Summary 2009 WY 86

Summary of Decision issued July 6, 2009

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

Case Name: McCann v. City of Cody, Wyoming

Citation: 2009 WY 86

Docket Number: S-08-0134

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

Representing McCann: John R. Hursh of Central Wyoming Law Associates PC, Riverton, Wyoming.

Representing Cody, WY: Tracy J. Copenhaver and Scott E. Kolpitcke of Copenhaver, Kath, Kitchen & Kolpitcke, LLC, Powell, Wyoming.

Facts/Discussion: McCann sought review of the district court’s order granting summary judgment in favor of the City. McCann was injured in car accident which she claimed was caused by the negligence of the City and its contractor Harris Trucking and Construction (Harris).
The rule that timely filing of a proper claim with the governmental entity is a condition precedent to suit is a judicially created rule. In Beaulieu II, the Court held that the complaint must allege compliance with the signature and certification requirements of the state constitution without which the district court does not obtain subject matter jurisdiction. The Court has repeatedly upheld the stringency of the rule over the intervening years in decisions including Gose v. City of Douglas, Coffinberry v. Board of County Commissioners, and Cantrell v. Sweetwater County School Dist. No. 2.

Conclusion: McCann did not include in her complaint an averment that she had complied with the requirements as set out in Beaulieu II (2004). It was true both with respect to the statutory and the constitutional requirements. Therefore, the district court did not acquire subject matter jurisdiction of the complaint and therefore, the Court did not acquire either.

Affirmed.

J. Hill delivered the decision.

J. Burke dissenting; joined by J. Kite: J. Burke dissented for three reasons: the allegations of the complaint, when reviewed in the light most favorable to McCann, sufficiently alleged the prerequisites for the district court’s subject matter jurisdiction. If the complaint was not sufficient, the plaintiff should be allowed to amend the complaint. Third, if the judicially created rules for pleading a governmental claim lead to the conclusion that the complaint is legally insufficient and plaintiff is not permitted to amend, the rules should be abolished as they serve no useful purpose and create unwarranted obstacles to the determination of governmental claims on their merits. As this case indicated, a dilatory defendant benefits from failing to raise the jurisdictional challenge early in the proceedings. By contrast, the consequences of a pleading defect fall solely and harshly on the plaintiff. Plaintiffs lose their rights to have their statutorily authorized governmental claims determined on the merits simply because the complaint did not contain the jurisdiction allegation. The judicially created pleading requirements are at odds with the intended purpose of the Wyoming Governmental Claims Act and the governing principles of the Wyoming Rules of Civil Procedure.

Link: http://tinyurl.com/kw6pcv .

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