IN THE SUPREME COURT, STATE OF WYOMING

2014 WY 48

APRIL TERM, A.D. 2014

April 11, 2014

MARIAN I. ERDELYI,

Appellant

(Plaintiff),

v.

BRADLEY T. LOTT,

Appellee

(Defendant).

S-13-0116

Appeal from the District Court of Teton County

The Honorable Timothy C. Day, Judge

Representing Appellant:

C.M. Aron and Galen B. Woelk of Aron and Hennig, LLP, Laramie, Wyoming. 

Argument by Mr. Woelk.

Representing Appellee:

James K. Lubing and Leah K. Corrigan of Lubing & Corrigan, LLC, Jackson, 

Wyoming. Argument by Ms. Corrigan.

Before KITE, C.J., and HILL, VOIGT*, BURKE, and DAVIS, JJ.

*Justice Voigt retired effective January 3, 2014.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, 

Cheyenne, Wyoming 82002, of typographical or other formal errors so correction may be made 

before final publication in the permanent volume.
1

KITE, Chief Justice.

[¶1] Marian I. Erdelyi filed an action against her stockbroker, Bradley T. Lott, for fraud 

and constructive fraud. After a trial, a jury found that Mr. Lott committed constructive 

fraud but that Ms. Erdelyi knew or in the exercise of due diligence should have known 

before February 10, 2007, that the fraud had occurred. Based on the jury’s findings, the 

district court entered judgment holding Ms. Erdelyi’s claims were barred by the statute of 

limitations and dismissed the action. 

[¶2] On appeal, Ms. Erdelyi contends the district court erred in instructing the jury on 

negligence and comparative fault in this fraud action. She also asserts the district court 

erred in instructing the jury, for purposes of applying the statute of limitations, to 

determine whether she knew or should have known with the exercise of due diligence 

before February 10, 2007, that the fraud had occurred, because there was no evidence to 

support the instruction. We hold that when the law is properly applied, the evidence did 

not support a finding that Ms. Erdelyi could have discovered the fraud sooner and it was 

error to dismiss the case based on the statute of limitations. We, therefore, reverse the 

judgment and remand for a new trial. 

ISSUES

[¶3] Ms. Erdelyi states the issues for this Court’s determination as follows:

Whether the trial court’s jury instructions, taken as a 

whole, misstated the law in the following particulars:

(A) By instructing the jury to compare a victim’s 

fault on a claim of fraud, and including the victim on the 

verdict form;

(B) By imposing a negligence standard on [Ms. 

Erdelyi] with regard to discovery of her stockbroker’s fraud; 

and

(C) By instructing the jury to determine the date 

[Ms. Erdelyi] discovered her stockbroker’s fraud, when there 

was no evidence of any such discovery presented. 

Mr. Lott asserts the district court properly instructed the jury. 
2

FACTS

[¶4] Ms. Erdelyi was the only child of S. Isabel Sprankle. Ms. Sprankle and Ms. Erdelyi 

were joint tenants with rights of survivorship on an investment account. Pursuant to the 

account agreement, either joint tenant had the authority to independently make purchases 

and sales or withdraw money from the account unless one of them terminated that 

authority in writing. Ms. Sprankle contributed all of the funds held in the account.

[¶5] In 1999, Mr. Lott, a financial advisor employed by UBS/Paine Webber in Michigan, 

took over as manager of the joint account for Ms. Sprankle and Ms. Erdelyi. At the time, 

Ms. Sprankle was eighty-one years old and both she and her daughter were living in 

Laramie, Wyoming. Although Mr. Lott and Ms. Sprankle did not meet face-to-face until 

later, they were by 2001 having regular telephone contact, sometimes speaking with each 

other several times per week. 

[¶6] According to Mr. Lott’s client contact report, Ms. Sprankle shared with him quite 

early in their relationship that she and her daughter did not have a good relationship. Mr. 

Lott quickly befriended Ms. Sprankle, sending her cards and gifts, expressing his desire 

to be friends over and above being her broker and listening to her complaints about her 

daughter. He also offered to find an attorney in Wyoming for her to discuss setting up a 

trust. According to his contact report, Mr. Lott made the offer to find an attorney for Ms. 

Sprankle in February of 2001, after she told him she did not want her daughter to inherit 

her money. 

[¶7] During this same time frame, Mr. Lott persuaded Ms. Sprankle and Ms. Erdelyi to 

transfer to him additional accounts they held as joint tenants with rights of survivorship. 

Ms. Erdelyi requested in writing that Mr. Lott contact her before making any transactions 

with respect to the accounts. Mr. Lott agreed to do as she requested. Although he knew 

at the time that Ms. Sprankle did not want her daughter to have control of the accounts 

and, in fact, wanted her name taken off the accounts, he did not disclose that information 

to Ms. Erdelyi. 

[¶8] By April or May of 2001, despite his earlier agreement to talk with her before 

making any transactions involving the joint accounts, Mr. Lott stopped talking with Ms. 

Erdelyi about what was happening with the joint accounts. He specifically did not tell 

her that Ms. Sprankle was contemplating transferring them to a trust. He also did not 

advise Ms. Erdelyi that he would not be contacting her concerning the accounts. Mr. Lott 

continued, however, to work with Ms. Erdelyi to have her transfer her individual 

accounts to him. Meanwhile, Mr. Lott referred Ms. Sprankle to Clay Geittmann in 

Jackson, Wyoming for purposes of setting up a trust. By May of 2001, Mr. Lott was 

continuing to communicate with Ms. Erdelyi about her accounts without informing her 

that he had referred her mother to a lawyer to begin discussions about transferring the 

joint accounts into a trust. 
3

[¶9] In the summer of 2002, Ms. Sprankle began talking about moving back to 

Michigan. Over the course of the next ten months, Mr. Lott took it upon himself to look 

for a place for Ms. Sprankle to live and sent her pictures of places he thought she might 

want to consider. According to his client contact report, Ms. Sprankle asked him to fly to 

Wyoming and drive her back to Michigan. Mr. Lott declined but agreed to help with the 

logistics of the move as much as he could. In fact, Mr. Lott took an active role in 

assisting Ms. Sprankle in moving to Michigan. 

[¶10] In August of 2001, Ms. Sprankle informed Mr. Lott that she wanted him to be a 

beneficiary of her trust. He understood from what she told him that she intended to make 

a few minor gifts to others, but wanted him to receive the balance of her estate. Mr. Lott 

did not tell Ms. Erdelyi about her mother’s plans nor did he tell Ms. Erdelyi that he could 

not discuss her mother’s plans with her. 

[¶11] In September of 2001, Ms. Sprankle met with Mr. Geittmann. She advised Mr. 

Geittmann that she wanted to appoint Mr. Lott as her trustee upon incapacity and her 

agent for purposes of her durable power of attorney and power of attorney for healthcare. 

She also informed Mr. Geittmann that she wanted to make Mr. Lott the beneficiary of her 

trust to the exclusion of her daughter. She told Mr. Geittmann that Mr. Lott was “her 

close friend” and she wanted to “reward him for his kindness, friendship and support 

throughout the years.” At the time Ms. Sprankle made these statements, she had not met 

Mr. Lott in person and, according to Mr. Lott’s client contact reports, had been in regular 

contact with him by telephone for less than a year.

[¶12] Also in September, Mr. Lott forwarded to Mr. Geittmann a letter of authorization 

for Ms. Erdelyi’s signature allowing the transfer of the joint investment accounts into the 

trust. Mr. Geittmann induced Ms. Erdelyi to sign the letter of authorization by telling her 

that she and her mother would realize substantial tax savings by having the joint accounts 

in the name of the trust. No one informed Ms. Erdelyi that her mother’s intention was to 

disinherit her, that Ms. Sprankle was making Mr. Lott her primary beneficiary, or that by 

signing the letter of authorization, Ms. Erdelyi was giving up her joint ownership rights. 

Even when Ms. Erdelyi called Mr. Lott in October of 2001, and specifically asked about 

the trust, he did not tell her that Ms. Sprankle planned to disinherit her and make him the 

primary beneficiary of her trust. He also did not tell Ms. Erdelyi that her mother had 

instructed him not to discuss her plans for the trust with her daughter. According to Ms. 

Erdelyi, sometime in September or October, Mr. Lott told her that she was the primary 

beneficiary of the trust. 

[¶13] In December of 2001, UBS/Paine Webber was designated as Ms. Sprankle’s 

successor trustee. Subsequently, in March of 2002, Mr. Lott forwarded a letter to Mr. 

Geittmann that he (Mr. Lott) had written to Ms. Sprankle confirming a conversation in 

which, according to Mr. Lott, she told him that she did not want him or UBS/Paine 
4

Webber to disclose to Ms. Erdelyi the details of her trust, and specifically the fact that she 

had designated Mr. Lott as her beneficiary. The letter went on to state that Mr. Lott also 

managed Ms. Erdelyi’s financial assets and UBS/Paine Webber deemed it “imperative 

that [Ms. Erdelyi] be made aware that [Mr. Lott is] a beneficiary to your trust.” The letter 

stated further that Mr. Lott understood Ms. Sprankle did not want her daughter to know 

this information and he would honor Ms. Sprankle’s request to not disclose her wishes to 

her daughter. 

[¶14] After receiving the letter from Mr. Lott, Mr. Geittmann crossed out the following 

lines:

However, I have been advised by my firm’s compliance 

department to have your attorney prepare a document 

directing UBS Paine Webber and me not to disclose any 

information about your trusts, my being a beneficiary or other 

personal information that you do not want made available to 

your daughter Marian.

We should follow up with it all to [Mr. Geittmann] to have 

this document drafted and sent to my boss so that he can pass 

it along to the compliance department to assist in carrying out 

your trust’s directives.

Mr. Lott sent the letter to Ms. Sprankle as revised. 

[¶15] Mr. Geittmann sent a letter dated the same day to Mr. Lott’s boss advising him 

that:

Ms. Sprankle prohibits UBS Paine Webber, Inc., and any of 

its agents, employees, brokers or representatives from 

discussing the terms of Ms. Sprankle’s estate planning with 

her daughter, Marian I. Erdelyi, or otherwise informing Ms. 

Erdelyi about any of the provisions of Ms. Sprankle’s estate 

planning. As a result of the rift that has grown between Ms. 

Sprankle and her daughter, Ms. Erdelyi, Ms. Sprankle has 

elected to leave the majority of her estate to her friends, and 

to virtually disinherit Ms. Erdelyi. Furthermore, Ms. 

Sprankle again reiterated to me that she made the decision to 

benefit [Mr.] Lott, her financial planner, as a result of the 

kindness and friendship that he [has] shown her over the 

years, and not as a result of any persuasion on the part of Mr. 

Lott. 
5

At trial, Mr. Geittmann was not able to say whether he confirmed with Ms. Sprankle that 

those were her wishes before sending the letter in March of 2002. At the time Mr. 

Geittmann sent the letter referencing Mr. Lott’s friendship with Ms. Sprankle “over the 

years,” Mr. Lott and Ms. Sprankle had still not met face-to-face and had been in regular 

contact by telephone for just over one year.

[¶16] In May of 2002, Ms. Sprankle moved back to Michigan and into an apartment Mr. 

Lott had found for her. Mr. Lott picked her up at the airport and assisted her with the 

move. Once Ms. Sprankle was in Michigan, the relationship she and Mr. Lott had 

developed over the telephone grew closer, with Mr. Lott devoting considerable time to 

assisting and caring for Ms. Sprankle in numerous ways. 

[¶17] In mid-July of 2003, Ms. Erdelyi contacted Mr. Lott, stating that she had not heard 

from her mother since early June and her mother had not wanted to see her when she was 

in Michigan earlier that year. Ms. Erdelyi thanked Mr. Lott for looking after her mother 

and asked that he let her know if any problems arose. Mr. Lott responded, saying that he 

had not prevented Ms. Erdelyi from seeing her mother and that he could not discuss Ms. 

Sprankle with her because he had received a “stern” letter from Mr. Geittmann 

prohibiting him from doing so. He did not disclose that Mr. Geittmann wrote the letter 

only after reviewing a similar letter Mr. Lott had written to Ms. Sprankle.

[¶18] Ms. Erdelyi had no further contact with Mr. Lott until November 2003 when she 

wrote to him about her individual accounts. Mr. Lott responded with the suggestion that 

she work with another broker. In her reply, Ms. Erdelyi expressed concern that Mr. Lott 

had ignored her account and avoided communication with her for five months. She also 

asked him to clarify his relationship with her mother, noting that finding her mother an 

apartment and helping her move were beyond his responsibilities as her broker. Ms. 

Erdelyi asked specifically whether Mr. Lott held any powers of attorney to act as her 

mother’s agent and whether he had been appointed to act as executor of any will or trust 

her mother might have. Mr. Lott never responded. 

[¶19] In 2005, Ms. Erdelyi traveled to Michigan. She visited her mother and tried to see 

Mr. Lott but was told he was out of the office. In 2006, Ms. Erdelyi sent Mr. Lott a letter 

asking him to let her know if her mother became ill or passed away and thanking him for 

looking after her mother. Again, Mr. Lott did not respond. 

[¶20] In August of 2009, Ms. Sprankle was declared incompetent and was quite ill. A

friend of hers contacted Ms. Erdelyi who then traveled to Michigan to be with her 

mother. Ms. Erdelyi asked Mr. Lott for a copy of the power of attorney. Mr. Lott 

refused to provide any documentation to her and contacted Mr. Geittmann. Mr. 

Geittmann then wrote a letter advising Ms. Erdelyi that neither he nor her mother’s 

successor trustees were allowed to provide any information concerning the trust “to any

person who is not a current beneficiary of the trust, and since your mother is the sole 
6

current beneficiary of the trust, this would preclude any dissemination of the actual estate 

planning documents or statements of the trust assets to you.” Mr. Geittmann requested 

that Ms. Erdelyi make no further requests for information about the trust during Ms. 

Sprankle’s lifetime.

[¶21] Ms. Sprankle died on October 6, 2009. Ms. Erdelyi learned that she was not a 

beneficiary of her mother’s trust when she received a copy of the trust after her mother’s 

death. Pursuant to the terms of the trust, Mr. Lott received $245,000 in securities and 

over $300,000 in cash from Ms. Sprankle’s estate. 

[¶22] In February of 2011, two years and four months after learning she had been 

disinherited, Ms. Erdelyi filed a complaint against Mr. Lott for fraud and constructive 

fraud.1 She claimed that he failed to disclose material facts and induced her to sign the 

letter of authorization, thereby giving up her ownership rights to the assets in the joint 

accounts. She further claimed she had a special relationship of trust and confidence with 

Mr. Lott by virtue of his position as her investment adviser and he had a duty to disclose 

any conflicts between her interests and his and obtain fully informed consent from her 

before engaging in transactions to his benefit involving accounts in which she had an 

ownership interest. 

[¶23] The case went to trial before a jury. At the close of the evidence, the district court 

instructed the jury concerning the law. Among the instructions given were the following:

INSTRUCTION NO. 16

Constructive fraud is defined as consisting of all acts, 

omissions, and concealments involving breaches of a legal or 

equitable duty resulting in damage to another, and exists 

where such conduct, although not actually fraudulent, ought 

to be so treated when it has the same consequences and legal 

effects. 

INSTRUCTION No. 17

In considering whether constructive fraud occurred, 

you must determine whether Defendant had a duty to Plaintiff 

and, if so, whether it was breached. What is known as an 

informal fiduciary duty may be established if a special 

relationship of trust and confidence existed between 

 

1

In addition to Mr. Lott, Ms. Erdelyi named Mr. Geittmann as a defendant. By joint stipulation of the 

parties, the district court entered an order dismissing him from the action. The complaint also alleged a 

third cause of action against Mr. Lott— breach of agent duties—which Ms. Erdelyi dropped before trial. 
7

Defendant and Plaintiff. Such a duty arises where one party 

has undertaken to gain the confidence of another and 

purported to act or advise with the other’s interests in mind. 

The express reposing of trust and confidence by one party in 

another is not enough to create a fiduciary duty. The duty 

arises from the conduct of the purported fiduciary where 1) 

the other party reposes confidence in the integrity of the 

purported fiduciary, and 2) the purported fiduciary voluntarily 

assumes and accepts the confidence in advising the other 

party.

Fiduciary relationships are extraordinary and not easily 

created. They cannot be the product of wishful thinking, 

because they carry significant legal relationships.

In determining whether a fiduciary duty arose due to a 

relationship of trust and confidence, you should consider the 

factual situations surrounding the involved transactions in this 

matter and the relationship of the parties to each other and to 

the transactions.

If you determine that Defendant owed Plaintiff such a

duty, it is for you to determine whether Defendant breached 

that duty by his acts, omissions, and concealments.

INSTRUCTION NO. 19

A person has the duty to take reasonable steps under 

the circumstances to reduce her injuries and damages. Any 

damages resulting from a failure to take such reasonable steps 

cannot be recovered.

INSTRUCTION NO. 21

Your verdict must be determined on the basis of the

comparative fault of the parties themselves and certain other 

individuals and entities who are not parties to this case. Even 

though certain of the individuals and entities named on the 

verdict form have not appeared or offered evidence, it is 

necessary that you determine whether each of them was at 

fault in the events at issue and determine the percentage of 

fault which is attributable to each of them. The party 

claiming the fault of these “non-party actors” has the burden 

of establishing by a preponderance of the evidence all of the 

facts necessary to prove that any such individual was at fault 
8

and that such fault contributed to the damages claimed to 

have been suffered.

A party or non-party actor is at fault when that 

individual is negligent or acts willfully or wantonly and that 

individual’s negligence or willful and wanton action is a 

cause of the damages for which the claim is made. The terms 

negligence, willful and wanton, and cause are explained in 

other instructions.

The verdict form provided to you includes spaces for 

you to record your determination of the percentage of fault of 

each of the parties and each of the non-party actors. It also 

contains a space for you to record your determination of the 

total damages sustained.

If you find that Plaintiff is fifty percent at fault or less, 

then you should fill in the total amount of damages, if any, on 

the verdict form. Do not reduce your determination of total 

damages by any percentage of fault you have attributed to the 

Plaintiff, the Defendant, or any of the non-party actors.

The Court, and not the jury, will reduce the total 

amount of damages by the percentage of fault you may 

attribute to the Plaintiff and other non-party actors.

In explaining the consequences of your verdict, the 

Court has not meant to imply that any person is at fault. That 

is for you to decide, in conformity with these instructions. 

INSTRUCTION NO. 23

When the word negligence is used in these 

instructions, it means the failure to use ordinary care. 

Ordinary care means the degree of care which should 

reasonably be expected of the ordinary careful person under 

the same or similar circumstances. The law does not say how 

such an ordinary person would act. That is for you to decide.

The party seeking to prove negligence must prove it by 

a preponderance of the evidence. 

A “preponderance of the evidence” is defined as the 

amount of evidence, taken as a whole, that leads the jury to 

find that the existence of a disputed fact is more probable than 

not. You should understand that “a preponderance of the 

evidence” does not necessarily mean the greater number of 

witnesses or exhibits. 
9

INSTRUCTION NO. 25

 If you were to decide that fraud occurred in this case, then 

you will be asked to decide when the Plaintiff discovered the 

fraud. Discovery of the fraud is determined by when the 

injured party knew, or should have known through the 

exercise of due diligence, that the fraud occurred.

[¶24] The district court gave the jury the following verdict form:

1. Do you find that Bradley Lott committed a fraudulent 

misrepresentation of a material fact as defined by the 

Court in Instruction 12?

_______ _______

Yes No

Please proceed to question 2.

2. Do you find that a special relationship of trust and 

confidence existed between Bradley Lott and Marian 

Erdelyi, as defined in the Court’s Instruction 17?

_______ _______

Yes No

If you answered yes to question 2, please proceed to 

question 3, below. If you answered no to question 2 and 

no to question 1, please sign the form and return it to the 

Bailiff, who will then return it to the Court. If you 

answered no to question 2 but yes to question 1, please 

proceed to question 4 below.

3. Having found a special relationship of trust and 

confidence between the parties, did Bradley Lott breach 

his duty of honest advice and full disclosure, as defined in 

Instruction 17?

_______ _______

Yes No

If you answered yes to question number 3, then go on to 

question number 4, below. If you answered no to question 
10

number 3, but yes to question number 1, then proceed to 

question 4, below. If you answered no to questions 1 and 

3, please sign the verdict form, and deliver it to the Bailiff 

who will then deliver it to the Court.

4. Having found that Defendant committed fraud, do you 

find that, before February 10, 2007, the Plaintiff, Marian 

Erdelyi, knew or should have known in the exercise of due 

diligence, that the fraud alleged against Defendant, 

Bradley Lott, occurred?

_______ _______

Yes No

If you answered yes to question number 4, please sign the 

verdict form and give it to the Bailiff who will then 

deliver it to the Court. If you answered no to question 

number 4, go on to answer question number 5, below.

5. Having found fraud by answering “yes” to question 1 

and/or questions 2 and 3, did Marian Erdelyi suffer 

damage as a result of the fraudulent misrepresentation 

and/or constructive fraud committed by Bradley Lott?

_______ _______

Yes No

If you answered yes to question number 5, then go on to 

the questions below. If you answered no to question 

number 5, please sign the verdict form, and deliver it to 

the Bailiff who will then deliver it to the Court.

COMPARATIVE FAULT

6. Do you find that the acts or omissions constituting fault by 

Attorney Clay Geittmann were a substantial factor in 

bringing about damage to Marian Erdelyi?

_______ _______

Yes No

7. Do you find that acts or omissions constituting fault of

UBS/PaineWeber were a substantial factor in bringing 

about damage to Marian Erdelyi?
11

_______ ________

Yes No

8. Do you find that Marian Erdelyi’s own acts or omissions 

constituting fault were a substantial factor in bringing 

about damages to herself?

_______ _______

Yes No

9. Assuming the total percentage of fault to be 100%, what 

percentage of the fault do you attribute to each of the 

following? (Your percentages must total 100%):

Marian Erdelyi __________%

If plaintiff’s percentage of fault is greater than 50%, 

please sign the verdict form and return it to the Bailiff, 

who will then return it to the Court. If Plaintiff’s 

percentage of fault is less than 50%, please proceed to the 

questions below.

Attorney Clay Geittmann __________%

Bradley Lott __________%

UBS/PaineWebber __________%

10.What do you find to be the total amount of damage 

suffered by Plaintiff Marian Erdelyi? (Do not reduce by 

the percentage of fault you found. The Court will reduce 

this amount by any percentage of fault you attribute to 

other actors.)

$__________

The jury answered question 1 “No” and questions 2, 3 and 4 “Yes”. In accordance with 

the verdict form instruction, having answered question 4 “Yes” the jury signed the verdict 

form without answering the remaining questions. The district court entered judgment on 

the jury verdict holding that Ms. Erdelyi’s claims were barred by the statute of 

limitations. Ms. Erdelyi timely appealed to this Court.

STANDARDS OF REVIEW

[¶25] We conclude the statute of limitations question is dispositive of this appeal. The 

application of a statute of limitations is a mixed question of law and fact when the 
12

material facts are in dispute; otherwise, it is a question of law. Redland v. Redland, 2012 

WY 148, ¶ 54, 288 P.3d 1173, 1187 (Wyo. 2012). 

DISCUSSION

1. Evidence that Ms. Erdelyi Discovered the Fraud

[¶26] Although the jury found that Mr. Lott committed fraud, it then found that Ms. 

Erdelyi “knew or should have known” before February 10, 2007, that the fraud occurred. 

Ms. Erdelyi contends there was no evidence to support that conclusion. A cause of action 

for fraud is not deemed to have accrued until the discovery of the fraud. Wyo. Stat. Ann. 

§ 1-3-106 (LexisNexis 2013). We have interpreted the words “until the discovery of the 

fraud” to mean from the time the fraud was known or “could have been discovered in the 

exercise of reasonable diligence.” Retz v. Siebrandt, 2008 WY 44, ¶ 12, 181 P.3d 84, 89-

90 (Wyo. 2008), quoting Mason v. Laramie Rivers Co., 490 P.2d 1062, 1064 (Wyo.

1971) (emphasis added). 

[¶27] Applying this meaning in Retz, we held a claim for conversion was barred by the 

four year statute of limitations because the conversion could easily have been discovered. 

There, the claimants’ mother jointly held a brokerage account with the deceased. They 

claimed that prior to his death the deceased used a fraudulent document to withdraw 

securities from the joint account. They attempted to bring a claim for conversion thirteen 

years after the withdrawal and the district court concluded it was barred by the statute of 

limitations. This Court affirmed, stating that “[a] simple inquiry at the brokerage would 

have shown [the mother] that the account had been emptied.” Id., ¶ 13, 181 P.3d at 90. 

Because the mother could easily have discovered the conversion, the action brought 

thirteen years later was barred.

[¶28] In Mason, the Court dismissed a claim for fraud based on the four year statute of 

limitations. There, corporate stockholders filed an action in 1969 alleging that the 

transfer of stock to another stockholder six years earlier was fraudulent. The district 

court held the action was barred by the statute of limitations. This Court affirmed, 

finding that the claimant stockholders had voted personally or by proxy at the meeting in 

1963 when the stock was transferred, the transfer had been challenged at the meeting by 

an attorney stockholder who attached a letter to the minutes protesting the transfer and 

the corporate books showed the transfer two months later. The Court held the action was 

barred by the statute of limitations because the stockholders had access to and the right to 

examine the corporate records and could easily, therefore, have discovered the fraud 

within four years of the stock transfer. 

[¶29] In both Mason and Retz, the Court held actions filed after the four year statutes of 

limitation were barred because the claimants were legally entitled to the information and 

could easily access it. If the claimants’ mother in Retz had inquired at the brokerage, she 
13

would have discovered the account was empty. Similarly, if the stockholders in Mason

had examined the corporate records, they would have discovered the fraudulent transfer. 

[¶30] In contrast to Mason and Retz, the instruction in the present case did not ask the 

jury to determine whether Ms. Erdelyi in the exercise of due diligence “could have 

discovered” the fraud. Instead, the instruction asked the jury to determine whether Ms. 

Erdelyi knew or with the exercise of due diligence should have known about the fraud. 

As proof that Ms. Erdelyi should have known, the defense attempted to show that all she 

had to do was ask her mother about the terms of her trust or her relationship with Mr. 

Lott, or hire a lawyer. On cross-examination, defense counsel questioned Ms. Erdelyi as 

follows:

Q. . . . you didn’t call your mother and ask her what was going on, did 

you?

A. I’m not sure when I called my mother, but would I have called her 

about this, no.

Q. You wouldn’t call and say why is this guy being so nice to you, that 

didn’t occur to you in 2003? Yes or no?

A. In that context, I would not have called her.

Q. I mean your position in this case is, among other things, that . . . Mr. 

Lott concealed things about the trust and Mr. Lott’s relationship with your 

mother and whatnot for a period of better than half a decade; isn’t that true?

A. Yes.

Q. And you had the ability to call your mother up and ask her what was 

going on anytime from the time she left Laramie until she became 

incompetent; isn’t that true?

A. Yes.

Q. And you never asked if Mr. Lott, why he was being so nice, is she 

going to make him a beneficiary, you never asked any of those questions, 

did you?

A. No.

Q. And even in 2005 when she gave you a hug and whatnot you 

decided not to ask her, correct?

A. It was not a subject that was mutually agreeable to either one of us 

and I was not –

Q. You –

A. -- going to question her.

Q. Okay. But you could have, correct?

A. Yes.

[¶31] The defense also questioned Ms. Erdelyi as follows: 
14

Q. Why don’t you – you could have hired a lawyer at the 

point, correct?

A. Yes.

. . . .

Q. And you could have hired a lawyer on the basis of how 

come these people won’t tell me anything, correct?

A. I would assume so, yes.

Q. Yeah, but you didn’t, correct?

A. Correct.

Q. And I mean if you really wanted to find out what was 

going on and if you were going to use due diligence to find 

out what was going on you would have hired a lawyer or at 

least talked to a lawyer and told him about this scenario, 

correct?

A. I could have, yes.

Defense counsel returned to the issue later when he asked Ms. Erdelyi whether in 

hindsight the reasonable thing to have done would have been to hire a lawyer. Ms. 

Erdelyi responded, “In hindsight, yes. At the time, no.” 

[¶32] The problem with the defense theory that Ms. Erdelyi could have discovered the 

fraud by talking with Ms. Sprankle or hiring a lawyer is that it assumes such action would 

have disclosed the fraud. No evidence was presented to support that assumption. With 

regard to asking her mother, the evidence suggests Ms. Sprankle likely would not have 

discussed her relationship with Mr. Lott or her estate plans with Ms. Erdelyi. As for 

seeking legal advice, one can only speculate as to what the outcome might have been. 

While Mr. Lott’s fraud might have been discovered, a lawyer might also have advised 

Ms. Erdelyi that she had no recourse until she was able to obtain a copy of the trust upon 

her mother’s death. 

[¶33] In any event, unlike the circumstances in Mason and Retz, no evidence was 

presented to show that if Ms. Erdelyi had asked her mother or if she had gone to a lawyer 

she could have discovered the fraud. Likewise, unlike Mason and Retz, no evidence was 

presented to show that Ms. Erdelyi was legally entitled to and had access to information 

about the trust or Mr. Lott’s relationship with her mother. In fact, the evidence presented 

showed that information concerning Ms. Sprankle’s trust and relationship with Mr. Lott 

was actively concealed from Ms. Erdelyi.

2

 

 

2

Some courts have held that the statute of limitations governing actions for fraud is tolled if the 

perpetrator takes affirmative action to conceal the fraud, and the statute only begins to run when the fraud 

is discovered; that is, when damage is sustained and objectively capable of ascertainment. See generally

54 CJS Limitation of Actions § 276. Other courts have held that when a fiduciary or confidential 

relationship exists between the parties, failure to exercise due diligence to discover the fraud does not toll 
15

[¶34] As support for the jury’s finding that Ms. Erdelyi “knew or should have known” 

about the fraud, Mr. Lott points to Ms. Erdelyi’s testimony that “you would have to be 

comatose” not to have been suspicious of Mr. Lott’s relationship with Ms. Sprankle by 

the mid-2000s. Mr. Lott also points to Ms. Erdelyi’s letter of 2003 in which she asked 

Mr. Lott whether he held any powers of attorney for her mother. Additionally, he 

stresses Ms. Erdelyi’s poor relationship with her mother, her failure to ask her mother 

about her estate plan and a letter she received from UBS/Paine Webber in 2003 refusing 

to provide information to her concerning the accounts or trust.3 Under Mason and Retz, 

this evidence does not support a finding that with the exercise of due diligence Ms. 

Erdelyi could have discovered the fraud. While there is no question Ms. Erdelyi was 

suspicious and concerned about the relationship, she testified that it did not occur to her 

that her mother had made Mr. Lott, rather than her daughter, her primary beneficiary until 

close to the time of her mother’s death. More importantly, there was no showing 

information that would have revealed the fraud was accessible to Ms. Erdelyi prior to her 

mother’s death or that she was legally entitled to it. To the contrary, her efforts to obtain 

information were met with active concealment by Mr. Lott and others. Under these 

circumstances, the evidence did not support dismissal of the case on the basis of the 

statute of limitations. 

[¶35] The statute of limitations issue is dispositive of this appeal. On remand for a new 

trial, however, the issues relating to the jury instructions and verdict form are likely to 

rise again. We, therefore, address Ms. Erdelyi’s claim that it was error to instruct the jury 

concerning negligence and comparative fault, and place her name on the verdict form for 

the jury to allocate her percentage of fault. See Glenn v. Union Pacific R. Co., 2011 WY 

126, ¶ 30, 262 P.3d 177, 191 (Wyo. 2011), in which the plaintiff’s first issue was 

dispositive of the appeal, but we addressed the second issue because it was likely to rise 

again in the new trial. 

2. Jury Instructions on Negligence and Comparative Fault

[¶36] Ms. Erdelyi contends it was error to give the negligence and comparative fault 

instructions because it suggested that the act or omission of a victim of fraud could be the 

proximate cause of someone else’s fraudulent act and the victim could be at fault for the 

fraud. She also asserts the instructions confused the jury by mixing the concepts of 

negligence and fraud, which have different standards of proof. She further contends the 

instructions confused the jury by improperly introducing the concept of negligence when 

there was no claim or counter-claim for negligence in this constructive fraud case. 

 

the statute of limitations. Id., § 277. Ms. Erdelyi did not raise either of these issues in the district court 

and so we do not address them.

3 The letter, although apparently introduced into evidence at trial, is not part of the record on appeal. We, 

therefore, do not consider it. 
16

[¶37] Wyoming’s comparative fault statute provides in relevant part as follows:

§ 1-1-109. Comparative fault.

(a) As used in this section:

(i) “Actor” means a person or other entity, including 

the claimant, whose fault is determined to be a proximate 

cause of the death, injury or damage, whether or not the actor 

is a party to the litigation;

(ii) “Claimant” means a natural person, including the 

personal representative of a deceased person, or any legal 

entity, including corporations, limited liability companies, 

partnerships or unincorporated associations, and includes a 

third party plaintiff and a counterclaiming defendant;

(iii) “Defendant” means a party to the litigation against 

whom a claim for damages is asserted, and includes third 

party defendants. Where there is a counterclaim, the claimant 

against whom the counterclaim is asserted is also a defendant;

(iv) “Fault” includes acts or omissions, determined to 

be a proximate cause of death or injury to person or property, 

that are in any measure negligent, or that subject an actor to 

strict tort or strict products liability, and includes breach of 

warranty, assumption of risk and misuse or alteration of a 

product;

(v) “Injury to person or property,” in addition to bodily 

injury, includes, without limitation, loss of enjoyment of life, 

emotional distress, pain and suffering, disfigurement, physical 

or mental disability, loss of earnings or income, damage to 

reputation, loss of consortium, loss of profits and all other 

such claims and causes of action arising out of the fault of an 

actor;

[¶38] In Board of County Comm’rs of Teton Co. v. Bassett, 8 P.3d 1079, 1084 (Wyo. 

2000), a negligence action, this Court held that Wyo. Stat. Ann. § 1-1-109 requires that 

“all species of culpable conduct” be compared in assessing fault. There, the plaintiffs 

were injured when a suspect fleeing from law enforcement ran a roadblock and crashed 

into their vehicle at a high rate of speed. Prior to the crash, law enforcement had waved 

the plaintiffs through the roadblock and onto the highway in front of the suspect without 

warning them that the suspect was speeding down the highway toward them. The 

plaintiffs brought an action against the officers alleging they were negligent for failing to 

warn them about the approaching vehicle. The issue was whether the suspect, a non-
17

party actor, should be included on the verdict form so that his willful conduct could be 

compared with the officers’ negligence. 

[¶39] In holding that the suspect must be included on the verdict form, the Court 

concluded that by using the word “fault” rather than negligence in § 1-1-109 and 

including strict and products liability, the legislature intended to broaden the scope of the 

statute to include willful conduct. The Court further concluded that the adoption of § 1-

1-109 and the elimination of joint and several liability showed the legislature’s intent to 

limit a tortfeasor’s exposure to liability for the misconduct of other tortfeasors. The 

Court said:

To leave an actor such as [the fleeing suspect] out of the 

apportionment calculation exposes the remaining [defendants] 

to the possibility that they will be held to answer for his 

misconduct. * * * The legislature has clearly opted to relieve 

joint tortfeasors of liability beyond that for which they bear 

proportional fault . . . .

Bassett, 8 P.3d at 1084. Thus, under Bassett, a joint tortfeasor who acts willfully is 

properly included as an actor on a verdict form in a negligence case so that the jury can 

compare the defendant’s negligence and the non-party actor’s willful conduct and 

apportion liability.

[¶40] Subsequently, in Cathcart v. State Farm Mut. Auto Ins. Co., 2005 WY 154, ¶ 36, 

123 P.3d 579, 592 (Wyo. 2005), this Court declined to decide whether comparative fault 

was a proper matter for a jury instruction in a bad faith case because the issue was not 

squarely raised or adequately argued. That the Court declined to answer the question of 

whether § 1-1-109 encompasses bad faith suggests Bassett did not settle the issue and 

perhaps should not be read literally to include “all species of culpable conduct.” More 

recently, in Strong Constr., Inc. v. City of Torrington, 2011 WY 82, ¶ 126, 255 P.3d 903, 

915 (Wyo. 2011), the Court held comparative fault was not applicable in a breach of 

contract action because the comparative fault statute applies to tort claims where a party 

is seeking personal injury or property damages caused by the fault of another, and breach 

of contract is not a tort claim. Cathcart left open the question whether Bassett applies in 

the context of a bad faith case; Strong squarely held that § 1-1-109 does not apply in 

breach of contract cases. Thus, Bassett’s holding that § 1-1-109 requires “all species of 

culpable conduct” to be compared is not as broad as that decision might suggest. 

[¶41] The holding in Bassett must be placed in context. There, the issue was whether, 

under the comparative fault statute, the culpable conduct of a non-party tortfeasor must 

be compared with that of the defendants in a negligence case. Bassett did not address 

whether, in an intentional tort case, the negligence of a non-actor should be compared 

with the willful conduct of the defendant. More significantly for purposes of the present 
18

case, Bassett did not address whether in an intentional tort case any negligence on the 

part of the claimant should be compared with the willful act of the defendant. Confined 

to its facts, Bassett addressed only whether a non-party actor whose willful acts were a 

proximate cause of the claimants’ injuries should be compared with the defendants’ 

negligence to apportion fault and liability. In that context, it makes sense to include the 

non-party actor because it ensures the negligent defendants are not held liable for the 

intentional acts of another. In that context, it seems clear the legislature sought to ensure 

negligent defendants would not be held accountable for the intentional acts of another. 

We are not persuaded the legislature intended negligence on the part of a fraud victim to 

be compared with the intentional acts of the perpetrator so as to reduce the perpetrator’s 

liability based upon any percentage of fault apportioned to the victim.

[¶42] Some courts have declined to apply comparative fault principles when to do so 

would be inconsistent with public policy. Otero v. Jordan Rest. Enters, 922 P.2d 569, 

574 (N.M. 1996), citing Reichert v. Atler, 875 P.2d 379, 381 (N.M. 1994). Concluding it 

would be against public policy to allow the perpetrator of fraud to profit from his 

conduct, these courts have held comparative fault inapplicable in fraud cases. Id. See

also Tratchel v. Essex Group, Inc., 452 N.W.2d 171, 180-81 (Iowa 1990) (holding that 

instruction on comparative fault of plaintiff was properly denied to defendant guilty of 

fraud); Cruise v. Graham, 622 So.2d 37, 40 (Fla. Ct. App. 1993) (holding that denial of 

comparative fault instructions in fraud action was not error); cf. Neff v. Bud Lewis Co., 89 

N.M. 145, 149, 548 P.2d 107, 111 (Ct. App.) (holding contributory negligence was not a 

defense to a claim for negligent misrepresentation by building owner against real estate 

broker and salesmen having fiduciary relationship to plaintiff), cert. denied, 89 N.M. 321, 

551 P.2d 1368 (1976); Estate of Braswell v. People’s Credit Union, 602 A.2d 510, 515 

(R.I. 1992) (holding comparative negligence principles inapplicable in action for 

negligent misrepresentation against credit union).

[¶43] Unlike this Court’s holding in Bassett, some of these courts have held that 

comparative fault does not apply in any intentional tort case. Despite this difference, we 

find their reasoning persuasive in the context of a fraud claim. One who has committed 

fraud should not be allowed to escape liability for his wrongful conduct by shifting the 

responsibility to the victim. Such a result is contrary to public policy. Absent clear 

statutory language showing the legislature intended the negligence of a fraud victim to be 

compared to the conduct of the perpetrator, thereby potentially reducing the latter’s 

liability for his intentionally wrongful acts, we decline to hold that § 1-1-109 is a proper 

matter for a jury instruction in a fraud case. The district court erred in instructing on 

comparative fault and negligence so as to allow the jury to compare Mr. Lott’s willful act 

with any negligence of Ms. Erdelyi in this constructive fraud case. The district court 

further erred in providing a verdict form requiring the jury to compare Mr. Lott’s 

constructive fraud and any negligence of Ms. Erdelyi.
19

[¶44] In reaching this result, we note also that the legislature has provided a mechanism 

for relieving the perpetrator of fraud from liability for his conduct when a jury finds that 

the victim did not use due diligence to discover the fraud. As noted above in paragraph

26, the statute of limitations for fraud actions is triggered when a claimant knows or 

could have discovered the fraud in the exercise of due diligence. Mason, 490 P.2d at 

1064. If a jury finds that a claimant knew or could have discovered the fraud more than 

four years before filing the action, the perpetrator of the fraud is relieved from any 

liability. Thus, any “negligence” of the claimant in not discovering and timely pursuing a 

fraud claim is addressed in § 1-3-106. There is no need for a separate instruction 

allowing a jury to compare a claimant’s negligence or comparative fault with the willful 

act of the perpetrator in a fraud case.

[¶45] On remand, the jury should not be instructed on negligence as to Ms. Erdelyi. The 

jury also should not be instructed on comparative fault as between Ms. Erdelyi and Mr. 

Lott. 

[¶46] Reversed and remanded for a new trial.