Wednesday, April 11, 2012

Summary 2012 WY 55

Summary of Decision April 11, 2012

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Docket Number: S-11-0213


Appeal from the District Court of Sheridan County, Honorable Dan R. Price II, Judge

Representing Petitioner:

Anthony T. Wendtland and Debra J. Wendtland of Wendtland & Wendtland, LLP, Sheridan, Wyoming. Argument by Ms. Wendtland.

Representing Respondents Merlin and Lori Zowada:

Harlan W. Rasmussen of Attorneys at Law of Wyoming, P.C., Sheridan, Wyoming.

Representing Respondent Sheridan County Board of County Commissioners:

No Appearance.

Date of Decision: April 11, 2012

Facts: This case, concerning a petition for the establishment of a private road filed by the Zowadas, came before the Court for a second time, on a petition for writ of review. In Mullinax Concrete Service Co., Inc., v. Zowada (Mullinax I), 2010 WY 146, 243 P.3d 181 (Wyo. 2010), the Court remanded the case to the district court for further remand to the Sheridan County Board of County Commissioners (the Commission) to make adequate findings of fact on specific issues. While the case was pending before this Court, the legislature amended Wyo. Stat. Ann. § 24-9-101, which governs the procedure used when petitioning for the establishment of a private road. On remand, the Commission and its hearing officer chose to apply the statute as amended in 2008 and 2009, although the case had originally proceeded under the statute as it existed in 2005. Mullinax petitioned the Court to determine whether the amended statute applies or whether the statute applies as it existed in 2005.

Issues: Whether, on remand to the Commission, Wyo. Stat. Ann. § 24-9-101 should be applied as it existed in 2005 or as it currently exists with the 2008 and 2009 amendments.

Holdings: The Court found that Wyo. Stat. Ann. § 24-9-101 as it existed in 2005 applies.

The hearing officer’s decision to apply Wyo. Stat. Ann. § 24-9-101 as it existed in 2009 was in error. While the amendments to the statute are procedural in nature, the Court found that the general rule against retroactive application of the amendment applies. The Commission did not have the authority to certify the matter to the district court. The Court reversed the district court’s order denying Mullinax’s petition for writ of review and remanded the case to the district court to order the Commission to comply with the remand requirements this Court ordered in Mullinax I, 2010 WY 146, ¶ 23, 243 P.3d at 192.

Justice Voigt delivered the opinion for the court.

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