Background
Amy Cross and her company Cross Ranch Land, LLC owned several parcels near those of neighbor Lisa Albright in Fremont County, Wyoming. The parties’ properties lay in a “scattered ownership pattern” that generated multiple disputes — over joint ownership of some parcels, access to ditches and headgates serving irrigation needs, and access to certain of Cross’s properties across Albright’s land. Unable to resolve the conflicts informally, Cross filed two complaints and two petitions before the Board of Control.
While litigation was pending, the parties participated in mediation and the session appeared to end in success. Both sides signed an email memorializing the key terms of a global settlement (the “Original Agreement”). The relevant provisions included: (1) all parties would have access to ditches, headgates, and points of diversion along historic routes; (2) no garbage, old vehicles, or machinery would be stored on a six-acre tract just west of Union Pass Road; and (3) Albright’s attorney would draft a formal global settlement agreement within thirty days.
When the parties attempted to reduce the agreement to a formal document, disputes broke out. Cross argued that ditch access could only be accomplished by a recorded easement and that the storage restriction required a restrictive covenant running with the land — both implied by the Original Agreement. Albright rejected those positions, maintaining she had never agreed to easements or covenants and that access was simply permission along existing routes. Both sides filed competing motions to enforce their interpretations. The Fremont County District Court (Judge Jason M. Conder) held oral argument and found that no enforceable agreement existed: the parties had never reached a meeting of the minds on essential implementation terms. The court denied both motions and denied Cross’s request for Rule 11 sanctions. Cross appealed.
The Court’s Holding
Affirmed on all issues.
Due Process: Cross argued the district court violated her due process rights by deciding sua sponte whether a contract had ever been formed — an issue neither party raised. The Wyoming Supreme Court disagreed. When two parties file competing motions asserting opposite interpretations of the same document, they inherently place before the court the question of whether that document reflects a true meeting of the minds. Moreover, at oral argument the district court expressly flagged its concern about contract formation, heard from both sides, and then ruled. That sequence — disclosure of the issue, opportunity to argue, reasoned decision — satisfies due process. The outcome (no contract) was one neither party sought, but the issue was not raised sua sponte; it was a necessary predicate of the dispute the parties themselves brought.
Contract Formation: A settlement agreement is a contract subject to ordinary contract-formation principles. Simek v. Tate, 2010 WY 65, ¶ 19, 231 P.3d 891, 898 (Wyo. 2010). The Original Agreement stated that the parties would have access to ditches along historic routes and that no unsightly items would be stored on the six-acre tract. What it did not say was how those obligations would be implemented. As the court explained, access to another’s land can be granted by an easement appurtenant, an easement in gross, a license, or a license coupled with an interest — each carrying materially different consequences for alienability, revocability, and successor obligations. A restrictive covenant may similarly be personal to the promisor or may run with the land, depending on the parties’ intent. Nothing in the Original Agreement revealed which form the parties contemplated. Without essential terms defined with reasonable certainty, the court could not enforce the agreement or supply the missing terms. At most, the parties made an “agreement to agree” on the mechanics of the deal — a form Wyoming courts consistently treat as unenforceable when those future terms lack sufficient certainty. Rialto Theatre, Inc. v. Commonwealth Theatres, Inc., 714 P.2d 328, 334 (Wyo. 1986).
Attorney’s Fees: Cross argued she was entitled to fees under a contractual provision. The court declined to consider the argument because it had not been raised or argued below — Wyoming’s general rule is that arguments not presented to the trial court are waived on appeal. In any event, because no enforceable contract existed, there was no contractual fee provision to invoke.
Key Takeaways
- A mediated term sheet or settlement email that resolves the high-level disputes but leaves implementation to a future formal document may be only an unenforceable “agreement to agree” if the mechanism for carrying out agreed access or use restrictions is not specified with reasonable certainty.
- When both parties file competing motions to enforce an agreement but sharply disagree about what it requires, they implicitly put contract formation in issue. A Wyoming district court does not violate due process by resolving that predicate question after giving both sides the opportunity to argue it at the hearing.
- For ditch-access and irrigation provisions to be enforceable in Wyoming, the parties must agree on the legal vehicle: easement appurtenant, easement in gross, license, or license coupled with an interest. Courts cannot fill that gap retroactively. The same principle applies to land-use restrictions — the parties must specify whether the restriction runs with the land or is a personal obligation.
- Attorney’s-fee arguments not raised before the trial court are waived under Wyoming’s appellate preservation rules, regardless of whether a contractual fee provision arguably existed.
Why It Matters
Cross v. Albright is a cautionary tale for Wyoming real property practitioners about the risks of leaving a mediated settlement in term-sheet form. The email the parties signed at the close of mediation resolved the high-level disputes — who gets access, what gets restricted — but said nothing about how. That silence proved fatal. Wyoming’s diverse toolkit of land-access mechanisms means that practitioners must do more than get the parties to agree that access will exist; they must agree on the type of interest that will carry that access. Access by easement appurtenant runs with both the dominant and servient estates and binds successors; a license is revocable at will and dies with the transaction. The same granularity applies to any promised restriction on land use: is it personal to the promisor, or does it bind her heirs and assigns? Without those specifics nailed down in the mediation room, courts cannot rescue the deal.
The decision also reinforces Wyoming’s strict appellate preservation doctrine: if an argument — including a claim for attorney’s fees — was not raised and argued at the trial level, the Wyoming Supreme Court will not entertain it on appeal. For practitioners structuring mediated settlements involving real property access or use restrictions, the lesson is to work out the mechanism of every land interest, the scope of any covenant, and any fee entitlement before leaving the mediation table.