Summary 2011 WY 48

Summary of Decision March 18, 2011

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Case Name: Gess v. Flores

Citation: 2011 WY 48

Docket Number: S-10-0040

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461831

W.R.A.P. 11 Certification from the District Court of Laramie County, The Honorable Michael K. Davis, Judge

Representing Appellant (Appellant): T. Thomas Metier and Patrick J. DiBenedetto of Metier Law Firm, LLC, Fort Collins, Colorado

Representing Appellee (Appellees): Kate M. Fox and Amanda Ferguson of Davis & Cannon, LLP, Cheyenne, Wyoming

Date of Decision: March 18, 2011

Facts: Appellant timely filed a governmental claim with the City of Cheyenne. Approximately 10 months later, Appellant filed a complaint in the First Judicial District. The Complaint did not allege the date of the filing of the claim as required under the WGCA, and did not allege compliance with the constitutional signature and certification requirements of the WGCA, as required by Wyoming case precedent. Just after the one-year period to file a complaint under the WGCA, Appellees filed a Motion to Dismiss for Lack of Subject Matter Jurisdiction pursuant to Wyoming Rule of Civil Procedure (12)(b)(1). In response, Appellant filed a Motion to Amend the Complaint Pursuant to Wyoming Rule of Civil Procedure 15(a). The Court would allow Appellant to amend his Complaint if it had the jurisdiction to do so.

Issues: 1) Whether, in a cause of action arising under the Wyoming Governmental Claims Act (WGCA), Wyoming Statute §§ 1-39-101 et seq. and the Wyoming Constitution Article 16, § 7, the district courts have the discretion to permit Appellants to amend their complaints, after the expiration of the statute of limitations, pursuant to Wyoming Rule of Civil Procedure (W.R.C.P.) 15(a), to cure jurisdictional pleading deficiencies and to permit said amendment to relate back to the date the original complaint was filed pursuant to W.R.C.P 15(c)(2); and 2) Whether Wyoming’s “savings statute,” Wyoming Statute § 1-3-118, permits Appellants whose complaints filed under the Wyoming Governmental Claims Act (WGCA), Wyoming Statute §§ 1-39-101 et seg. are dismissed by the district court for failing to adequately plead compliance with the WGCA, after the expiration of the statute of limitations, to re-file the action within one year of dismissal.

Holdings: The Court’s recent decisions in Brown v. City of Casper, et al., 2011 WY 35, __ P.3d __ (Wyo. 2011), and Madsen v. Board of Trustees of Memorial Hospital of Sweetwater County, Wyoming, 2011 WY 36, __ P.3d __ (Wyo. 2011), are controlling authority to answer the first certified question in the affirmative and, consequently, the Court need not answer the second certified question in the case. The Court remanded the case to the district court for further proceedings consistent with this opinion.

J. Golden delivered the opinion for the court.

J. Voigt delivered a dissenting opinion.

The dissenting opinion disagrees with the Court’s decision in Brown v. City of Casper, which should not, therefore, form the basis for an opinion in the case. Furthermore, the Dissent argues that Wyo. Stat. Ann. § 1-39-114 (LexisNexis 2009) is a jurisdictional statute of limitations that is part of the right created by the Wyoming Governmental Claims Act. And finally, that the savings statute should not and does not apply to actions filed under the Wyoming Governmental Claims Act. The Dissent would answer “no” to both certified questions.