Tuesday, July 24, 2007

Summary 2007 WY 115

Summary of Decision issued July 24, 2007

[SPECIAL NOTE: This opinion uses "Universal Citation" and was given an "official" citation when issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will note that all of the paragraphs are numbered. When you need to provide a pinpoint citation, the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion should include the reporter page number. If you need assistance, 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: Nickle v. Board of County Commissioners, Platte County, Wyoming

Citation: 2007 WY 115

Docket Number: 06-128

Appeal from the District Court of Platte County, the Honorable Keith G. Kautz, Judge

Representing Appellant (Defendant): Frank J. Jones, Wheatland, Wyoming.

Representing Appellee (Plaintiff): Eric Alden, Wheatland, Wyoming.

Issues: Whether the County has the right to recover the costs expended for abatement of a nuisance. Whether the County is entitled to recover against the supersedeas bond in the instant case for its damages incurred by the delay caused by filing of that appeal.

Facts/Discussion: Nickle challenged the district court’s order that had the effect of applying a portion of a supersedeas bond that Nickle posted in an earlier appeal, which arose out of the same circumstances as the instant appeal, so as to recompense Platte county Board of County Commissioners (the County) for damages it suffered as a result of that appeal which was dismissed for want of prosecution.
To the extent the case involves the district court’s construction of W.R.A.P. 4.02, the question of law is reviewed de novo. However, in its totality the question presented is a mixed question of law and fact. Whether the rule in question contemplates an award for the sorts of damages at issue is a question of law but the district court must also take evidence on which to base any award of damages that may be allowed by the rule. The findings are considered presumptively correct and the appellate court may examine all of the properly admissible evidence in the record. Findings of fact will not be set aside unless clearly erroneous. It is appellant’s burden to bring the Court a complete record. In the absence of anything to refute them, the Court will sustain the trial court’s findings and assume the evidence presented was sufficient to support those findings.

Holding: The record in the case was woefully incomplete. From the materials forwarded, the Court could only conclude that the district court did not err as a matter of law to the extent that it applied W.R.A.P. 4.02. So far as the facts are concerned, applying the rule above, the Court presumed that a complete record would sustain the district court’s fact findings.
Nickel purports to appeal from two orders issued in 2005, as well as the order entered on April 19, 2006. He did appeal one of the earlier orders, but that appeal was dismissed. The Court did not dispositively discuss whether the earlier orders were subsumed into the 2006 order because the Court did not have a complete enough record to perform any sort of meaningful appellate review.


J. Hill delivered the decision.

Link: http://tinyurl.com/2vbzq2 .

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