                  IN THE SUPREME COURT, STATE OF WYOMING

                                             2014 WY 4

                                                            OCTOBER TERM, A.D. 2013

                                                                   January 14, 2014

CURTIS F. SYMONS,

Appellant
(Plaintiff/Counter-Defendant),

v.
                                                     S-13-0082
WAYNE R. HEATON and TIMOTHY S.
TARVER, Co-Administrators of the Estate
of Gary L. Plachek,

Appellees
(Defendants/Counter-Plaintiffs).

                     Appeal from the District Court of Sheridan County
                          The Honorable Robert E. Skar, Judge

Representing Appellant:
      H. W. Rasmussen, Sheridan, WY.

Representing Appellees:
      Timothy S. Tarver, Sheridan, WY.

Before KITE, C.J., and HILL, VOIGT*, BURKE, and DAVIS, JJ.
*Justice Voigt retired effective January 3, 2014.




NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.

[¶1] After Gary Plachek died intestate, leaving an estate worth approximately
$300,000.00, his friend and caretaker Appellant Curtis Symons (Symons) filed a claim
against the estate in the amount of $259,200.00. Symons sought compensation for the
care and services that he provided to Plachek during the last nine years of Plachek’s life.
After the co-administrators denied Symons’ claim, Symons brought an action against
them. The district court disposed of the action upon a motion for summary judgment by
the estate, and this appeal followed.

                                         ISSUES

[¶2]   Symons states his issues as follows:

             The trial court erred in granting summary judgment on
             Symons’ claim based on an implied-in-fact contract.

             The trial court erred in granting summary judgment on
             Symons’ implied-in-law contract claims.

                                         FACTS

[¶3] Gary Plachek and Curtis Symons met in 1964 in 7th grade and remained close
friends throughout their lives until Plachek’s death in 2010. The two friends were so
close that in 2001, Plachek’s mother expressed concern to Symons regarding her son’s
excessive drinking and asked Symons to take care of her son after she was gone. Symons
was a recovered alcoholic while, by all accounts, Plachek was an alcoholic with no desire
to stop drinking.

[¶4] In mid-2001 Symons moved into Plachek’s home at Plachek’s request and lived
with Plachek until his death in 2010. Symons did not pay rent but continued working at
his job while also caring for Plachek by driving him places, running his errands, taking
care of his dog, maintaining the household, and doing other tasks as needed. Plachek did
not work and drank and slept much of the time.

[¶5] After Plachek’s death in 2010 Symons filed a creditor’s claim against Plachek’s
estate in the amount of $259,200.00 seeking compensation for the care and services he
provided to Plachek. The co-administrators of the estate, Wayne R. Heaton and Timothy
S. Tarver, denied the claim on August 9, 2010. On August 20, 2010 Symons brought an
action against the co-administrators, asserting claims for implied-in-fact contract and
contract implied-in-law (promissory estoppel and unjust enrichment). The estate moved
for summary judgment on all claims and the district court granted the motion.



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[¶6]   This appeal followed.

                               STANDARD OF REVIEW

[¶7] Regarding our standard of review on summary judgment, we stated in
Throckmartin v. Century 21 Top Realty, 2010 WY 23, ¶ 12, 226 P.3d 793, 798 (Wyo.
2010),

                     We evaluate the propriety of a summary judgment by
             employing the same standards and using the same materials
             as the district court. Cook v. Shoshone First Bank, 2006 WY
             13, ¶ 11, 126 P.3d 886, 889 (Wyo. 2006). Thus, our review is
             plenary. Birt v. Wells Fargo Home Mortg., Inc., 2003 WY
             102, ¶ 7, 75 P.3d 640, 647 (Wyo. 2003).
                   Wyo. R. Civ. P. 56 governs summary judgments. A
                   summary judgment is appropriate when there are no
                   genuine issues of material fact and the moving party is
                   entitled to judgment as a matter of law. W.R.C.P. 56(c).
                   When reviewing a summary judgment, we consider the
                   record in the perspective most favorable to the party
                   opposing the motion and give that party the benefit of all
                   favorable inferences which may be fairly drawn from the
                   record. We review questions of law de novo without
                   giving any deference to the district court’s
                   determinations.
             Cathcart v. State Farm Mut. Auto. Ins. Co., 2005 WY 154,
             ¶ 11, 123 P.3d 579, 586 (Wyo. 2005), quoting Baker v. Ayres
             and Baker Pole and Post, Inc., 2005 WY 97, ¶ 14, 117 P.3d
             1234, 1239 (Wyo. 2005).
                     “A genuine issue of material fact exists when a
             disputed fact, if it were proven, would establish or refute an
             essential element of a cause of action or a defense that the
             parties have asserted.” Christensen v. Carbon County, 2004
             WY 135, ¶ 8, 100 P.3d 411, 413 (Wyo. 2004) (quoting Metz
             Beverage Co. v. Wyoming Beverages, Inc., 2002 WY 21, ¶ 9,
             39 P.3d 1051, 1055 (Wyo.2002)). The party requesting a
             summary judgment bears the initial burden of establishing a
             prima facie case for summary judgment. If he carries his
             burden, “the party who is opposing the motion for summary
             judgment must present specific facts to demonstrate that a
             genuine issue of material fact exists.” Id. We have explained
             the duties of the party opposing a motion for summary
             judgment as follows:


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                   “After a movant has adequately supported the motion for
                   summary judgment, the opposing party must come
                   forward with competent evidence admissible at trial
                   showing there are genuine issues of material fact. The
                   opposing party must affirmatively set forth material,
                   specific facts in opposition to a motion for summary
                   judgment, and cannot rely only upon allegations and
                   pleadings …, and conclusory statements or mere
                   opinions are insufficient to satisfy the opposing party’s
                   burden.”
                   The evidence opposing a prima facie case on a motion
             for summary judgment “must be competent and admissible,
             lest the rule permitting summary judgments be entirely
             eviscerated by plaintiffs proceeding to trial on the basis of
             mere conjecture or wishful speculation.”           Speculation,
             conjecture, the suggestion of a possibility, guesses, or even
             probability, are insufficient to establish an issue of material
             fact. Cook, ¶ 12, 126 P.3d at 890, quoting Jones v. Schabron,
             2005 WY 65, 113 P.3d 34, 37, ¶¶ 9-11 (Wyo. 2005).

                                     DISCUSSION

[¶8] Symons argues on appeal that although no express contract existed between him
and Plachek, and although no testamentary documents were ever executed by Plachek,
there was a bargained for exchange such that an implied-in-fact or an implied-at-law
contract existed.

[¶9] Taking each prospect – implied-in-fact contract or implied-at-law contract –
separately, we begin with the question of whether an implied-in-fact contract existed. In
Wyoming negotiating parties may reach an “implied-in-fact” contract. Birt v. Wells
Fargo Home Mortg., Inc., 2003 WY 102, ¶ 15, 75 P.3d 640, 649 (Wyo. 2003). For an
implied-in-fact contract to have been created by the parties’ conduct, “‘‘the conduct from
which that inference is drawn must be sufficient to support the conclusion that the parties
expressed a mutual manifestation of an intent to enter into an agreement.’’” Birt, ¶ 15,
75 P.3d at 649 (quoting Shaw v. Smith, 964 P.2d 428, 435-36 (Wyo. 1998) (quoting
Lavoie v. Safecare Health Serv., 840 P.2d 239, 248 (Wyo. 1992)). We further discussed
in Birt the process that this Court employs to determine whether an implied-in-fact
contract was formed:

                     [W]e look not to the subjective intent of the parties,
             but to “‘the outward manifestations of a party’s assent
             sufficient to create reasonable reliance by the other party.’”
             Givens v. Fowler, 984 P.2d 1092, 1095 (Wyo. 1999) (quoting


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              McDonald v. Mobil Coal Producing, Inc., 820 P.2d 986, 990
              (Wyo. 1991)). The question is “whether a reasonable man in
              the position of the offeree would have believed that the other
              party intended to make an offer.” Boone [v. Frontier Ref.,
              987 P.2d 681 at 687 (Wyo. 1999)]. In 1991, we adopted
              Restatement (Second) of Contracts § 19 (1979) for guidance
              in determining whether an implied-in-fact contract exists:
                   “(1) The manifestation of assent may be made wholly or
                   partly by written or spoken words or by other acts or by
                   failure to act.
                   (2) The conduct of a party is not effective as a
                   manifestation of his assent unless he intends to engage
                   in the conduct and knows or has reason to know that the
                   other party may infer from his conduct that he assents.
                   (3) The conduct of a party may manifest assent even
                   though he does not in fact assent. In such cases a
                   resulting contract may be voidable because of fraud,
                   duress, mistake, or other invalidating cause.”
              McDonald, 820 P.2d at 990. In essence, an implied-in-fact
              contract may arise where “parties act in a manner conveying
              mutual agreement and an intent to promise . . . .” Worley v.
              Wyoming Bottling Co., Inc., 1 P.3d 615, 620 (Wyo. 2000).
              Interpretation of an unambiguous implied-in-fact contract is a
              question of law. Garcia v. UniWyo Federal Credit Union,
              920 P.2d 642, 645 (Wyo. 1996).

Birt, ¶ 16, 75 P.3d at 649.

[¶10] In support of his claim that an implied-in-fact contract existed in this case, Symons
relies on statements made by Plachek, and between Plachek and other friends, that he
wanted his estate to go to Symons. In his deposition Symons testified that in 2003
Plachek had a falling out with his step-daughter Angie Dinkle, whereupon Plachek
informed Symons that he intended to leave his estate to Symons and not Dinkle.
Furthermore, Symons claims the depositions of LuAnn and Wayne Kurpjuweit
demonstrate the existence of the bargained for exchange needed to prove an implied-in-
fact contract. Both Kurpjuweits testified during their depositions that Plachek promised
Symons “everything,” and that Plachek said if Symons stopped drinking and took care of
Plachek, “[the house] would be his.” Also in support of his claim that an implied-in-fact
contract existed, Symons points to a power of attorney completed by Plachek in 2003.
The document was notarized at the county clerk’s office, where Plachek crossed out the
language “ … and shall automatically be revoked upon my death.” Symons testified that
Plachek also told Symons the document would serve as his will. Finally, Symons argues
that he relied to his detriment on Plachek’s promise to leave his property to him.


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[¶11] Contrary to Symons’ assertions we find nothing in the statements made by
Symons, or the Kurpjuweits, that indicate a bargained for exchange between Plachek and
Symons. Nor does the power of attorney carry any weight. It makes no mention of
property distribution, not to mention its limited power merely giving Symons authority to
deal with Plachek’s affairs while he made a trip to Montana. Most importantly, in his
own deposition Symons states there was “never an agreement about anything.” In full
context, this portion of the deposition reads as follows:

             Q: So [Plachek] pretty much took care of himself early on?
             A: Yeah.
             Q: And there was no agreement with him at that time as to –
             A: There was –
             Q: -- payments, nothing; you were just –
             A: There was never any agreement about anything.

In fact, as the deposition continued, Symons made similar statements again and again.

             Q: [D]id you stay there longer because he promised you
             things; that he promised you these things?
             A: No. No. I don’t know what you’re trying to get at there,
             but no.
             Q: So that didn’t have any effect on you?
             A: No.
             Q: You wanted to be there with him?
             A: Yeah.

Symons’ deposition makes it apparent to this Court that the summary judgment in favor
of the estate’s administrators was appropriate on this issue. There are no genuine issues
of material fact from which a fact-finder could conclude that an implied-in-fact contract
arose.

[¶12] Having found no implied-in-fact contract existed, we turn to the question of
whether an implied-in-law contract occurred.            An implied-in-fact contract is
distinguishable from a contract “implied in law.” The former may be found to exist as a
matter of fact and is dependent upon the parties’ intent, while the latter is imposed as a
matter of law, as an equitable remedy. Birt, ¶ 15, 75 P.3d at 649 (citing Amoco Prod. Co.
v. EM Nominee Pshp. Co., 2 P.3d 534, 541 (Wyo. 2000)); Clark v. Gale, 966 P.2d 431,
438 (Wyo. 1998). Through the doctrines of promissory estoppel and unjust enrichment
Symons argues that an implied-in-law contract must have existed here. We disagree.

[¶13] The elements of promissory estoppel are as follows:



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             (1) the existence of a clear and definite promise which the
             promisor should reasonably expect to induce action by the
             promisee; (2) proof that the promisee acted to its detriment in
             reasonable reliance on the promise; and (3) a finding that
             injustice can be avoided only if the court enforces the
             promise.

Redland v. Redland, 2012 WY 148, ¶ 91, 288 P.3d 1173, 1194 (Wyo. 2012) (quoting
Parkhurst v. Boykin, 2004 WY 90, ¶ 21, 94 P.3d 450, 460 (Wyo. 2004)).

[¶14] Symons comes up short on the first requirement – the existence of a clear and
definite promise. The power of attorney provides no such proof and Symons’ own
deposition testimony positively refutes any “clear and definite promise.” In fact, the
record raises no genuine issue of material fact with regard to any of the elements of
promissory estoppel. There was no “clear and definite promise” from Plachek to
Symons. There is no proof that Symons acted to his detriment. Finally, it is impossible
to conclude that any injustice was done to Symons, again looking to Symons’ own
testimony stating that he voluntarily lived with Plachek and would have stayed with him
and cared for his friend even if it took his last penny.

[¶15] Turning briefly to Symons’ unjust enrichment claims, we have defined unjust
enrichment and its required elements as follows:

                    Unjust enrichment is the unjust retention of a benefit to
             the loss of another. It exists as a basis for recovery for goods
             or services rendered under circumstances where it would be
             inequitable if no compensation was paid in return. In
             Wyoming, the elements of unjust enrichment are: 1) valuable
             services were rendered; 2) to the party to be charged; 3)
             which services were accepted, used and enjoyed by the
             charged party; and 4) under circumstances that reasonably
             notified the party being charged that the other party would
             expect payment for the services. Horn v. Wooster, 2007 WY
             120, ¶ 24, 165 P.3d 69, 76 (Wyo. 2007); Jacoby v. Jacoby,
             2004 WY 140, ¶ 10, 100 P.3d 852, 855 (Wyo. 2004).

Redland, ¶ 137, 288 P.3d at 1203.

[¶16] Unjust enrichment is an equitable remedy. Schlinger v. McGhee, 2012 WY 7A,
¶ 25, 268 P.3d 264, 272 (Wyo. 2012); Jacoby v. Jacoby, 2004 WY 140, ¶ 13, 100 P.3d
852, 856 (Wyo. 2004). We have stated unequivocally before that element four is the
heart of an unjust enrichment claim.



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              The receipt of a benefit must be unjust as to the party to be
              charged. Unjust enrichment is an equitable remedy that is
              appropriate only when the party to be charged has received a
              benefit that in good conscience the party ought not retain
              without compensation to the party providing the benefit.
              “The words ‘unjust enrichment’ concisely state the necessary
              elements of an equitable action to recover money, property,
              etc., which ‘good conscience’ demands should be set over to
              the appellee by appellants pursuant to an implied contract
              between them.” Landeis v. Nelson, 808 P.2d 216, 218 (Wyo.
              1991). As stated at 66 Am. Jur. 2d Restitution and Implied
              Contracts § 8 (2001):
                     “The phrase ‘unjust enrichment’ is used in law to
                     characterize the result or effect of a failure to make
                     restitution of, or for, property or benefits received
                     under such circumstances as to give rise to a legal or
                     equitable obligation to account therefor. It is a general
                     principle, underlying various legal doctrines and
                     remedies, that one person should not be permitted
                     unjustly to enrich himself at the expense of another,
                     but should be required to make restitution of or for
                     property or benefits received, retained, or appropriated,
                     where it is just and equitable that such restitution be
                     made, and where such action involves no violation or
                     frustration of law or opposition to public policy, either
                     directly or indirectly.”

Redland, ¶ 146, 288 P.3d at 1205-1206. Here, one friend took care of another for years.
Symons never expected payment and testified to that during his deposition. Symons took
care of Plachek because he was his friend. He stated that he moved in because “he
wanted to,” because he “wanted to be there for [Plachek],” and because of “a
commitment I made to [Plachek’s mother] and [Plachek] both.”

                                     CONCLUSION

[¶17] We affirm the district court’s order finding no question of material fact existed and
that Symons failed as a matter of law on his claims for implied-in-fact contract,
promissory estoppel and unjust enrichment.




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