IN THE SUPREME COURT, STATE OF WYOMING

2017 WY 33

OCTOBER TERM, A.D. 2016

March 17, 2017

BRUCE R. ELWORTHY and ANNE B. 

MARSHALL,

Appellants

(Plaintiffs),

v.

FIRST TENNESSEE BANK, FIRST 

HORIZON LOAN CORPORATION, and 

RBS CITIZENS BANK,

Appellees

(Defendants).

S-16-0165

Appeal from the District Court of Sheridan County

The Honorable John G. Fenn, Judge

Representing Appellants:

Bruce R. Elworthy and Anne B. Marshall of Elworthy & Marshall, P.C., Sheridan, 

WY. Argument presented by Mr. Elworthy and Ms. Marshall.

Representing Appellees:

Stephenson D. Emery of Williams, Porter, Day & Neville, P.C., Casper, WY; and 

Steven A. Ellis of Goodwin Proctor, LLP, Los Angeles, CA for Appellees First 

Tennessee Bank National Association and First Horizon Loan Corporation; and 

Rick A. Thompson and Lucas Buckley of Hathaway & Kunz, P.C., Cheyenne, 

WY for Appellee RBS Citizens Bank. Argument presented by Messer’s Emery, 

Ellis, and Thompson.

Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
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.
1

HILL, Justice.

[¶1] Bruce Elworthy and Anne Marshall (collectively “Plaintiffs”) filed an action 

against Defendants alleging claims for breach of contract, fraud in the inducement, and 

violation of a California law governing fraudulent business practices, all claims in 

relation to Defendants’ financing of Plaintiffs’ real property located in Wyoming and 

California. Plaintiffs filed their action in Wyoming and sought monetary and punitive 

damages, rescission and restitution, and an order declaring all encumbrances recorded 

against their Sheridan, Wyoming property void and expunged.

[¶2] The district court granted Defendants’ Rule 12 motions to dismiss and for 

judgment on the pleadings. In so ruling, the court applied Wyoming law and found that 

Plaintiffs’ breach of contract claims were barred by the statute of frauds and that 

Plaintiffs had failed to plead their fraud and fraud-based claims with the required 

particularity. We affirm.

ISSUES

[¶3] Plaintiffs failed to include in their brief a separate statement of issues presented for 

review, as required by W.R.A.P. 7.01(d).1 Within their statement of the case, Plaintiffs 

do, however, state as follows:

Appellants respectfully submit that the findings by the 

District Court that: (1) the Procedural and Substantive Laws 

of the State of Wyoming controlled the litigation and (2) that 

the fraud counts were defective was reversible error and that 

the subsequent [dismissal] pursuant to Rule 12 of the 

 

1 This Court may refuse to consider an appellant’s contentions for failing to provide a statement of the 

issues presented for review. 

We have previously refused to consider the contentions of a party who has failed to provide a 

statement of the issues. See, e.g., Cline v. Safeco Ins. Companies, 614 P.2d 1335, 1337 

(Wyo.1980). In Cline, we explained:

It is not our job to draw up a list of issues to frame appellant’s argument. For this 

court to undertake this task would mean that we would run the risk of deciding the 

appeal on an issue with respect to which the appellee had not been notified and thus 

had inadequate defense opportunities.

Montoya v. Navarette-Montoya, 2005 WY 161, ¶ 4, 125 P.3d 265, 268 (Wyo. 2005) (quoting Cline, 614 

P.2d at 1337).

Defendants do not appear to have been hampered in their ability to identify and argue the issues on 

appeal, and we will therefore proceed with our review despite Plaintiffs’ failure to separately set forth a 

statement of issues presented for review. 
2

Wyoming Rules of Civil Procedure that the District Court 

ordered was based upon an improper analysis of the 

applicable law[.]

[¶4] Plaintiffs do not reference the district court’s ruling on their breach of contract 

claim, but in the argument portion of their brief, they contend the court erred in that 

ruling. Given Plaintiffs’ statement above and the arguments they make in their briefing, 

we summarize the issues on appeal as follows:

A. Did the district court err in ruling that Wyoming law 

should govern the parties’ dispute?

B. Did the district court err in ruling that Plaintiffs’

breach of contract claims were barred by the statute of 

frauds?

C. Did the district court err in ruling that Plaintiffs failed 

to plead their fraud-based claims with the particularity 

required by W.R.C.P. 9(b)?

D. Did the district court abuse its discretion in ruling that 

it would not permit any further amendments to Plaintiffs’

complaint?

FACTS

A. Events Leading to Wyoming Litigation

[¶5] Bruce Elworthy and Anne Marshall (collectively “Plaintiffs”) are married and are 

both attorneys. In 1997, Plaintiffs bought a home in Sheridan, Wyoming, and in 2002, 

they began looking for a home in California, where they hoped to spend winters. In 

2005, they found a home they wished to purchase in Monterey, California, priced at 

around $3,000,000.2 Along with the home purchase, Plaintiffs were also required to 

purchase the sellers’ country club membership for $118,000.

[¶6] To purchase the California property, Plaintiffs worked with a mortgage broker by 

the name of Sherri Wall. Ms. Wall originally recommended a mortgage that required 

only the California property as collateral, but before Plaintiffs closed on the property, Ms. 

Wall informed Plaintiffs that she had found a better mortgage deal. This deal, which Ms. 

Wall referred to as the "best financing deal by far," required that Plaintiffs take out four 

mortgages to secure financing on the California property. The mortgages were to be 

 

2 The California property is at times referred to as “Belavida.”
3

issued by First Horizon Home Loan Corporation, which subsequently merged into First 

Tennessee Bank National Association (“First Tennessee”), and consisted of: a $1,000,000 

first mortgage on the Sheridan property; a $150,000 home equity line of credit (HELOC) 

on the Sheridan property; a $1,500,000 first mortgage on the California property; and a 

$282,000 HELOC on the California property. Plaintiffs agreed to this financing 

arrangement and closed on the California property.

[¶7] After Plaintiffs moved into the California property, they discovered numerous 

defects that had not been disclosed by the sellers, including flooding and failing windows 

and an insect and rodent infestation. Plaintiffs contacted the sellers, their real estate 

broker, and the contractor that built the home to have the undisclosed defects addressed. 

When no resolution had been reached by the spring of 2007, Plaintiffs demanded 

rescission of the sales agreement. After that demand was rejected, Plaintiffs, in 

November 2007, filed litigation in California against the sellers, the contractor, and the 

real estate brokers, seeking damages and rescission of the sales agreement on the 

California property.

[¶8] In December 2007, shortly after filing the California litigation, Mr. Elworthy was 

diagnosed with a brain tumor that required surgery. After Plaintiffs were advised this 

would affect Mr. Elworthy’s ability to work for some time, they asked Ms. Wall for the 

name of someone with the lender who could discuss their situation. Ms. Wall referred 

Plaintiffs to John Harris, an attorney with First Tennessee in its Irving, Texas office.

[¶9] Plaintiffs thereafter contacted Mr. Harris and informed him of their situation. Mr. 

Harris offered a forbearance agreement on the California portion of the loans, by which 

payments would be deferred on those loans until the conclusion of the California 

litigation and then rolled into the principal balance. Plaintiffs agreed they would continue 

to prosecute the law suit and would pay the property taxes, homeowner assessments, 

insurance, maintenance, utilities and other such expenses on the property. Plaintiffs also 

agreed they would do as much “fix up” as was required to market the property and would 

move out over the coming months to enable the property to be marketed. In discussing 

the matter, Plaintiffs asked Mr. Harris if he wanted some form of written documentation 

of the forbearance and he stated that no writing was required for the action he was taking. 

Plaintiffs thereafter stopped making payments on the California property.

[¶10] Mr. Harris contacted Plaintiffs in the spring of 2008 and informed them that he 

was leaving First Tennessee but that the oral forbearance agreement would remain in 

place. Shortly thereafter, however, Plaintiffs learned that a MetLife entity was servicing 

the loans, and they began receiving late notices from MetLife. Plaintiffs then contacted 

an attorney with MetLife, who denied the existence of a forbearance agreement and 

informed Plaintiffs that if they did not bring the mortgages on the California property 

current, MetLife would issue a notice of default. Plaintiffs were unable to bring the 
4

mortgages current, and in June 2008, MetLife issued a notice of default. Foreclosure 

proceedings on the California property began in 2009.

[¶11] While the foreclosure was pending, Plaintiffs settled with some of the defendants 

in the California litigation. In April 2010, Plaintiffs contacted First Tennessee in an 

effort to delay foreclosure proceedings on the California property and find out what type 

of payment would be required to stop the foreclosure proceedings. First Tennessee 

would not consent to a delay and would not allow Plaintiffs to cure the default by making 

a payment on the mortgage. First Tennessee informed Plaintiffs that the only way they 

could avoid foreclosure was to immediately pay the primary mortgage and HELOC on 

the California property. Plaintiffs could not do that, and on April 23, 2010, First 

Tennessee foreclosed on the property.

[¶12] The suit against the sellers of the California property went to trial in March 2011. 

The California court found negligent misrepresentations by the sellers but denied the 

rescission remedy that Plaintiffs sought on two grounds: 1) the property had already been 

foreclosed on so it could not be returned to the sellers; and 2) Plaintiffs delayed bringing 

the litigation for two years and the doctrine of laches therefore barred the remedy of 

rescission. By a decision issued in November 2013, a California appellate court affirmed, 

agreeing with the trial court that the remedy of rescission was no longer available because 

of the foreclosure.

B. Proceedings in Wyoming District Court

[¶13] On April 16, 2012, while Plaintiffs’ California appeal was still pending, Plaintiffs 

filed a complaint in district court in Sheridan County. The complaint named First 

Tennessee and First Horizon Loan Corporation (collectively “First Tennessee”) as well as 

other financial institutions as defendants and asserted three counts: 1) breach of contract 

relating to the oral forbearance agreement; 2) interference with prospective economic 

advantage, relating to Plaintiffs’ loss of the rescission remedy following the foreclosure 

on the California property; and 3) declaratory relief, seeking a declaration cancelling all 

encumbrances on Plaintiffs’ Sheridan, Wyoming property.

[¶14] On September 6, 2012, Plaintiffs filed their first amended complaint, which added 

two new defendants and two new claims. The new claims were for: 1) misrepresentation 

related to foreign bank manipulation of the London Interbank Offered Rate (“LIBOR”) 

and First Tennessee’s issuance of mortgages, including those on Plaintiffs’ California 

property, pegged to the LIBOR rate; and 2) reformation and restitution related to First 

Tennessee's use of mortgages tied to the LIBOR rate.

[¶15] All defendants named in the first amended complaint filed motions to dismiss or 

for judgment on the pleadings. The district court dismissed all claims against some of the 

named defendants. The court denied First Tennessee’s motion to dismiss except for the 
5

claim against it for interference with a prospective economic advantage. The court 

denied in its entirety the motion for judgment on the pleadings filed by RBS Citizens 

Bank (“RBS”), the entity that now owns the HELOC on the Sheridan, Wyoming 

property. With respect to Plaintiffs’ misrepresentation claim against First Tennessee, the 

court ruled:

At the hearing, Plaintiffs admitted that this count does 

not meet the pleading requirements of W.R.C.P. 9. However, 

they made an oral motion to amend this count to allege fraud 

in the inducement by Ms. Wall. Plaintiffs contend that Ms. 

Wall was acting as the agent for First Tennessee, and that 

they never would have entered into these mortgages if she 

had not misrepresented her status as an independent broker. 

Plaintiffs also alleged that they would not have put the 

Pioneer Property up as collateral if Ms. Wall had not induced 

them to do so, and they are seeking to invalidate those 

mortgages due to Ms. Wall’s fraud. Under these facts, 

Plaintiffs could potentially be entitled to relief. The Court 

recognizes that Plaintiffs’ misrepresentation claim has 

become a “moving target.” W.R.C.P. Rule 15 provides that 

leave to amend “shall be freely given when justice so 

requires.” Therefore, the Court finds that Plaintiffs shall be 

granted leave to amend their complaint to correct the 

deficiencies of their misrepresentation claim. Accordingly, 

the motion to dismiss this claim should be denied at this time. 

[¶16] On February 27, 2015, Plaintiffs filed their second amended complaint against 

First Tennessee and RBS. The second amended complaint asserted claims for breach of 

contract, fraud in the inducement, violation of the California Business and Professions 

Code, and violation of the Truth in Lending Act (“TILA”), and sought monetary and 

punitive damages, rescission and restitution in relation to the TILA and fraud claims, and 

a declaration that all encumbrances on Plaintiffs’ Wyoming property are void.3

[¶17] RBS answered the second amended complaint and filed a Rule 12(c) motion for 

judgment on the pleadings. First Tennessee also filed an answer, which it followed with 

a combined Rule 12(b)(6) motion to dismiss and 12(c) motion for judgment on the 

pleadings. On May 20, 2016, the district court issued its Second Order on Motions to 

Dismiss and for Judgment on the Pleadings. In ruling on the dispositive motions, the 

court judged the sufficiency of the second amended complaint based solely on facts and 

allegations contained therein, and it ruled that Wyoming law governed the parties’

dispute.

 

3 Plaintiffs eventually voluntarily dismissed their TILA claims with prejudice.
6

[¶18] Applying Wyoming law, the district court ruled that Plaintiffs’ breach of contract 

claim was barred by the statute of frauds and that no exception to the statute applied. 

Turning to Plaintiffs’ fraud claims, the court found that Plaintiffs failed to plead the 

claims with the particularity required by W.R.C.P. 9(b) and thus dismissed those claims. 

The court likewise dismissed Plaintiffs’ fraudulent business practices claim under the 

California Business and Professions Code for failing to plead that claim with the 

specificity required for a fraud claim. In ruling on Plaintiffs' claims for restitution and 

rescission and declaratory relief, the court found the claims derivative of the other 

defective claims and ruled that those must likewise be dismissed. Finally, the court noted 

that Plaintiffs had not formally made a motion to amend during the motions hearing but 

had suggested they might seek to amend the complaint to add new allegations of fraud 

based on the disavowal of the forbearance agreement. The court then ruled:

In this case, the Plaintiffs have previously been given two 

opportunities to amend their complaint to cure the 

deficiencies. They were put on notice of the defects in their 

First Amended Complaint during the first round of motions, 

but they did not cure these defects through amendment. 

Therefore, the Court finds in its discretion that a third 

amendment should not be allowed.

[¶19] Plaintiffs filed a timely notice of appeal to this Court.

STANDARD OF REVIEW

[¶20] In dismissing Plaintiffs’ complaint, the district court ruled pursuant to W.R.C.P. 

12(b)(6), which governs motions to dismiss for failure to state a claim, and W.R.C.P. 

12(c), which governs motions for judgment on the pleadings. Our review of a dismissal 

under either rule is de novo. Swinney v. Jones, 2008 WY 150, ¶ 6, 199 P.3d 512, 515 

(Wyo. 2008). Concerning our review of a Rule 12(b)(6) dismissal, we have said:

When reviewing W.R.C.P. 12(b)(6) motions to dismiss, we 

accept the facts stated in the complaint as true and view them 

in the light most favorable to the plaintiff. We will sustain 

such a dismissal when it is certain from the face of the 

complaint that the plaintiff cannot assert any fact which 

would entitle him to relief. Sinclair v. City of Gillette, 2012 

WY 19, ¶ 8, 270 P.3d 644, 646 (Wyo.2012). Although we 

view the facts in the light most favorable to the plaintiff, we 

have also stated that “Liberal construction of pleadings does 

not excuse omission of that which is material and necessary 

in order to entitle one to relief.” Excel Constr., Inc. v. HKM 
7

Eng’g, Inc., 2010 WY 34, ¶ 35, 228 P.3d 40, 49 (Wyo.2010)

(citing William F. West Ranch, LLC v. Tyrrell, 2009 WY 62, 

¶ 9, 206 P.3d 722, 726 (Wyo.2009)).

Stroth v. North Lincoln County Hosp. Dist., 2014 WY 81, ¶ 6, 327 P.3d 121, 125 (Wyo. 

2014).

[¶21] Concerning Rule 12(c) motions for judgment on the pleadings, we have said:

A defendant is entitled to judgment on the pleadings if the 

undisputed facts appearing in the pleadings, supplemented by 

any facts of which the district court may take judicial notice, 

establish that no relief can be granted.... A judgment on the 

pleadings is appropriate if all material allegations of fact are 

admitted in the pleadings and only questions of law remain.

Inman v. Boykin, 2014 WY 94, ¶ 13, 330 P.3d 275, 279 (Wyo. 2014) (quoting Newport 

Int’l Univ. v. Wyo. Dep’t of Educ., 2008 WY 72, ¶ 12, 186 P.3d 382, 386 (Wyo. 2008)).

DISCUSSION

A. Choice of Law

[¶22] The district court reviewed the allegations in Plaintiffs’ second amended 

complaint and concluded that based on those allegations, the relevant transactions 

occurred in Wyoming and Wyoming law therefore governed the dispute. Plaintiffs 

contend that the court’s analysis was flawed and that California law should govern. We 

find no error in the district court’s conclusion.4

[¶23] In analyzing choice of law questions, this Court uses the approach defined by the 

Restatement (Second) of Conflict of Laws:

 

4 First Tennessee contends that there is no need to engage in a choice of law analysis because there is no 

material difference between Wyoming and California law. Boutelle v. Boutelle, 2014 WY 147, ¶ 21, 337 

P.3d 1148, 1155 (Wyo. 2014) (“In the absence of a conflict, there is no need for the court to engage in a 

conflict of laws analysis.”); Act I, LLC v. Davis, 2002 WY 183, ¶ 11, 60 P.3d 145, 149 (Wyo. 2002) 

(“When there is no conflict, the Court applies the law of the forum.”). The district court, however, noted 

some differences between Wyoming and California law governing exceptions to the statute of frauds, and 

First Tennessee’s brief on appeal sets forth the elements of fraud under California law and those elements 

differ somewhat from Wyoming’s elements. While we are not persuaded that the differences in 

Wyoming and California law would necessarily change the outcome of the parties’ dispute, rather than 

engage in an extended analysis of those differences, we find it more expedient to simply determine which 

state has the more significant contacts to the issues before us.
8

The Second Restatement method is constructed around 

the principle that the state with the most significant contacts 

to an issue provides the law governing that issue. See

[Ingersoll v. Klein,] 46 Ill.2d 42, 262 N.E.2d [593] at 594–95 

[Ill.1970]. A court therefore conducts a separate choice-oflaw analysis for each issue in a case, attempting to determine 

which state has the most significant contacts with that issue. 

International Adm’rs, Inc. v. Life Ins. Co. of North America, 

753 F.2d 1373, 1376 n. 4 (7th Cir.1985). The Second 

Restatement enumerates specific factors that identify the state 

with the most significant contacts to an issue, and the relevant 

factors differ according to the area of substantive law 

governing the issue and according to the nature of the issue 

itself. See, e.g., Restatement (Second) at §§ 6, 145, 188. To 

properly apply the Second Restatement method, a court must 

begin its choice-of-law analysis with a characterization of the 

issue at hand in terms of substantive law. Id. at § 7. By 

prescribing this analytical approach, the Second Restatement 

follows the principle of depecage, which has been long 

applied in connection with various methods for choice of law. 

See Willis L.M. Reese, Depecage: A Common Phenomenon 

in Choice of Law, 73 Colum. L.Rev. 58 (1973).

Boutelle, ¶ 20, 337 P.3d at 1155 (quoting Act I, LLC v. Davis, 2002 WY 183, ¶ 10, 60

P.3d 145 at 149 (Wyo. 2002)).

[¶24] The district court based its choice of law determination solely on the allegations in 

Plaintiffs’ second amended complaint, and we do likewise. In doing so, we will first set 

forth the relevant allegations from the second amended complaint, and we will then 

consider each claim individually in relation to the state contacts alleged.

[¶25] The second amended complaint alleged:

¶ 2: “[A]ll agreements entered into that are the subject of 

this litigation were made or to be performed, in part or in 

whole, in the County of Sheridan and the State of Wyoming. . 

. . Plaintiffs seek to reform the title to certain real property 

located in this Judicial District and these claims otherwise 

affect real property located in this Judicial District.”

¶ 3: “Plaintiffs BRUCE R. ELWORTHY and ANNE B. 

MARSHALL are husband and wife and residents of 

Wyoming located at [street address omitted], City of 

Sheridan, County of Sheridan, State of Wyoming.”
9

¶ 26: “All of these loans were arranged in the State of 

Wyoming, the papers were signed and notarized in Wyoming 

and the forbearance agreement referred to below were (sic), 

in part negotiated in Wyoming and performed in Wyoming 

and California.”

¶ 41: “Plaintiffs then contacted John Harris who identified 

himself as an attorney admitted in the State of Texas and a 

representative of the LENDER in LENDER’S Irving, Texas 

office. After informing Harris of the facts, Plaintiffs were 

offered a forbearance agreement on the Belavida portion of 

the Loans[.]”

¶ 54: “Plaintiffs were referred to Larry Cole who identified 

himself as MetLife's Texas counsel.”

¶ 55: “In the course of discussions with Cole, Cole denied 

the existence of any forbearance agreement[.]”

¶ 56: “Cole threatened Plaintiffs that he would issue a 

Notice of Default if Plaintiffs did not, then and there, bring 

the primary Belavida mortgage current.”

¶ 57: “Cole and MetLife then issued a Notice of Default on 

or around June 23, 2008.”

¶ 105: “Under the facts of this case and due to the 

Defendants’ actions as enumerated herein, there is a dispute 

between Plaintiffs and Defendants as to the propriety and 

validity of the encumbrances placed on Plaintiffs’ real 

property located at [street address omitted], City of Sheridan, 

County of Sheridan, State of Wyoming.”

1. Contacts Related to Breach of Contract Claim

[¶26] The Second Restatement identifies several factors to be considered in determining 

which state has the most significant relationship to the contracting transaction and the 

parties to the contract. They include: a) the place of contracting; b) the place of the 

contract’s negotiation; c) the place of performance; d) the location of the contract’s 

subject matter; and e) the residence or place of business of the parties. Restatement 

(Second) of Conflict of Laws § 188 (1971) (October 2016 update).

[¶27] Plaintiffs’ breach of contract claim relates to the forbearance agreement. 

According to the allegations in the second amended complaint, the forbearance 

agreement was negotiated in Wyoming and Texas. This presumably means Wyoming 

and Texas were also the places of contracting, a fact reinforced by ¶ 2 of the second 

amended complaint (“[A]ll agreements entered into that are the subject of this litigation 

were made or to be performed, in part or in whole, in the County of Sheridan and the 

State of Wyoming.”). The second amended complaint further alleges that the contract 
10

was performed in part in Wyoming and California, and related to property in California. 

Finally, the second amended complaint alleges that First Tennessee was operating out of 

its Irving, Texas office when it entered into the forbearance agreement, and, given that 

they negotiated from Wyoming, Plaintiffs presumably were residing in their Wyoming 

property.

[¶28] Plaintiffs contend that because the forbearance agreement concerns the California 

property and the loan on that property, California is the state with the most significant 

contacts to the parties and the transaction. We disagree. While the location of the 

contract’s subject matter is one factor to consider, we have rejected it as the controlling 

factor. BHP Petroleum (Americas), Inc. v. Texaco Expl. and Prod., Inc., 1 P.3d 1253, 

1258 (Wyo. 2000) (“The location of the mineral production in Wyoming, the subject 

matter of the contract, is only one factor not the paramount factor that demonstrates the 

most significant relationship of the parties.”). The forbearance agreement was 

negotiated, in part, in Wyoming, was entered into with Wyoming residents, and was 

performed, in part, in Wyoming. Wyoming’s contact with the transaction and the parties 

to the contract is more significant than California's contact, and we thus agree with the 

district court’s conclusion that Wyoming law should govern the breach of contract 

claim.5

2. Contacts Related to Fraud-Based Claims

[¶29] Plaintiffs allege that Sherri Wall misrepresented to Plaintiffs that she was an 

independent mortgage broker and this misrepresentation induced them to accept her 

recommendations on which loan package to accept in purchasing their California 

property. Both of Plaintiffs’ fraud-based claims stem from this alleged 

misrepresentation.

[¶30] The choice of law approach prescribed by the Second Restatement depends on 

whether the representation and the reliance on that representation were made in the same 

state or different states. Here, Plaintiffs received and acted in reliance on the 

representations in Wyoming, as noted by paragraph 26 of the second amended complaint 

(“All of these loans were arranged in the State of Wyoming, [and] the papers were signed 

and notarized in Wyoming[.]”). Ms. Wall’s location when she made the representation is 

not as clear. The second amended complaint does not allege Ms. Wall’s place of 

business or residence, and the only indication of her location is a reference in ¶ 13 to 

advice Plaintiffs provided her in forming an independent brokerage when GMAC closed 

its Spokane office. Plaintiffs do allege Ms. Wall was an employee of First Tennessee,

and the second amended complaint’s only allegation concerning First Tennessee’s place 

of business is a reference to its Irving, Texas office. We presume then that Ms. Wall’s 

 

5 Neither party has alleged that Texas law should govern the breach of contract claim.
11

representation was made in either Washington or Texas while Plaintiffs’ reliance took 

place in Wyoming.

[¶31] When a defendant’s representations and a plaintiff’s reliance take place in 

different states, the Second Restatement prescribes the following factors to consider in 

making a choice of law determination on a fraud or misrepresentation claim:

(a) the place, or places, where the plaintiff acted in reliance 

upon the defendant’s representations,

(b) the place where the plaintiff received the representations,

(c) the place where the defendant made the representations,

(d) the domicile, residence, nationality, place of incorporation 

and place of business of the parties,

(e) the place where a tangible thing which is the subject of the 

transaction between the parties was situated at the time, and

(f) the place where the plaintiff is to render performance 

under a contract which he has been induced to enter by the 

false representations of the defendant.

Restatement (Second) of Conflict of Laws § 148 (1971) (October 2016 Update).

[¶32] Ms. Wall’s representations were made to Plaintiffs who are, and were at the time 

of the representations, residents of Wyoming. Plaintiffs acted in reliance on the 

representations in Wyoming by accepting the terms of the mortgages and executing the 

loan documents in Wyoming. The loans encumbered property in both Wyoming and 

California, and the continuing performance required by Plaintiffs is to make payments in 

Wyoming on the Wyoming mortgage and HELOC. Applying the Second Restatement 

choice of law factors, we again affirm the district court’s conclusion that Wyoming law 

should govern the fraud-based claims.

[¶33] Plaintiffs’ remaining claims for rescission and restitution, and for declaratory 

relief, are derivative of their fraud claims and are thus likewise governed by Wyoming 

law.

B. Dismissal of Plaintiffs’ Breach of Contract Claim

[¶34] The district court found that the oral forbearance agreement was an amendment to 

the mortgage loans on the California property and was thus barred by the statute of 

frauds. Plaintiffs do not take issue with the district court’s ruling that the forbearance 

agreement was subject to the statute of frauds. They instead contend that their second 

amended complaint adequately pled an equitable exception to the statute of frauds and 

the court therefore erred in dismissing the breach of contract claim. We again find no 

error in the district court’s ruling.
12

[¶35] Plaintiffs argued to the district court that under California law, the statute of frauds 

would not bar their contract claim because they had relied to their detriment on the 

forbearance agreement. The district court, having found that Wyoming law should 

govern, did not consider the California detrimental reliance doctrine and instead looked 

to Wyoming’s equitable estoppel exception to the statute of frauds. The Wyoming 

doctrine operates as follows:

“‘Equitable estoppel is the effect of the voluntary conduct of 

a party whereby he is absolutely precluded from asserting 

rights which might otherwise have existed as against another 

person who has in good faith relied upon such conduct and 

has been led thereby to change his position for the worse.’” 

Snake River Brewing Co., Inc. v. Town of Jackson, 2002 WY 

11, ¶ 28, 39 P.3d 397, 407–08 (Wyo.2002) (quoting State 

Farm Mut. Auto. Ins. Co. v. Petsch, 261 F.2d 331, 335 (10th 

Cir.1958)). “Equitable estoppel arises only when a party, by 

acts, conduct, or acquiescence causes another to change his 

position.” Roth v. First Sec. Bank of Rock Springs, Wyo., 684 

P.2d 93, 96 (Wyo.1984). The elements of equitable estoppel 

are a lack of knowledge, reliance in good faith, and action or 

inaction that results in an injury. Id.

Parkhurst v. Boykin, 2004 WY 90, ¶ 21, 94 P.3d 450, 460 (Wyo. 2004). For equitable 

estoppel to operate as an exception to the statute of frauds, the change in position in 

reliance on the oral agreement must be “of such character and to such an extent that the 

interposing of the defense of the statute would be a fraud.” Redland v. Redland, 2012 

WY 148, ¶ 92, 288 P.3d 1173, 1194 (Wyo. 2012) (quoting Davis v. Davis, 855 P.2d 342, 

349 (Wyo. 1993)).

[¶36] The court rejected equitable estoppel as a defense to the statute of frauds bar upon 

finding that Plaintiffs failed to allege reliance that was: a) a change in position; b) for the 

worse; or c) of such character as to rise to the level of a fraud. Essentially, the court 

concluded that every action Plaintiffs took in alleged reliance on the forbearance 

agreement was an action that Plaintiffs were otherwise obligated to take or had made a 

decision to take independently of the forbearance agreement. On appeal, Plaintiffs do not 

discuss those findings or identify any error in the findings. They instead argue that 

promissory estoppel is also an exception to the statute of frauds and that the district court 

erred in rejecting their promissory estoppel argument.

[¶37] Plaintiffs are correct that promissory estoppel operates as an exception to the 

statute of frauds. Redland, ¶ 91, 288 P.3d at 1193-94 (citing Davis, 855 P.2d at 349)). 

The district court recognized this exception, just as it did the equitable estoppel 
13

exception, but it rejected Plaintiffs’ promissory estoppel argument because Plaintiffs did 

not assert a claim for promissory estoppel in their second amended complaint. The court 

explained:

[I]t is clear that the Second Amended Complaint does not 

currently state a cause of action for promissory estoppel. 

Further, despite Plaintiffs’ request, this Court cannot re-write 

their complaint to state such a cause of action. Although 

Wyoming is a notice pleading jurisdiction, “the simplification 

of pleadings under our rules, specifically Rule 8(a), W.R.C.P., 

in this instance, cannot be taken to eliminate the necessity of 

stating in clear terms the nature and basis of the relief 

sought.” Kearney Lake, Land & Reservoir Co. v. Lake 

DeSmet Reservoir Co., 475 P.2d 548, 552 (Wyo. 1970). 

Plaintiffs had the obligation of drafting their pleadings in such 

a way as to state the nature their causes of action and the basis 

upon which relief can be granted. The Court cannot read into 

the complaint a cause of action which has not been pled, 

especially a cause of action which is inconsistent with the 

facts that have been pled. [Footnote 14]

[Footnote 14]: Plaintiffs have pled that a valid contract 

exists. Promissory estoppel applies only in the absence of a 

valid contract. Although W.R.C.P. 8(e) allows a plaintiff to 

plead alternative causes of action, Plaintiffs in this case have 

not done so, and although the Court must construe the 

pleadings to do “substantial justice” it cannot read facts and 

allegations into the complaint that are not contained therein. 

“Liberality does not go so far as to excuse omission of that 

which is material and necessary in order to entitle relief.” 

Sump v. City of Sheridan, 358 P.2d 637, 642 (Wyo. 1961).

[¶38] We agree with the district court's reasoning. We have held that “[w]hen the 

complaint shows the existence of a built-in defense, a notice to dismiss lies.” Weber v. 

Johnston Fuel Liners, Inc., 540 P.2d 535, 540 (Wyo. 1975) (citing Vossler v. Peterson, 

480 P.2d 393, 394 (Wyo. 1971)). In such circumstances, a plaintiff is required to plead 

the factual allegations that would prevent operation of the built-in defense.

The pleader must be careful not to allege facts that constitute 

a defense to his claim for relief, or, for that matter, a defense 

to his defense. For example, a complaint in an action seeking 

specific performance for the sale of land that alleges an oral 

agreement defeats itself by showing a prima facie defense of 

the statute of frauds. This so-called “built-in defense” may be 
14

either partial or absolute. If partial, it can be avoided by a 

showing that certain facts or circumstances vitiating the 

defense exist. Thus, a statute of frauds defense to the action 

hypothesized above can be avoided if the complaint indicates 

that there has been part performance of the oral contract,

perhaps in the form of improvements on the land.

5 Charles Alan Wright, Arthur R. Miller, et al., Federal Practice and Procedure § 1226 

(3d ed. Jan. 2017 Update) (footnotes omitted).

[¶39] In their second amended complaint, Plaintiffs alleged the breach of an oral 

agreement to amend the mortgage loans on their California property. In so pleading, 

Plaintiffs alleged facts that created a prima facie statute of frauds defense. Because they 

then failed to allege facts sufficient to rebut the statute of frauds defense, the district court 

properly dismissed the breach of contract claim.

C. Dismissal of Fraud-Based Claims

[¶40] The district court dismissed Plaintiffs’ fraud-based claims because they were not 

pled with the particularity required by Rule 9(b) of the Wyoming Rules of Civil 

Procedure. There is no question that the Rule 9(b) pleading requirements had to be met, 

and we find no error in the district court’s conclusion that the second amended complaint 

failed in that regard. Smithco Eng’g, Inc. v. Internat'l Fabricators, Inc., 775 P.2d 1011, 

1018 (Wyo. 1989) (“Clearly, the law of the forum controls procedural matters.”).

[¶41] Plaintiffs’ fraud-based claims include a claim for fraud in the inducement and a 

claim for violation of the California Business and Professions Code. Both claims, 

however, rely on the alleged misrepresentations by Sherri Wall that she was an 

independent mortgage broker, which Plaintiffs claim induced them to enter into 

mortgages to their detriment. Because the claims are for fraud in the inducement, the 

elements that must be alleged to support the claims are: “1) the defendant made a false 

representation intending to induce action by the plaintiff; 2) the plaintiff reasonably 

believed the representation to be true; and 3) the plaintiff suffered damages in relying on 

the false representation.” Claman v. Popp, 2012 WY 92, ¶ 43, 279 P.3d 1003, 1016 

(Wyo. 2012).6 Against these elements, we consider the district court’s ruling that 

Plaintiffs failed to plead their fraud claims with the particularity required by Rule 9(b) of 

the Wyoming Rules of Civil Procedure.

 

6 Plaintiffs allege that First Tennessee knew or should have known that foreign banks were manipulating 

the London Interbank Offered Rate (LIBOR) to which the Belavida mortgage was tied and should have 

disclosed the LIBOR manipulation to Plaintiffs. These allegations seem to suggest a negligent 

misrepresentation claim rather than a fraud claim, but no such claim was asserted in the second amended 

complaint. We therefore have no need to further consider these allegations.
15

[¶42] Rule 9(b) provides that “[i]n all averments of fraud or mistake, the circumstances 

constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge, 

and other condition of mind of a person may be averred generally.” W.R.C.P. 9(b) 

(LexisNexis 2015). We have said:

Rule 9(b) of the Wyoming Rules of Civil Procedure requires 

that “[i]n all averments of fraud ... the circumstances 

constituting fraud ... shall be stated with particularity.” 

W.R.C.P. 9(b); Richey, 904 P.2d at 801 n. 2. To comply with 

the rule:

... the references to ‘circumstances’ is to matters such as 

the time, place, and contents of the false representations, 

as well as the identity of the person making the 

representation and what he obtained thereby. It is the 

pleading of these matters with precision that serves the 

rule’s purpose by apprising defendant of the claim against

him and of the acts relied upon as constituting the fraud 

charged. A pleading that simply avers the technical 

elements of fraud does not have sufficient informational 

content to satisfy the rule’s requirement.

Johnson v. Aetna Cas. & Sur. Co. of Hartford, Conn., 608 

P.2d 1299, 1302–03 (Wyo.1980) (quoting Wright & Miller, 

Federal Practice and Procedure: § 1297). See also United 

States ex rel. Lacy v. New Horizons, Inc., 348 Fed.Appx. 421, 

424 (10th Cir.2009) (“At a minimum, Rule 9(b) requires that 

a plaintiff set forth the ‘who, what, when, where and how’ of 

the alleged fraud, and [she] must set forth the time, place, and 

contents of the false representation, the identity of the party 

making the false statements and the consequences thereof.”) 

(alteration in original).

Rogers v. Wright, 2016 WY 10, ¶ 21, 366 P.3d 1264, 1273 (Wyo. 2016); see also White 

v. Shane Edeburn Constr., LLC, 2012 WY 118, ¶ 26, 285 P.3d 949, 957 (Wyo. 2012) 

(facts supporting elements of fraud must be alleged clearly and distinctly); Lee v. LPP 

Mortg. Ltd., 2003 WY 92, ¶ 11, 74 P.3d 152, 158 (Wyo. 2003) (Rule 9(b) “requires 

reference to matters such as the time, place, and contents of false representations, the 

identity of the person making the representation, and what he obtained thereby.”); In re 

Adoption of Hiatt, 242 P.2d 214, 216 (Wyo. 1952) (fraud complaint must allege tangible 

facts with certainty and definiteness).
16

[¶43] In support of their fraud claims, Plaintiffs alleged as follows in their second 

amended complaint:

11. Plaintiffs’ credit scores (FICA in excess of 800) 

permitted them to buy anywhere without encumbering the 

Wyoming Property. Agent Sherri Wall (“Wall”) obtained 

loan commitments for several properties with an acquisition 

cost equal to or greater than the Monterey Property without 

any Wyoming encumbrance.

12. Wall was well known to Plaintiffs and did business 

with Plaintiffs while Wall was employed by GMAC Home 

Loans. When the Loans were arranged by Wall, Plaintiffs 

understood based on affirmative representations made on 

several occasions to Plaintiffs by Wall that Wall was an 

independent loan broker. Plaintiffs, given their past business 

relationship over many years, had reason to trust Wall's 

judgment and her representations. Had Plaintiffs known the 

true situation, Plaintiffs would not have accepted Wall’s 

advice and proposal without further examination.

13. Wall continually assured Plaintiffs that she was an 

independent loan broker and went so far as to ask Plaintiffs 

for advice on the formation of her new business, an 

independent mortgage brokerage, when GMAC closed its 

Spokane office in 2005. Plaintiffs had enjoyed a relationship 

with Wall since the 1990’s and had referred friends and 

clients to her over many years.

14. Plaintiffs located Belavida in the Fall of 2005 and 

contacted Wall to secure financing for the proposed purchase 

of Belavida. Wall assured Plaintiffs that Belavida, standing 

alone, would be the only property encumbered by any 

mortgage.

15. After further consultations with Wall, Plaintiffs made 

an offer on Belavida with a financing contingency and a 30 

day close * * *. * * * Wall counseled Plaintiffs to submit an 

offer, the terms of which were that a first position mortgage 

was to be placed on Belavida only with the mortgage in the 

amount of $2,256,000 with the balance due coming from 

Plaintiffs' personal assets and a HELOC that Wall would 

arrange on Belavida. No discussion was had with regard to 

any obligation being placed on the [street address omitted] 

Property in Sheridan, Wyoming * * *.

* * * *
17

18. * * * Wall then contacted the Plaintiffs and advised 

them that she had found what the best financing deal was “by 

far.” The “deal” consisted of the following: The Loans 

consisted of a new money mortgage in the amount of 

$1,500,000 on Belavida, a $282,000 HELOC on Belavida, a 

$1,000,000 refinance on [Plaintiffs’ Wyoming property] and a 

$150,000 HELOC on [Plaintiffs' Wyoming property]. There 

was a small existing mortgage on [Plaintiffs’ Wyoming 

property] which as paid in escrow from the proceeds of the 

new mortgage leaving a balance paid into the Belavida 

Escrow of $1,059,756.73 which was a combination of 

Plaintiffs’ funds and the [Wyoming] mortgages. All of the 

“new money” from these Loans went into Belavida. In 

addition, Plaintiffs paid in the sums of $180,000 in out-ofescrow real estate commissions and $118,000 to the Pasadera 

Country Club in order to purchase the Sellers’ club 

membership.

* * * *

25. In reliance on their relationship with Wall * * *, 

Plaintiffs accepted Wall's advice and proceeded to close the 

transaction of the terms set forth in Paragraph 18, above.

* * * *

27. Plaintiffs are informed and believe and thereon allege

that during the escrow on the Monterey property, Wall 

became an employee of [First Tennessee] and that this was 

the sole reason for her recommendation of the “deal.”

* * * *

82. Within three (3) years from the date of filing the 

within action, Plaintiffs learned that Wall was, in fact, an 

employee of [First Tennessee] and not [an] independent loan 

broker as she had claimed.

83. Had Plaintiffs known the true facts they would not 

have entered into the mortgage obligations as described in 

Paragraph 18, above.

84. [First Tennessee] acted in conscious disregard of the 

truth and in furtherance of a scheme or plan to cause Plaintiffs 

to accept these mortgages based on their long standing 

relationship with and reasonable reliance on the claim by 

Wall that she was an “independent” and “working for 

Plaintiffs.”

* * * *

99. By representing herself as an independent loan broker 

while, in fact, an employee of [First Tennessee], Wall 
18

induced Plaintiffs to enter into the mortgages described in 

Paragraph 18, above, by means of fraud.

[¶44] We agree with the district court that these allegations lack the particularity 

required by Rule 9(b). First, as the district court observed, the second amended 

complaint alleged only in general terms that Ms. Wall represented that she was an 

independent broker. The second amended complaint alleged that Plaintiffs “understood

based on affirmative representations made on several occasions” that Ms. Wall “was an 

independent broker,” and it alleged that “Wall continually assured Plaintiffs that she was 

an independent broker.” The second amended complaint failed, however, to allege with 

any type of clarity and specificity the contents of Ms. Wall’s alleged representations. See

Lee, ¶ 11, 74 P.3d at 158 (Rule 9(b) “requires reference to matters such as the * * *

contents of false representations.”); see also Phillips v. Toner, 2006 WY 59, ¶¶ 8, 24, 133 

P.3d 987, 990, 996 (allegation that defendant met with plaintiff “to induce him to perform 

the work and gave repeated assurances that he would be paid for his services” failed to 

allege fraud with required particularity); Mueller v. Zimmer, 2005 WY 156, ¶¶ 14, 17, 

124 P.3d 340, 349, 350 (Wyo. 2005) (allegation that defendant made “unjustified and 

false” claim for unpaid overtime failed to allege fraud with required particularity).

[¶45] Additionally, Plaintiffs’ second amended complaint failed to allege when Ms. 

Wall made the representations that she was an independent broker. The second amended 

complaint alleged that Ms. Wall became an employee of First Tennessee after Plaintiffs 

made their initial offer on the California property and it alleged that “Plaintiffs 

understood based on affirmative representations made on several occasions” that Ms. 

Wall was an independent broker when they accepted her recommendation on the revised 

loan deal. The second amended complaint did not, however, allege that Ms. Wall 

repeated her representation that she was an independent broker between her 

recommendation on the original mortgage proposal and her recommendation on the new 

loan recommendation. Accepting the allegations as true, Ms. Wall represented that she 

was an independent broker at a time when she was an independent broker. The 

allegations are silent as to whether Ms. Wall repeated the representation after she became 

a First Tennessee employee, and there is therefore no allegation to support a claim that a 

misrepresentation by Ms. Wall induced Plaintiffs to accept the second recommended loan 

package.

[¶46] Finally, we also agree with the district court that the second amended complaint 

failed to allege how Plaintiffs were harmed by the alleged misrepresentation concerning 

Ms. Wall’s employment. The second amended complaint alleged that had Plaintiffs 

known Ms. Wall was employed by First Tennessee, they “would not have accepted 

Wall's advice and proposal without further examination.” It further alleged that “[h]ad 

Plaintiffs known the true facts they would not have entered into the mortgage 

obligations[.]” The second amended complaint did not, however, allege what additional 

information would have been important to Plaintiffs or that Plaintiffs would not have 
19

gone through with the purchase of the California property had they known that Ms. Wall 

was a First Tennessee employee. Additionally, the second amended complaint did not 

allege: that Ms. Wall misrepresented the terms of the loan package or failed to disclose 

that the loan deal would encumber both the Wyoming and California properties; that 

Plaintiffs were willing to accept only a loan package that encumbered the California 

property and left the Wyoming property unencumbered; or that there were better loan 

packages available to them that would not have encumbered both the California and 

Wyoming properties.

[¶47] In short, the second amended complaint failed to allege with any specificity that 

there were better loan options available to Plaintiffs, that Plaintiffs would have accepted 

those loan options, and that those loan options would have left Plaintiffs in a better 

position. Based on this failure and the failure of the second amended complaint to plead 

with particularity the content of the representations by Ms. Wall and when those 

misrepresentations were made, we conclude that the district court properly dismissed 

Plaintiffs’ fraud-based claims for failure to plead the claims with the particularity 

required by Rule 9(b) of the Wyoming Rules of Civil Procedure.7

D. District Court’s Denial of Further Complaint Amendments

[¶48] We generally review a district court’s ruling on a motion to amend for an abuse of 

discretion. Dane v. Dane, 2016 WY 38, ¶ 17, 368 P.3d 914, 918 (Wyo. 2016). Plaintiffs 

did not, however, state an issue for our review with respect to the district court’s ruling 

that no further amendments of Plaintiffs’ complaint would be permitted, and Plaintiffs' 

first argument concerning the ruling appears in their reply brief. There, Plaintiffs simply 

point out that they amended their complaint only one time after responsive pleadings 

were filed and they request that this Court afford them an opportunity to again amend 

their complaint. Under these circumstances, we decline any further review of the district 

court’s ruling on further amendments. See Golden v. Guion, 2016 WY 54, ¶ 31, 375 P.3d 

719, 727 n.5 (Wyo. 2016) (Court does not consider issues not supported by cogent 

argument).

CONCLUSION

[¶49] Based on the allegations in Plaintiffs’ second amended complaint, Plaintiffs’

breach of contract claim was barred by the statute of frauds, and Plaintiffs failed to plead 

their fraud claims with the particularity required by Rule 9(b) of the Wyoming Rules of 

Civil Procedure. Affirmed.

 

7 Plaintiffs’ claims for rescission and restitution and for declaratory relief are derivative of their defective 

fraud claims and were thus likewise properly dismissed.