Summary 2007 WY 11

Summary of Decision issued January 19, 2007

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Sundance Mountain Resort, Inc. & Cundy v. Union Telephone Co.

Citation: 2007 WY 11

Docket Number: 05-300

Appeal from the District Court of Crook County, the Honorable Gary P. Hartman, Judge

Representing Appellants (Defendants): Cecil A. Cundy of Cundy Law Office, Sundance, Wyoming.

Representing Appellee (Plaintiff): Paul J. Drew of Drew Law Office, PC, Gillette, Wyoming.

Issue: Whether or not the district court properly exercised jurisdiction by ordering Appellants/Defendants to appear and show cause in Weston County in contempt proceedings affecting an estate in real property in Crook County where Appellants/Defendants resided in Crook County, Wyoming. Whether or not the injunction sought to be enforced exceeded the rights granted Appellee in its Communication Site Lease.
Facts/Discussion: This appeal arises from facts previously considered in Cundy v. Range Tel. Coop., Inc. and Union Telephone Co. where the Court affirmed a district court order enjoining Sundance and Mr. Cundy from interfering with Union’s use of its leasehold on Sundance Mountain and access to it across lands belonging to Sundance. Appellants were held in contempt of court for violating the district court order enjoining them from interfering with Union Telephone Company’s (Union) access to its leasehold. Appellants appeal from the contempt order. Determinations concerning venue are within the district court’s discretion and the Court reviews the denial of a motion for change of venue only for abuse of discretion. The power to summarily punish for contempt is likewise vested in the district court. The Court will not overturn a district court contempt order absent an abuse of discretion.
Venue: Despite Appellant’s continued use of the word “jurisdiction” in his re-statement of the issues, the parties appeared to be in agreement that the issue did not concern the district court’s jurisdiction to hear and decide Union’s motion; rather, the issue was one of venue. Union brought the action in the county in which its leasehold was situated and all papers concerning the action were filed there and all proceedings were held in the proper county until the show cause hearing. Upon request of counsel, the district court vacated a scheduled telephone hearing and scheduled a hearing requiring personal attendance of counsel. The district court set the hearing in Weston County because no courtroom was available in Crook County. Venue normally is founded upon convenience to the parties. Appellants did not argue the Weston County forum was inconvenient. In the district court and the Court Appellants argued the district court violated the venue statute by convening the hearing in a venue other than Crook County. The Court found the district court’s action to be a reasonable decision based upon proper considerations of convenience and the allocation of judicial resources.
The Injunction: After careful review of the record on appeal, it appeared Appellants failed to raise the argument the injunction exceeded the rights granted in the lease in the district court. Because no transcript of the contempt hearing appears in the record, it was not possible for the Court to determine whether the argument was presented orally during the hearing. The Court will not consider arguments made for the first time on appeal.
Holding: The Court found the district court’s action setting the show cause hearing in an adjoining county with an available courtroom to be a reasonable decision based upon proper considerations of convenience and the allocation of judicial resources. The Court affirmed the district court decision regarding the injunction because the record designated by the parties provided no indication Appellants presented the argument in district court that the injunction went beyond the scope of the lease. Appellants had several opportunities to present the claim, so the Court declined to address the argument.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/3cl7gl .