University of Vermont AAHS

Hoblyn v. Johnson

Wyoming Supreme Court
55 P.3d 1219
October 9, 2002

Summary of Opinion

This is a lawsuit by the parents of a child over the removal of the child's horse from the parents' property at a time when the child was living with her grandparents.  The trial court granted summary judgment in favor of the grandparents, the brand inspector and a deputy sheriff in the claim for wrongful taking of the horse.  In this opinion, the Wyoming Supreme Court said that because the horse belonged to the 16-year-old daughter (a gift from a grandparent) she was entitled to obtain possession of it in the manner she did.

Text of Opinion

The teenage daughter of Appellants Gary and Michelle Hoblyn (the parents) accused her father of abuse. While the charges were being investigated, the parents took the daughter to stay temporarily with her grandparents in Nebraska but would not permit her to take her horse. The daughter undertook efforts, with the assistance of a state brand inspector, to obtain possession of her horse. Though the father was later found not guilty of abuse, the daughter did not return home. The parents sued the grandparents, the neighbors, the brand inspector, the Laramie County sheriff's department, and others for various conspiracy and individual claims including tortious interference with the parent-child relationship, deprivation of constitutional rights under color of state law, intentional infliction of emotional distress, larceny, trespass, harassment, and defamation. The district court dismissed the tortuous interference claim against the grandparents for lack of jurisdiction, and it dismissed the remainder of the claims by summary judgment. We affirm.


We rephrase the issues as follows:

I. Under the facts of this case, should Wyoming adopt the cause of action for intentional interference with the parental relationship?

II. Did the district court err in granting the grandparents' motion to dismiss the parents' claim of intentional interference with the parental relationship for lack of in personam jurisdiction?

III. Did the state brand inspector, assisted by deputies of the Laramie County sheriff's department, violate the parents' Fourth Amendment rights by entering their property without a warrant to inspect and transfer the daughter's horse to a new owner?

IV. Must a person seek psychological care or submit expert testimony to prove severe emotional distress?

V. May a tort action be premised on statutory criminal larceny?

VI. In Wyoming, is a civil action for harassment provided by statute?

VII. How is the jurisdictional amount in controversy to be determined?

VIII. Was the neighbor's comment, reported by the newspaper, that the parents were "not nice people" sufficient by itself to establish a prima facie case of defamation?


Pursuant to our standard of review for summary judgments, we consider the facts from the vantage point most favorable to the parents, as the party opposing the motions, awarding them all the favorable inferences which may be drawn from those facts. S & G Investors, LLC v. Blackley, 994 P.2d 941, 943 (Wyo.2000).

In October 1998, the sixteen-year-old daughter accused her father of physical abuse. The Department of Family Services (DFS) suggested a "cooling off" period, and the parents took the daughter from Cheyenne to North Platte, Nebraska, to stay approximately one month with her paternal grandmother, Margurette Johnson, and step-grandfather, Chuck Johnson (the grandparents). The grandmother asked the parents to allow the daughter to have her horse while she stayed in Nebraska. They refused though the daughter was the horse's legal owner. The daughter contacted Matthew Davis, her neighbor from Cheyenne, for advice. Mr. Davis spoke with Greg Bybee, a state brand inspector, who apparently later contacted the daughter. On November 13, 1998, the grandparents drove the daughter to a truck stop near Burns, Wyoming, so she could meet with the brand inspector. Although the grandparents and Mr. Davis and his wife (the neighbors) were present at the truck stop, the daughter met with the brand inspector alone at a separate table. During the meeting, the daughter signed papers transferring ownership of her horse to Ken Peterson.

At seven o'clock the next morning, the brand inspector and Deputies Fanning and Crumpton from the Laramie County sheriff's department went to the parents' Cheyenne home. The brand inspector had requested assistance from the sheriff's department, and the deputies were sent in response. Mr. Peterson also went to the parents' home with a pickup truck and a horse trailer. While everyone else waited on the county road off the property, Deputy Fanning knocked on the front door of the residence. No one answered, and Deputy Fanning joined the others on the county road to wait and see if anyone would appear. After approximately twenty to thirty minutes, the brand inspector entered the property from behind the residence and went to a fenced area with some outbuildings. He opened a wire gate, entered an enclosure, and identified a horse he found there as being the same horse the daughter had transferred to Mr. Peterson the night before. The brand inspector led the horse off the property and loaded it into the horse trailer, and Mr. Peterson drove away. Later that day, the brand inspector met Mr. Peterson at a welding shop and completed the paperwork transferring ownership of the horse back to the daughter. The neighbors then took the horse to the daughter in Nebraska.

The father was criminally charged for allegedly hitting the daughter and found not guilty after a March 1999 jury trial. The neighbors kept in contact with the daughter and grandparents through personal visits, letters, and telephone calls. The grandparents brought the daughter to Cheyenne on several occasions to visit the neighbors and did not advise the parents. The daughter bought a truck from the neighbors, and the grandparents helped her purchase a horse trailer.

The grandparents started temporary guardianship proceedings in Nebraska as required by the school district where the daughter was enrolled. The parents reportedly did not show up at the hearing, and the matter was not pursued further.

At the time of the father's trial, the mother gave the daughter a necklace as a birthday gift which the daughter returned to her after the trial. A short time later, the grandmother and the daughter obtained protective orders from the District Court of Lincoln County, Nebraska to preclude all contact by the parents. Instead of returning home, the daughter remained with her grandparents, completed high school, and obtained a job as a horse trainer.

From the record, it appears the parents never reported the daughter's horse was stolen nor made any larceny or trespass complaints. Further, they filed no legal action in either Nebraska or Wyoming to regain custody of their daughter from the grandparents, nor did they appear in the Nebraska district court to contest the protective orders.

In January 2000, the parents filed a civil complaint, subsequently amended, alleging various causes of action against the grandparents, the neighbors, Deputy Crumpton, the brand inspector, Ken Peterson, and the Laramie County sheriff's department. The combined damages were alleged to be "in excess of $500,000.00 plus punitive damages in an amount sufficient to deter the defendants and others." The parents appeal the district court's order by which all the causes of action were dismissed.


The standard of review applied by this Court in reviewing the granting of summary judgment is well-settled. "When a motion for summary judgment is before the supreme court, we have exactly the same duty as the district judge; and, if there is a complete record before us, we have exactly the same material as did he. We must follow the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of a court's dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record. We separate the formal and pretended from the genuine and substantial so only the latter may be considered in eliminating the burden of a formal trial if only questions of law are left to decide; there must be no issue of material fact to decide. A material fact, expressed in various ways, is one having legal significance which would in a given case control the legal relations of the parties; one upon which the outcome of the litigation depends in whole or in part; one on which the controversy may be determined; one which will affect the result or outcome of the case depending upon its resolution; or one which constitutes a part of the plaintiff's cause of action or the defendant's defense. Summary judgment affords an opportunity for prompt disposition of a lawsuit in its early stages, permitting an end to unfounded claims and avoiding the expense of a full-fledged trial to both litigants and the state's judicial machinery." Reno Livestock Corp. v. Sun Oil Co. (Delaware), 638 P.2d 147, 150-51 (Wyo.1981) [ (citations omitted) ]. McLean v. Hyland Enterprises, Inc., 2001 WY 111, 14, 34 P.3d 1262, 14 (Wyo.2001). If we can uphold summary judgment on the record presented under any proper legal theory, we will. Hulse v. First Interstate Bank of Commerce-Gillette, 994 P.2d 957, 959 (Wyo.2000).


A. Intentional Interference with the Parental Rights [discussion omitted.]

B. Claims Related to Ownership and Possession of the Horse

The parents claim the grandparents, Mr. Peterson, Deputy Crumpton, and the brand inspector, under color of state law, unlawfully acted individually and in conspiracy with each other by express and implied agreement with regard to the daughter's horse to deprive the parents of their constitutional rights provided by the Fourth, Fifth, and Fourteenth Amendments to the United States Constitution. The district court granted summary judgment to all defendants holding the horse was subject to the brand inspector's jurisdiction, the brand inspection statutes diminish the expectation of privacy, and therefore there was no Fourth Amendment claim.

The parents also alleged the same defendants conspired to commit larceny by taking or leading away property--the horse--in their lawful possession. The district court dismissed this count with prejudice because the daughter owned the horse and was denied possession; therefore, no claim of larceny could be maintained for the taking of the horse from the parents' property. The district court further found larceny does not exist in civil law and conversion was the appropriate civil remedy, which was not pleaded.

In a further related allegation, the parents accused the same defendants of conspiring to enter their real property without consent and against their will and, in the course of the trespass, causing damages. The district court found a question of material fact existed as to whether a trespass occurred. However, it dismissed the cause of action with prejudice because, even if the issue was resolved in favor of the parents, the damages evidence did not meet the court's minimum jurisdictional limits.

Pursuant to a different legal analysis, we reach the same resolution as the district court on these causes of action.

The dispute over the daughter's horse is at the heart of these actions. The parents concede the horse was legally the daughter's and titled in her name. However, they also contend, as parental custodians of the animal, they could refuse to permit the daughter to take the animal to Nebraska where they had voluntarily placed her. We believe their contention is unfounded.

"As a general rule any property acquired by the child in any way except by its own labor or services belongs to the child, and not to the parent." [46 C.C. 1314].... It furthermore goes without saying that a parent cannot deprive a child of its property except pursuant to law (31 C.J. 1011), and the fact that in this instance the father had the property in question assessed as his property could not affect the title of the children. In Banks v. Conant, 96 Mass. 497, 14 Allen (Mass.) 497, it was said: "In consideration of the duty which the law imposes on a father to furnish adequate support to his child during infancy, the services of the child during that period are due to the father, and, if they are rendered to a third person, the right of the father to recover the value thereof is clear and indisputable. But this is the extent of the father's right. He has no title to the property of the child, nor is the capacity or right of the latter to take property or receive money by grant, gift or otherwise, except as a compensation for services, in any degree qualified or limited during minority. Whatever therefore an infant acquires which does not come to him as a compensation for services rendered, belongs absolutely to him, and his father cannot interpose any claim to it, either as against the child, or as against third persons who claim title or possession from or under the infant." Kreigh v. Cogswell, 45 Wyo. 531, 21 P.2d 831, 833 (1933). Though issued almost seventy years ago, this opinion still provides an accurate statement of the law. See also 1 Donald T. Kramer, Legal Rights of Children 8.01-8.03 (2d ed.1994); Fare v. Scott K., 24 Cal.3d 395, 155 Cal.Rptr. 671, 595 P.2d 105, 110-11 (Cal.1979); 67A C.J.S. Parent and Child 113 (1978).

Despite the general rule, parents do retain property rights in certain items they provide their children for the purpose of support, maintenance, or education such as clothing and books. 1 Kramer, Legal Rights of Children, supra at 8.12; 67A C.J.S. Parent and Child, supra at 119. It is uncontroverted the daughter's paternal grandfather gave the horse to her as a gift, the horse was titled in her name, and it was not necessary for her support or maintenance. As a matter of law, the horse belonged to the daughter, and the parents had no implied authority over it simply because of their proprietary interest in the premises on which it was located.

The parents do not dispute the daughter wanted her horse returned to her personal possession and had not appointed them to act as agents for her in any capacity. The parents' agency on behalf of the daughter cannot be inferred from the mere existence of the family relationship. Rather, the daughter must duly authorize the parents to act as her agent. 67A C.J.S. Parent and Child, supra at 119; Angus v. London, 92 Cal.App.2d 282, 206 P.2d 869, 870 (Cal.Dist.Ct.App.1949). In effect, an involuntary bailment was created when the parents took the daughter to live elsewhere and kept her horse.

A constructive or involuntary bailment arises where the person having possession of a chattel holds it under such circumstances that the law imposes on him the obligation of delivering it to another, where a person has lawfully acquired possession of personal property of another otherwise than by a mutual contract of bailment, or where a person has lawfully acquired the possession of personal property of another and holds it under circumstances whereby he should, on principles of justice, keep it safely and restore it or deliver it to the owner.

8 C.J.S. Bailments 15 at 237 (1988).

Such a bailment was at issue in Moore v. Moore, 835 P.2d 1148 (Wyo.1992), a divorce case in which the wife left her horses on the ranch awarded to the husband because she had no place to keep them. See also Horn v. State, 556 P.2d 925 (Wyo.1976). The Moore facts are different from those in this case to the extent the husband had no say regarding the animals remaining on his property. In the instant case, the horse was on the property to begin with, the parents took the owner elsewhere to live, and they did not permit the horse to go with her. These distinctions do not change the involuntary character of the bailment, and, as we noted in Moore, the involuntary bailee has an absolute duty to return the property. Moore, 835 P.2d at 1153.

"Where the person in possession has committed no independent act of conversion, a rightful possession in him continues as such until it is transformed into a wrongful detention by a demand for the property and a refusal to deliver it." [65 C.J. 43-45.]

.... And it is generally held that ordinarily a demand should be made by a bailor upon the bailee for the return of his goods before an action for conversion against the bailee will lie.

Vissenberg v. Bresnahen, 65 Wyo. 367, 202 P.2d 663, 669-70 (1949).

Viewing the facts in the light most favorable to the parents, we will assume they did nothing inconsistent with their daughter's ownership interests in the horse until they refused her request to return it. The Restatement (Second) of Torts provides:

(1) Except as otherwise agreed, a conditional vendor or lessor of a thing who is entitled to immediate possession thereof, or a successor to his legal interest in the thing, is privileged, at a reasonable time and in a reasonable manner, to enter land in the possession of the vendee or lessee, for the purpose of taking possession of the thing and removing it from the land.


(3) The privileges stated in Subsection[ ](1) ... are also available to


(c) a bailor of a thing who by reason of the termination of the bailment is entitled to the immediate possession of the thing.

1 Restatement (Second) of Torts 183 at 332 (1965). As noted in the comments, absent an express agreement, the law infers consent of the bailee to entry by the bailor who is entitled to possession of the thing by reason of the termination of the bailment. Id., 183 at 333. The Restatement (Second) of Torts likewise extends a privilege to the bailor to retrieve the property:

(1) One is privileged to enter land in the possession of another, at a reasonable time and in a reasonable manner, for the purpose of removing a chattel to the immediate possession of which the actor is entitled, and which has come upon the land otherwise than with the actor's consent or by his tortious conduct or contributory negligence.

1 Restatement (Second) of Torts, supra, 198 at 361. Comment a of this subsection explains that application of 198 is limited to those situations where the actor, as against all persons, is entitled to immediate possession of the chattel both at the time when the chattel is placed on the land and when the actor seeks to enter and reclaim it. See Salisbury Livestock Company v. Colorado Central Credit Union, 793 P.2d 470 (Wyo.1990); see also Sammons v. American Automobile Association, 912 P.2d 1103 (Wyo.1996). It follows that, once the parents refused the daughter's request for the return of her horse, she was privileged to enter their real property at a reasonable time and in a reasonable manner to take the horse. No reason exists why she could not accomplish the same through an agent.

The daughter also had the right to transfer her bailed property, and the parents' arguments to the contrary are unfounded.

It must not be overlooked that minors have ... the capacity to take, but their capacity to give is limited. They have capacity to contract, at least when of sufficient age to understand what they are doing; but, in general, they have the right to repudiate their contracts. Thus they may contract ... but the contract is, ordinarily, voidable at their election.

Novosel v. Sun Life Assur. Co. of Canada, 49 Wyo. 422, 55 P.2d 302, 305- 06 (1936); see also Jankovsky v. Halladay Motors, 482 P.2d 129 (Wyo.1971). The parents place significant emphasis on the appearance of the sale as a sham. Even if we assume this is true, it has absolutely no bearing on the resolution of this appeal. The daughter had the ability to sell her horse, and, with the brand inspector's assistance, she completed the paperwork to accomplish the transfer of the title.

With regard to the claims against the brand inspector, his actions were consistent with his statutory authority. Pursuant to Wyo. Stat. Ann. 11-20-203 (LEXIS 1999) (amended 2001), Wyo. Stat. Ann. 11-20-205(a) (LexisNexis 2001), Wyo. Stat. Ann. 11-20- 214(a) (LexisNexis 2001), and 1 Restatement (Second) of Torts, supra, 211 at 398, the brand inspector had authority to enter the parents' land to retrieve the daughter's horse for transfer to Mr. Peterson. His actions constituted neither trespass nor larceny.

The claims against Officer Crumpton are also specious in light of the uncontested facts because he never entered the parents' property. Though Officer Fanning did enter the property, he did so in a reasonable way in order to notify the parents that the brand inspector was there to secure the horse. Pursuant to Wyo. Stat. Ann. 11-18-112 and 18-3-606 (LexisNexis 2001) and 1 Restatement (Second) of Torts, supra at 211, these actions were reasonable; legally authorized; and, again, constituted neither trespass nor larceny.

The parents also allege the grandparents, the neighbors, and Mr. Peterson were part of a conspiracy to trespass and commit larceny. These causes of action fail for the same reasons the underlying claims against the brand inspector and Officer Crumpton failed. It is ironic, albeit immaterial, that the parents' actions appear to better fit the statutory )

larceny by bailee definition than the actions of any of the parties they have accused.

C. Intentional Infliction of Emotional Distress/Proof of Severity [discussion omitted.]

D. Civil Harassment Cause of Action Based on Criminal Stalking Statute [discussion omitted.]

E. Defamation [discussion omitted.]


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