IN THE SUPREME COURT, STATE OF WYOMING

2014 WY 70

APRIL TERM, A.D. 2014

May 30, 2014

JAMES THOMAS GHEEN and 

EDWARD DALE GHEEN,

Appellants

(Petitioners),

v.

STATE OF WYOMING, ex rel., 

DEPARTMENT OF HEALTH, 

DIVISION OF HEALTHCARE 

FINANCING/EQUALITYCARE,

Appellee

(Respondent).

S-13-0159

Appeal from the District Court of Goshen County

The Honorable Keith G. Kautz, Judge

Representing Appellants:

Craig C. Cook and Dennis C. Cook, Cook and Associates, P.C., Laramie, 

Wyoming. Argument by Mr. Dennis C. Cook.

Representing Appellee:

Peter K. Michael, Wyoming Attorney General; Robin Sessions Cooley, Deputy 

Attorney General; Donna A. Murray, Senior Assistant Attorney General. 

Argument by Ms. Murray.

Before KITE, C.J., and HILL, BURKE, DAVIS, and FOX, 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 typographical or other formal errors so correction may be made 

before final publication in the permanent volume.
1

KITE, Chief Justice.

[¶1] The State of Wyoming, ex rel. Department of Health, Division of Healthcare 

Financing/Equalitycare (the Department) filed a lien against two properties to recover the 

cost of Medicaid benefits paid on behalf of Peggy Gheen. Mrs. Gheen’s sons, James and 

Edward Gheen (hereinafter “Gheen sons”), filed a petition to remove a false lien and 

quiet title, claiming they were the rightful owners of the properties pursuant to quitclaim 

deeds recorded after their mother’s death. The district court granted summary judgment 

in favor of the Department, ruling that under the relevant federal and state laws, the lien 

was appropriate.1 The Gheen sons appealed. 

[¶2] We affirm. 

ISSUES

[¶3] The Gheen sons present the following issues on appeal:

I. Whether the district court had subject matter 

jurisdiction to determine sua sponte the validity of the 

quitclaim deeds transferring property to [the Gheen 

sons] when [the Department] lack[ed] standing to 

question the grantor’s donative intent at the time of 

due execution of the conveying deeds, or in the 

alternative whether it erred as a matter of law by 

nullifying two uncontested quitclaim deeds. 

II. Whether the remedial provisions of Wyo. Stat. Ann. § 

29-1-601(b) may be invoked against [the Department] 

as claimant on the legally groundless and 

impermiss[i]ble recorded claim of lien against property 

known to belong to [the Gheen sons], as individuals 

against whom [the Department] ha[s] no rights to 

recover, as a matter of public record.

The Department states the issues as:

I. Federal and state law require [the Department] to seek 

reimbursement from the real and personal property in 

which an individual had any legal title or interest at the 

 

1 The district court did quiet title in the Gheen sons to an undivided one-half interest in one of the 

properties, which they had received in 2002 from their father’s estate. 
2

time of death in order to recover amounts paid for 

medical assistance. [The Department] provided 

medical assistance to Peggy Gheen during the last 

three months of her life. After Mrs. Gheen died[,] [the 

Department] placed a lien on two parcels of land in 

which Ms. Gheen had an interest.

Ms. Gheen’s sons brought a petition to remove the lien 

claiming it was false or frivolous because they had 

recorded deeds which they found after their mother 

died. Although the deeds were dated in 2006, they 

were not delivered to the Gheen [sons], the Gheen 

[sons] did not know of them until after their mother’s 

death, and they were not recorded until 2011.

Did the district court correctly rule that, as a matter of 

law, there had been no conveyance of the property in 

2006 and that [the Department] could record a lien 

against it?

II. Wyoming’s prohibition against frivolous liens 

invalidates liens filed against the property of a 

government official based on that official’s 

performance or nonperformance of official duties. Did 

the district court correctly determine that this statute 

does not apply to a lien filed by [the Department] 

against Ms. Gheen’s property and correctly dismiss the 

Petition to Remove False Claim filed pursuant to 

Wyoming Statute § 29-1-601(b)?2

FACTS

[¶4] This matter involves two Goshen County, Wyoming properties—a residence and a 

farm. Dale Gheen, who was Mrs. Gheen’s husband and the Gheen sons’ father, passed 

away in 2001. Mr. and Mrs. Gheen owned the residential property as tenants by the 

entireties, and after Mr. Gheen’s death, Mrs. Gheen filed an affidavit stating she was the 

sole owner pursuant to her right of survivorship. The farm property was distributed 

through Mr. Gheen’s intestacy proceedings, with an undivided one-half distributed to 

Mrs. Gheen and an undivided one-quarter interest to each of the Gheen sons. Mrs. Gheen 

executed quitclaim deeds for her interests in the residential and farm properties to the 

 

2 The Department overstates the district court’s ruling in this issue. See ¶ 33, infra. 
3

Gheen sons and they were notarized on December 29, 2006. She did not, however, 

inform her sons about the deeds or record them. 

[¶5] On May 4, 2010, James Gheen applied for Medicaid benefits on behalf of Mrs.

Gheen. In the application, he indicated that Mrs. Gheen owned the residential property 

and an interest in the farm property. The Department approved Mrs. Gheen’s application, 

and she received $10,508.54 in Medicaid benefits before she passed away on August 1, 

2010. 

[¶6] The Gheen sons discovered the quitclaim deeds in Mrs. Gheen’s personal papers 

after her death. On the advice of their attorney, they recorded the deeds on March 1, 

2011, effectively avoiding probate of their mother’s real property interests. On May 19, 

2011, the Department filed a lien against both properties. 

[¶7] The parties corresponded over the next several months about the effect of the 

quitclaim deeds on the Department’s lien. The Department eventually took the position 

that Mrs. Gheen owned an interest in the properties at the time of her death, which was 

subject to the Medicaid lien. On July 11, 2012, the Gheen sons filed a petition to remove 

false lien under Wyo. Stat. Ann. § 29-1-601 (LexisNexis 2011). In general, they asserted 

the Department’s lien was false because they owned the properties pursuant to the 

quitclaim deeds and they did not owe any debt to the Department. The Gheen sons 

claimed they were entitled to removal of the lien, statutory damages and attorney fees. 

[¶8] The Department answered asserting the lien was valid and § 29-1-601 did not 

apply to Medicaid liens. The Gheen sons moved to amend their petition to clarify that

their action was to quiet title in the properties as supplemented by the damages provisions 

of § 29-1-601. The district court granted the motion to amend. 

[¶9] The Department filed a motion for summary judgment asserting its lien was proper 

because Mrs. Gheen owned the properties at the time of her death and the quitclaim deeds 

were not valid conveyances. The Gheen sons filed a cross motion for summary 

judgment, claiming the deeds were valid, their mother did not own any interest in the 

properties at the time of her death, and the Department did not take appropriate action to 

have the deeds declared void. They also asserted that, regardless of the efficacy of the 

deeds, they owned an undivided one-half interest in the farm property as a result of their 

inheritance from their father and it could not be encumbered by the Department’s lien. 

[¶10] The district court held a hearing on the competing summary judgment motions on 

January 2, 2013. On April 18, 2013, the district court granted the Department’s motion 

for summary judgment declaring its lien valid as to Mrs. Gheen’s residence and one-half 

interest in the farm property. It also granted the Gheen sons’ motion to quiet title and 

declared the Department’s lien did not apply to their undivided one-half interest in the 

farm property. The Gheen sons appealed. 
4

STANDARD OF REVIEW

[¶11] A district court’s summary judgment order is reviewed de novo, using the same 

materials and following the same standards as the district court. Michael’s Constr., Inc. 

v. American Nat’l Bank, 2012 WY 76, ¶ 8, 278 P.3d 701, 703-04 (Wyo. 2012); Grynberg 

v. L & R Exploration Venture, 2011 WY 134, ¶ 16, 261 P.3d 731, 736 (Wyo. 2011). 

W.R.C.P. 56(c) allows summary judgments when

the pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any, show 

that there is no genuine issue as to any material fact and that 

the moving party is entitled to a judgment as a matter of law. 

The facts are viewed from the vantage point most favorable to the party who opposed the 

motion, and we give that party the benefit of all favorable inferences which may fairly be 

drawn from the record. Michael’s Constr., ¶ 8, 278 P.3d at 703-04. 

DISCUSSION

1. General Medicaid Recovery Principles

[¶12] We recently discussed the general principles of Medicaid benefits recovery in 

Estate of Marusich v. State ex rel. Dep’t of Health, 2013 WY 150, ¶¶ 9-12, 313 P.3d 

1272, 1276-78 (Wyo. 2013) and will not repeat the full discussion here. In general, 

Medicaid is a joint federal and state program that provides medical benefits to qualified 

recipients and is a “‘payer of last resort.’” Arkansas Dep’t of Health & Human Servs. v. 

Ahlborn, 547 U.S. 268, 291, 126 S. Ct. 1752, 1767, 164 L. Ed. 2d 459 (2006), quoting 

S.Rep. No. 99-146 at 313 (1985); Wyo. Stat. Ann. §§ 42-4-101 through 102; State of 

Wyoming ex rel. Dep’t of Health, Div. of Healthcare Financing v. Dairyland Insur. Co.,

11 P.3d 348, 350 (Wyo. 2000). 

[¶13] Wyoming Medicaid statutes include provisions for reimbursement of Medicaid 

payments and authorize the filing of a lien against the property of a deceased recipient’s 

“estate” as defined in Wyo. Stat. Ann. § 42-4-207(j) (LexisNexis 2013). That statute 

states in relevant part:

(j) The department may file a lien against the property of any 

estate, as defined in W.S. 42-4-206(g), of a deceased recipient 

for the amount of medical assistance provided while the 

recipient was fifty-five (55) years of age or older or while the 

recipient was an inpatient in a nursing facility, intermediate 

care facility for people with intellectual disability or other 
5

medical institution. The department shall perfect this lien by 

filing a notice in the county in which the real property exists. . 

. . 

Section 42-4-207(j). Section 42-4-206(g) (LexisNexis 2013) defines “estate” as:

(ii) “Estate” shall include all real and personal property and 

other assets included within the individual’s estate, as defined 

for purposes of this state’s probate law, and includes any 

other real and personal property and other assets in 

which the individual had any legal title or interest at the 

time of death to the extent of that interest, including such 

assets conveyed to a survivor, heir or assign of the deceased 

individual through joint tenancy, tenancy in common, 

survivorship life estate, living trust or other arrangement.

(Emphasis added). 

[¶14] As we discussed at length in Marusich, ¶¶ 10-12, 313 P.3d at 1277-78, § 42-4-

206(g)(ii)’s definition of “estate” includes, in addition to typical probate assets, “other 

assets in which the individual had any legal title or interest at the time of death.” The 

rule also encompasses the corollary—the statutory definition of estate does not include 

property properly transferred prior to death.3 Id. See also In re Estate of Barg, 752 

N.W.2d 52 (Minn. 2008); In re Estate of Grote, 766 N.W.2d 82, 86-87 (Minn. Ct. App. 

2009); North Dakota Dep’t of Human Servs. v. Thompson, 586 N.W.2d 847, 850 (N.D. 

1998). The issue raised in this case is whether, under § 42-4-206(g)(ii), Mrs. Gheen 

owned an interest in the properties at the time of her death. 

2. Department’s Standing to Contest the Deed

[¶15] The district court accepted the Department’s argument that the quitclaim deeds 

were not effective to transfer Mrs. Gheen’s property interests because they were not 

delivered during her lifetime. The Gheen sons assert the Department did not have 

standing to contest the validity of the deeds. Standing implicates a court’s subject matter 

jurisdiction and can, therefore, be challenged at any time. Given the jurisdictional nature 

of the question, the existence of standing is strictly a legal issue. Northern Laramie 

Range Foundation v. Converse County Bd. of County Comm’rs, 2012 WY 158, ¶ 22, 290 

P.3d 1063, 1073 (Wyo. 2012); Halliburton Energy Servs. v. Gunter, 2007 WY 151, ¶ 10, 

167 P.3d 645, 649 (Wyo. 2007); Hicks v. Dowd, 2007 WY 74, ¶ 18, 157 P.3d 914, 918 

(Wyo. 2007).

 

3 We are not addressing the possibility of recovering assets which were improperly transferred during the 

“look back” period. See, e.g., Wyo. Stat. Ann. § 42-4-207(h).
6

[¶16] A party generally has standing if it is “properly situated to assert an issue for 

judicial determination.” Cox v. City of Cheyenne, 2003 WY 146, ¶ 9, 79 P.3d 500, 505 

(Wyo. 2003). See also Northern Laramie, ¶ 23, 290 P.3d at 1073. As we stated above, 

the Department has the statutory right to seek reimbursement of Medicaid benefits under 

§§ 42-4-206 and 207. It may do so by filing a lien against property included in the 

Medicaid recipient’s estate, as that term is defined in § 42-4-206(g)(ii). The statutes, 

therefore, give the Department a stake in determining the assets included within the 

statutory “estate.” 

[¶17] The Gheen sons claim that, under Wyo. Stat. Ann. § 34-1-127 (LexisNexis 2013), 

the Department did not have standing to contest delivery of the deeds from their mother 

to them. Section 34-1-127 states: 

When a deed or mortgage purports to be an absolute 

conveyance in terms, but is made or intended to be made 

defeasible by force of defeasance, or other instrument for that 

purpose, the original conveyance shall not be thereby 

defeated or affected as against any person other than the 

maker of the defeasance, or his heirs or devisees, or persons 

having actual notice thereof, unless the instrument of 

defeasance shall have been recorded in the office of the 

county clerk of the county where the lands lie.

[¶18] This statute applies only to a conveyance that is defeasible or subject to 

defeasance and restricts the persons who may challenge it unless the document has been 

recorded. Defeasance is defined as “[a]n instrument which defeats the force or operation 

of some other deed or estate. That which is in the same deed is called a ‘condition;’ and 

that which is in another deed is a ‘defeasance.’” The plain meaning of defeasible is: 

“Subject to be defeated, annulled, revoked, or undone upon the happening of a future 

event or the performance of a condition subsequent, or by a conditional limitation.” 

Black’s Law Dictionary 481 (9th ed. 2009). 

[¶19] The concept of defeasance, therefore, relies on the validity of the original 

conveyance, which can thereafter be defeated by a subsequent action or happening. See,

e.g., Moorcroft v. Lang, 761 P.2d 96 (Wyo. 1988) and Wood v. Bd. of County Comm’rs of 

Fremont County, 759 P.2d 1250, 1252 (Wyo. 1988) (explaining that a defeasible interest 

may also be known as a fee simple determinable). Here, the Department is not claiming 

the quitclaim deeds were subject to defeasance, but, rather, that they were not effective in 

the first place because they were not delivered by the grantor, Mrs. Gheen, to the 

grantees, the Gheen sons. Section 34-1-127 does not, therefore, apply in this case. The 

Department has standing to challenge the quitclaim deeds. 
7

3. Effectiveness of Deeds/Delivery

[¶20] The Gheen sons argue the quitclaim deeds were effective when Mrs. Gheen 

executed them in 2006. We have stated in several cases that “[t]o effect a conveyance 

transferring title, a deed must be both executed and delivered.” Lenhart v. Desmond, 705 

P.2d 338, 342 (Wyo. 1985). See also Hein v. Lee, 549 P.2d 286, 292 (Wyo. 1976); B-T 

Ltd. v. Blakeman, 705 P.2d 307, 312 (Wyo. 1985). In Forbes v. Volk, 358 P.2d 942, 945

(Wyo. 1961), quoting Klouda v. Pechousek, 110 N.E.2d 258, 262 (Ill. 1953), we stated: 

“The delivery is as necessary to make it a deed as the signing and sealing [notarization].” 

23 Am. Jur. 2d Deeds § 103 states the concept another way but confirms that delivery is 

required for a deed to be valid: “A deed conveying title must be delivered as the final 

step in the execution of deed. Thus, a deed, to be operative as a transfer of the ownership 

of land or an interest or estate therein, must be delivered; it is delivery that gives the 

instrument force and effect.” 

[¶21] The Gheen sons argue that delivery is not required for a quitclaim deed, citing the 

differences in the statutory language applicable to warranty and quitclaim deeds. Wyo. 

Stat. Ann. § 34-2-103 (LexisNexis 2013) states the effect of a warranty deed: 

Every deed in substance in the above form [§ 34-2-102], 

when otherwise duly executed, shall be deemed and held a 

conveyance in fee simple, to the grantee, his heirs and 

assigns, with covenants on the part of the grantor, (a) that 

at the time of the making and delivery of such deed he was 

lawfully seized of an indefeasible estate in fee simple in and 

to the premises therein described, and had good right and 

power to convey the same; (b) that the same were then free 

from all incumbrances; and (c) that he warrants to the grantee, 

his heirs and assigns, the quiet and peaceful possession of 

such premises, and will defend the title thereto against all 

persons who may lawfully claim the same. And such 

covenants shall be obligatory upon the grantor, his heirs and 

personal representatives, as fully, and with like effect as if 

written at length in such deed.

(Emphasis added). The effect of a quitclaim deed is set out in Wyo. Stat. Ann. § 34-2-

105 (LexisNexis 2013):

Every deed in substance in the form prescribed in the 

foregoing section [§ 34-2-104], when otherwise duly 

executed, shall be deemed and held a sufficient 

conveyance, release and quitclaim to the grantee, his heirs 

and assigns, in fee of all the then existing legal or equitable 
8

rights of the grantor in the premises therein described, but 

shall not extend to after acquired title unless words are added 

expressing such intention.

(Emphasis added). The Gheen sons claim that since the latter part of the emphasized 

language of § 34-2-103 explicitly discusses delivery in the context of warranty deeds 

while § 34-2-105 does not mention delivery for quitclaim deeds, delivery is required only 

to validate a conveyance by warranty deed but is not required for a valid quitclaim deed. 

[¶22] In determining the meaning of statutes, our principal consideration is the 

legislature’s intent, which must be determined, if possible, from the plain and ordinary 

meaning of the words. When a statute is clear and unambiguous, i.e., “its wording is 

such that reasonable persons are able to agree on its meaning with consistency and 

predictability,” that meaning governs. If a statute is found to be ambiguous because it is 

vague or uncertain and subject to varying interpretations, rules of statutory construction 

are applied. Office of State Lands & Invs. v. Mule Shoe Ranch, Inc., 2011 WY 68, ¶ 13, 

252 P.3d 951, 954–55 (Wyo. 2011); Dorr v. Smith, Keller & Assoc., 2010 WY 120, ¶ 11, 

238 P.3d 549, 552 (Wyo. 2010).

[¶23] Sections 34-2-103 and 105 distinguish between the effects of the two types of 

deeds. The statutes do not, however, specifically delineate all of the requirements for a 

valid conveyance under either scenario. In fact, both statutes discuss the effectiveness of 

deeds that are “duly executed.” Section 34-2-103’s reference to delivery is in the context 

of the guarantees of title included within a warranty deed., i.e., the grantor covenants that 

at the time of delivery, the grantor has good title to the property. The fact that § 34-2-105 

does not contain similar language regarding delivery of a quitclaim deed simply 

highlights the differences between warranty and quitclaim deeds; a quitclaim deed does 

not contain a guarantee that the grantor has any title or interest in the property. The 

obvious purpose of the statute is to highlight the lack of a covenant by the grantor of any 

particular interest in the property. 

[¶24] Each of the statutes has been in effect since 1895. Over the years, our case law 

has consistently stated that delivery is required in order to effectuate any deed. For 

example, Hein, 549 P.2d at 292, concerned the validity of a quitclaim deed which had 

been placed in escrow. We noted the common use of escrowed quitclaim deeds in 

transactions and ruled the signed quitclaim deed was not effective until delivery. 

Similarly, Maurer v. Ballou, 440 P.2d 126, 126-28 (Wyo. 1968) stated delivery was 

required for an effective quitclaim deed. See also Jenkins v. Miller, 2008 WY 45, ¶¶ 13-

14, 180 P.3d at 925, 930-31 (Wyo. 2008) (delivery and acceptance required for easement 

to be effective). The legislature has not taken any action to change the statutes in 

response to this Court’s rulings that delivery is required for a valid conveyance by 

quitclaim deed, thereby confirming the correctness of our rulings. See, e.g., Barlow 

Ranch, L.P. v. Greencore Pipeline Co., 2013 WY 34, ¶ 37, 301 P.3d 75, 87-88 (Wyo. 
9

2013); Crago v. Bd. of County Comm’rs of Crook County, 2007 WY 158, ¶ 17, 168 P.3d 

845, 854 (Wyo. 2007); Albertson’s, Inc. v. City of Sheridan, 2001 WY 98, 33 P.3d 161 

(Wyo. 2001). 

[¶25] The two essential elements of delivery are: “1) transferring possession of the deed 

by the grantor; and 2) acceptance of the deed by the grantee.” B-T, 705 P.2d at 312; 

Jenkins, ¶ 13, 180 P.3d at 930. Delivery and acceptance are both matters of intention, as 

manifested by the words and actions of the grantor and grantee, respectively. B-T, 705 

P.2d at 312-13; Jenkins, ¶ 13, 180 P.3d at 930-31. The Gheen sons maintain that delivery 

is presumed to have occurred in this case because they took possession of the deeds and 

recorded them. In Forbes, 358 P.2d at 945, we stated a rebuttable presumption of 

delivery was created when the grantee obtained possession of the deed and it was

recorded. That principle of law does not, however, further the Gheen sons’ position that 

the deeds were delivered by their mother because it is undisputed that they did not come 

into possession of the deeds or record them until after Mrs. Gheen’s death. In fact, they 

conceded they knew nothing about the deeds until they found them in her personal 

papers. 

[¶26] The Gheen sons also seem to argue the deeds were constructively delivered during 

Mrs. Gheen’s lifetime when she executed and placed them with her personal papers. 

Constructive delivery may occur by placing an executed deed in a location where the 

grantee has access, but it must be coupled with evidence of the grantor’s intent to 

immediately pass title to the property. Lenhart, 705 P.2d at 342. In the case at bar, the 

Gheen sons did not present any evidence that Mrs. Gheen had the intent to pass title to 

the properties during her lifetime. The Gheen sons had no knowledge of the deeds and, 

in fact, James Gheen listed the properties as assets of his mother’s when he filled out the 

application for Medicaid benefits three months before her death. While the documents 

were found with her personal papers, there is no evidence that the Gheen sons had routine 

access to those papers while Mrs. Gheen was alive. In fact, they apparently did not 

search through the papers until sometime after her death. The evidence in this case 

indisputably shows the deeds were not delivered by Mrs. Gheen to her sons. 

[¶27] The Gheen sons also look to Wyo. Stat. Ann. § 42-2-404 (LexisNexis 2013) in 

arguing that the properties were transferred in 2006. That section states:

In the case of an asset held by an individual in common with 

another person in a joint tenancy, tenancy in common or 

similar arrangement, the asset, or the affected portion of the 

asset, shall be considered to be transferred by the 

individual when any action is taken, either by the individual 

or by any other person, that reduces or eliminates the 

individual's ownership or control of the asset.
10

Section 42-2-404 (emphasis added). First of all, we question whether this statute applies 

to the residential property because Mrs. Gheen owned the property individually, not in 

“joint tenancy, tenancy in common, or similar arrangement.” In any event, the provision 

does not support the Gheen sons’ argument because, although Mrs. Gheen signed the 

deeds, she did not deliver them. The deeds were not, therefore, effective to reduce or 

eliminate her ownership or control of the assets. 

4. Due Process

[¶28] The Gheen sons claim they were denied due process of law by the procedures 

utilized in this case. In general, due process entitles a party to notice and the opportunity 

to be heard. U.S. Const. amends. 5 and 14; Wyo. Const. Art. 1, § 6; Reynolds v. Moore,

2014 WY 20, ¶ 11, 318 P.3d 362, 366 (Wyo. 2014). 

[¶29] The Gheen sons argue § 42-4-207(h) required the Department to affirmatively 

petition the district court to void the deeds and its failure to do so denied them due 

process of law. That section states: 

(h) Upon sale of the property on which a lien has been 

imposed pursuant to subsection (c) or (j) of this section, the 

department shall seek recovery of the amount stated in its 

lien. Transfers of real or personal property on or after the 

look-back dates defined in 42 U.S.C. § 1396p4by 

recipients of medical assistance under this chapter, or 

their spouses, without adequate consideration are 

voidable and may be set aside by an action in district 

court.

Section 42-4-207(h) (emphasis and footnote added). Once again, the Gheen sons’ 

argument relies upon the incorrect premise that the deeds were effective transfers. 

[¶30] Here, the Department recorded a lien against the properties to perfect its security 

interest. It provided notice of the lien to the Gheen sons and the parties negotiated 

unsuccessfully for several months. Although the Department indicated that it could file 

an action to void the quitclaim deeds, it did not do so. Instead, the Gheen sons filed a 

petition to remove a false lien, which was later amended to request title be quieted to 

them. 

 

4 The look-back period under 42 U.S.C. § 1396p for deeds dated December 29, 2006, is sixty months. 
11

[¶31] In its answer to the petition, the Department asserted, as an affirmative defense, 

that it was statutorily authorized to file the lien against the properties.5 The Department’s 

motion for summary judgment asserted the quitclaim deeds were not effective because 

they had not been delivered during Mrs. Gheen’s lifetime and Mrs. Gheen owned 

interests in the properties at the time of her death which were subject to a lien under §§ 

42-4-206 and 207. The Gheen sons responded to the Department’s argument. The issue 

of the validity of the deeds was, therefore, effectively joined and fully litigated. The 

Gheen sons do not identify any additional argument or evidence which would have been 

produced had the Department initiated an action to void the deeds. They were, 

unquestionably, provided notice and an opportunity to be heard regarding the validity of 

the deeds. 

5. False Lien Statute

[¶32] Section 29-1-601 provides in pertinent part:

(b) Any person whose real or personal property is 

subject to a recorded claim of lien who believes the claim of 

lien is invalid under subsection (a) of this section, was forged, 

or that the lien claimant knew at the time of filing that the lien 

was groundless, contained a material misstatement or false 

claim, may petition the court having jurisdiction over the lien 

of the county in which the claim of lien has been recorded for 

the relief provided in this subsection. The petition shall state 

the grounds upon which relief is requested, and shall be 

supported by the affidavit of the petitioner or his attorney 

setting forth a concise statement of the facts upon which the 

motion is based.

. . . . 

(iv) If, following a hearing on the matter the court determines 

that the claim of lien is invalid under subsection (a) of this 

section, was forged or that the lien claimant knew at the time 

of filing that the lien was groundless or contained a material 

misstatement or false claim, the court shall issue an order 

striking and releasing the claim of lien and awarding damages 

of one thousand dollars ($1,000.00) or actual damages, 

 

5 The Gheen sons assert the Department was required to present a compulsory counterclaim under 

W.R.C.P. 13. It makes no difference whether an assertion is characterized as a counterclaim or defense 

because W.R.C.P. 8(c) specifically allows: “When a party has mistakenly designated a defense as a 

counterclaim or a counterclaim as a defense, the court on terms, if justice so requires, shall treat the 

pleading as if there had been a proper designation.” 
12

whichever is greater, costs and reasonable attorneys’ fees to 

the petitioner to be paid by the lien claimant;

(v) If the court determines that the claim of lien is valid, the 

court shall issue an order so stating and shall award costs and 

reasonable attorneys’ fees to the lien claimant to be paid by 

the petitioner.

[¶33] The Department asserted in the district court that § 29-1-601 did not apply to 

Medicaid liens. Although the district court did not address the issue of the applicability 

of the statute to the Department’s lien in any detail, it indicated that it may apply. The 

district court ruled the Department’s lien could not extend to the Gheen sons’ undivided 

one-half interest in the farm property and quieted title in that portion of the property to 

them. Using the language of § 29-1-601, the district court concluded:

23. The State’s lien against all of [the farm 

property], instead of only against Ms. Gheen’s undivided 1⁄2 

of [the farm property], does not constitute a material 

misstatement or false claim. Because the lien properly 

applies to an undivided 1⁄2 of the property, and because it 

specified that it was made only against Ms. Gheen’s property, 

there was no material misstatement or false claim. The lien 

was not groundless, but instead was valid against [the 

residence] and against Ms. Gheen’s undivided 1⁄2 of [the farm 

property].

24. As a matter of law, [the Gheen sons’] claim that 

the [Department] filed a “groundless” lien or a lien based on a 

“material misstatement” or “false claim” must be denied. 

25. As a matter of law, [the Gheen sons’] claim for 

Quiet Title as to their undivided 1⁄2 of [the farm property] 

must be granted.

(Emphasis in original). 

[¶34] The Department did not appeal the district court’s ruling quieting title in favor of 

the Gheen sons on their one-half interest in the farm property. Although the Gheen sons 

assert that the district court erred by denying them relief under the remedial provisions of 

§ 29-1-601, their argument focuses on the claimed error by the district court in granting 

summary judgment in favor of the Department on the validity of its lien. They do not 

argue the district court erred by ruling as a matter of law that the Department’s lien 

against their one-half interest in the farm property was not groundless or based on a 

material misstatement or false claim. Given our affirmance of the district court’s 

decision that the Department’s Medicaid lien was valid as to the residence and Mrs.
13

Gheen’s one-half interest in the farm property, we do not need to further address the 

statute. 

[¶35] Affirmed.6 

 

6 We recognize both parties have strong philosophical beliefs associated with the issues in this case. The 

Gheen sons maintain the Department was improperly attempting to “bully” them into paying a debt they 

did not owe, while the Department asserts the Gheen sons were attempting to prevent the state from 

recovering the reimbursement to which it was legally entitled. The record of this case does not establish 

that either party had nefarious intentions. The answers to the legal questions are found directly in our 

statutes, federal statutes and our case law, and the parties’ assertions of moral and ethical superiority was 

unnecessary and irrelevant.