Summary 2007 WY 178
Summary of Decision issued November 6, 2007
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Case Name: Cook v. City of
Citation: 2007 WY 178
Docket Number: S-07-0025
Appeal from the
Representing Appellant (Plaintiff): H.W. Rasmussen and
Representing Appellee (Respondent): Clint A. Langer of Davis & Cannon,
Issues: Whether the court abused its discretion as a matter of law by concluding it did not have discretion to allow Christopher C. Cook’s notice of appeal to be amended. Whether the district court erred by considering the motion to dismiss filed by Mike Card, the City of Sheridan Chief of Police, because Mr. Card is not and cannot be a party. Whether the City of
Facts/Discussion: After the Sheridan Police Department Civil Service Commission (Commission) entered an order dismissing him from service with the Sheridan Police Department (Department), Cook filed a notice of appeal in the district court. Chief of Police, Mike Card, on behalf of the Department, filed a motion to dismiss the appeal on the ground that Cook failed to comply with the W.R.A.P in that he filed a notice of appeal rather than a petition for review. The district court granted the motion.
Standard of Review: When reviewing a district court order granting a motion to dismiss the Court accepts as true the facts alleged in the complaint and view them more favorably to the party opposing the dismissal. The Court reviews a district court’s decision to dismiss an appeal for failure to comply with the rules under an abuse of discretion standard. The ultimate issue is whether the court could reasonably conclude as it did. When reviewing claims that a district court committed an error of law, the Court does not apply the abuse of discretion standard because a court does not have discretion with respect to such error.
Propriety of Dismissal: In McElreath, the Court considered the question of whether a district court properly dismissed an appeal from a final agency ruling denying a claim for worker’s compensation benefits. The Court on review concluded the district court did not abuse its discretion. Unlike McElreath, here the district court concluded it had no authority to allow Appellant to amend his notice of appeal and so had no other choice but to dismiss. The Court stated in the instant case, that was contrary to W.R.A.P. 1.03 which expressly gives appellate courts discretion to take “such action as [they deem] appropriate” when a party fails to comply with the rules. In the case In re General Adjudication of Water Rights and Kittles v. Rocky Mountain Recovery, Inc. the Court treated a notice of appeal as a petition for review. They stated they saw no reason why a district court should not have similar discretion to treat a notice of appeal as a petition for review.
Indispensable and Proper Parties: Appellant’s claims were not presented to the district court therefore the Court did not consider the issues. Neither did Appellant present argument that warranted an exception.
Holding: The Court reversed the district court’s order dismissing the notice of appeal on the ground that the district court erred as a matter of law in concluding its discretion was “very limited” and it’s only option was dismissal. The Court remanded to the district court for it to exercise its discretion under W.R.A.P. 1.03 by taking “such action as [it] deems appropriate.”
Reversed.
J. Kite delivered the opinion.
C.J.Voigt dissented joined by J. Golden: W.R.A.P. 12.01 and 12.03 clearly require the review of administrative agency decisions to be “instituted by filing a petition for review.” W.R.A.P. 12.04(a) requires the petition to be filed within 30 days after service of the final agency decision. If that requirement is not met, it can be overcome under W.R.A.P. 12.04(b) by a showing of excusable neglect, coupled with a request for a filing extension not to exceed an additional 30 days.
These Justices would not hold that the discretionary language of the second sentence of W.R.A.P. 1.03 went so far as to negate the specific requirement of W.R.A.P. 12.04(b) that excusable neglect be shown in order to enlarge the time for filing a petition for review. They also stated that McElreath was poor precedent because it relied upon Taffner in which the Court mistakenly applied present W.R.A.P. 9.04 in ruling upon an appellate error. McElreath and Taffner were inconsistent in their treatment of prejudice in the review of appellate error.
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