Summary 2008 WY 126

Summary of Decision issued October 13, 2008

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

Case Name: Gose v. City of Douglas, Wyoming

Citation: 2008 WY 126

Docket Number: S-07-0242

Appeal from the District Court of Converse County, Honorable John C. Brooks, Judge

Representing Appellant (Plaintiffs): Richard V. Gose and Celeste M. Gose, Pro Se

Representing Appellee (Defendant): Rick L. Koehmstedt and Peter J. Timbers of Schwartz, Bon, Walker & Studer, Casper, Wyoming

Facts: The Appellee did not approve a subdivision proposed by Appellants. The Appellants filed a complaint seeking money damages from the City, based on a claim of inverse condemnation. The district court dismissed the damages claim, with prejudice, because, among other reasons, the Appellant’s complaint did not allege that their notice of governmental claim complied with the certification and signature requirements contained in Wyo. Const. art. 16 § 7. The district court also found that the Appellants’ claims were untimely in that the notice of claim was not filed within two (2) years of the date of the alleged act, error or omission. The district court additionally denied Appellants’ claim for mandamus relief because the City had no clear legal obligation to approve the subdivision.

Issues: Whether Appellants’ complaint and notice of claim adequately complied with the Constitution’s signature requirements. Whether the 2 year limitations of action period began to run when the city denied the Appellants’ subdivision application. Whether the district court erred in denying mandamus relief. Whether the district court has the legal ability to elect which facts to use to decide a motion of dismissal when Appellants had not waived their rights to a jury trial.

Holdings: The timely filing of a proper claim with the government requires that the complaint allege compliance with the signature and certification requirements of the state constitution as well as the statutory requirements. It is incumbent upon a plaintiff to allege in his or her complaint not only compliance with statutory filing requirements, but compliance with constitutional signature and certification requirements. In the present action, the Appellants’ complaint includes no reference to the constitutional requirements, nor does it include an indication that the constitutional requirements were met. Moreover, the notice of claim itself does not include any reference to compliance with the constitutional requirements. Thus, Appellants’ complaint failed to meet the requirements. Because the Appellants’ complaint did not allege compliance with the constitutional signature requirements, the district court never acquired jurisdiction over the inverse condemnation claim. Thus, the district court did not have jurisdiction to determine whether the Appellants’ notice of claim was timely. Once the district court determined the complaint did not meet the requirements, its jurisdiction was at an end. It should not have addressed whether the notice of claim was timely. According to the Appellants’ complaint, their notice of claim was dated March 8, 2007. The Appellants filed their complaint on April 20, 2007, well within the one-year statute of limitations found in Wyo. Stat. 1-39-114 (2007). The dismissal order was entered on September 17, 2007. Thus, at the time the case was dismissed, the Appellants remained within the one year statute of limitations. Under these circumstances, we find that the dismissal should have been without prejudice. The action will be remanded for entry of an order dismissing, without prejudice, the inverse condemnation claim. The dismissal order should establish for the Appellants a reasonable time within which to file a new complaint.
The function of mandamus is to command the performance of a ministerial duty that is plainly defined and required by law. Mandamus will not lie unless the duty itself is absolute and incontrovertible, or clear, certain, and indisputable. If the lower tribunal has the right to exercise discretion regarding an issue, mandamus is not an appropriate remedy. Thus, the question in the present action is whether the City had an absolute or incontrovertible duty to approve the Appellants’ proposed subdivision. It is clear that the Appellee had the authority to approve or disapprove the proposed subdivision because that subdivision is within one mile of city limits. Such approval is contemplated by Wyo. Stat. 34-12-103 (2007). The next question is whether the City retained discretion in this regard. The right and duty of the city to approve a plat necessarily carries with it the right to set reasonable and just prerequisites and requirements for approval of the plat, and in particular in the area of bringing the plat into conformity with other areas with respect to lots, blocks, streets, and the like. Thus, it is clear that the Appellee maintains discretion to approve, or disapprove, the proposed subdivision. The Appellants do not point to any law establishing that the Appellee had a “ministerial duty that is plainly defined and required by law” to approve the subdivision. Instead, the Appellants attack the Appellee’s exercise of its discretion and the reasons used to support its exercise of discretion. However, the remedy of mandamus is not so broad as to encompass such matters. While such attacks may be proper for a declaratory judgment action, those attacks are beyond the scope of mandamus. The dispositive issue here is that the Appellee maintains discretion to approve or disapprove the subdivision, and the Appellants have not established otherwise. Thus, they are not entitled to the limited remedy of mandamus. The district court’s denial of mandamus relief is affirmed.
A motion to dismiss is based upon legal grounds, which is the exclusive province of the Court as opposed to a jury. Moreover, the Appellants do not identify precisely what factual issues were necessary for determination of the legal issues addressed in this opinion.

Affirmed in part, reversed in part and remanded.

J. Golden delivered the opinion.

Link: http://tinyurl.com/44txnp

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