
the
really
part
like to
that some
believe
occurring
ties were faced with events
since
placed upon
responsibility should be
whoev-
severely impacted
sale which
have
parties
er advised these
to use
install-
property’s
underground
value—abandoned
a
technique
ment sale
instead of
note and
storage tanks.2
petroleum product
mortgage,
parties
are not
but those
buyers
promptly
properly
paid
seller, buyers
have a
here before us. We
eight
on the installment contract for about
imposed
by
government.
and an
cost
years
until
the fire marshall of
notice
This
assesses
majority now
regulations
changes
current
re-
law
incomplete
the seller
record
within
petroleum
garding
abandoned
accurately
does
advise when the
not
product storage
tanks. State
federal
filling
usage
discontinued or
station
laws were
and state and federal
enacted
necessarily
property
at that
who owned
empowered.
agencies
administrative
were
time.
filling
Hundreds of thousands of old
sta-
9, 1981,
underground petroleum
prior May
1. That
to
the un-
tion site abandoned
had been
product
heavy
derground storage tanks
de-
storage tanks became a
surfaced,
problem
only
prior
commissioned
a
Contract for
which not
but ex-
* * *
person,
Plaintiffs or
plosively
See the most re-
Deed
not
mushroomed.
filling
Meaning
a
station.
v. Free
1.
estate trade terms
character
known closed
in real
Wolford
man,
(1948);
agreement
ization
property
warranty
identified
N.W.2d 98
Mon
150 Neb.
improvements were
York,
sold without
tague
Savings City New
Bank
quality except
fitness or
as done
(1943).
Misc.
See also
43 N.Y.S.2d
normally
provided
here and
warrant
title.
an “as is” clause in the
an affirmative use of
only
warranty provided
here
sell
actual
Code, W.S. 34.1-2-
Uniform Commercial
er in
was for title which was
sales documents
316(c)(i).
by mandatory
objec
examination and
covered
a
“Buyer
process.
shall ad
abstract review
Knowledgeable attorneys experienced in real
any
title
vise
defects in
within [two
Seller of
experienced realtors
estate and a
should
*
few
provision
weeks]*
mortgage
preferable
know that
deed and
placed
responsibility upon
main
total
device,
security
exception
land sale
improvements,
property and
tenance of the real
remodeling
circumstances,
.
very
but almost
some
limited
reconstruction,
long
exception
as an
if the
never
against
to include all taxes levied and assessed
Whitman, The Install-
term. See Nelson and
year
real
after
sale. The
Viewpoint,
ment Land Contract—A National
term “as
is sold without
is” means
warranty
identity
defines
1977 B.Y.U.L.Rev. 541
and "where is”
possible problems.
was a
holder
Defendant,
rights
property,
in use with
not the
and have not been
purchase payment.
security
of a
device for
time.
since that
problem fitting in
Additionally, I have a
I
in disinclination to continue
dissent
the abandoned tank removal issue with the
ownership derived from the anti-
fiction of
injunction requested
complaint
and the
a note and
quated differentiation between
declaratory judgment grant-
tank removal
install-
mortgage security interest and the
disposition.
ed in
I do not know where the
contract as another real estate
ment sale
litiga-
gowill
from here since the
purchase price security device.
I would
request
injunc-
fiction,
tion started with a
for an
just
artificiality
abandon
upon non-pay-
tion to forestall foreclosure
dia-
long
no matter how
matured
payments. Perhaps by
ment of installment
logue.3
tanks,
has removed the
now someone
frequently misunderstood
Except for the
leakage
previously
has
occurred and a dol-
upon payment
foreclosure
de-
criteria for
not,
If
lar amount can be determined.
fault,
and out-
only remanents
archaic
happen
lack assurance what will
next or
concepts of law survive to distin-
dated
if the state
for tank re-
even
contribution
subject
guish
ownership
of land held
(Cum.
pursuant
moval
to W.S. 35-11-1424
*5
mortgage
byor
escrow deed and
note and
1990)
possibility.
certainly
is
Supp.
installment contract. Olds v. Little Horse
possibility
that the tanks have leaked and
Co.,
Wyo.
burden OF UNEM- DIVISION that the intent INSURANCE, Appellant evidence PLOYMENT responsibili- Guertzgens would shoulder all (Respondent), with the ties connected v. I identify an possession. cannot assumed Shirley SECREST, Appellee I. is, provision, is” but find where “as (Petitioner). assign re- agreement term does another No. 90-295. tanks in a removing sponsibility delegations manner consistent Supreme Wyoming. Court of offered McKone. As we provisions writing estab- as a whole when consider the consist- lishing parties, intent of the. significant. provisions is
ency of all these Corp., 771
True Oil Co. Sinclair Oil (Wyo.1989). much with are not concerned here so are with of risk loss as we
allocation party of which
determination compliance laws. responsibility to the Guertz-
assigns this agrees to it states that
gens where *6 the property and take
purchase easements, TO reservations
SUBJECT Zoning restrictions of record and to laws, added). (emphasis possession subject took
laws, by doing so the obli- assumed compliance them.1
gation of provi-
reading is consistent with the other agreement. Logically, possession subject to Guertzgens’ existing was en-
laws Consequent- any since enacted.
tered and McKone, Guertzgens, and not
ly, the compliance financial burden of
bear the affecting laws trial the decision of the reverse
court. regulations warranty by the time the any laws and seller cable There is no evidence signed. appli- compliance with was in ment that the