Summary 2013 WY 33

Summary of Decision March 19, 2013


Justice Hill delivered the opinion for the Court. Affirmed.

Case Name: STEVEN A. DELOGE v. SCOTT HOMAR, LARAMIE DISTRICT ATTORNEY and CHEYENNE POLICE DEPARTMENT

Docket Number: S-12-0130

URL: http://www.courts.state.wy.us/Opinions.aspx

Appeal from the District Court of Laramie County, Honorable Michael Davis, Judge.

Representing Appellant: Steve A. DeLoge, Pro se.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; John D. Rossetti, Deputy Attorney General; and Patricia L. Bach, Senior Assistant Attorney General for Laramie County District Attorney’s Office; and J. Mark Stewart of Davis and Cannon, LLP, Cheyenne, WY, for Cheyenne Police Department.

Date of Decision: March 19, 2013

Facts: In 2011, Steven DeLoge filed a 42 U.S.C. § 1983 complaint for damages arising out of property confiscated from his home in 1999 when he was arrested and convicted on six counts of sexual assault. The district court dismissed Mr. DeLoge’s complaint as time barred, and in his fifth appearance before this Court, Mr. DeLoge appealed.

Issues: Mr. DeLoge appears pro se and presents the following issues on appeal:

Issue I: Whether the district court correctly dismissed the 42 U.S.C. § 1983 complaint finding the claims barred by statute of limitations and failure to file governmental claims?

Issue II: Whether the district court opinion and order on motions to dismiss the 42 U.S.C. § 1983 complaint denied [DeLoge] full and fair adjudication based on the merits of the case?

Issue III: Whether the Supreme Court should consider barring [DeLoge] from further litigation relating to this matter.

Holdings: The district court properly dismissed Mr. DeLoge’s Section 1983 complaint for damages as time barred, and the district court’s decision is therefore affirmed, and the Court direct that Mr. DeLoge be prohibited from filing any further litigation relating to the subject matter of this case in any court of the State of Wyoming without first having obtained leave of this Court to do so.

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

Summary 2011 WY 127

Summary of Decision September 12, 2011


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Weber v. State

Citation: 2011 WY 127

Docket Number: S-10-0049

URL: http://www.blogger.com/goog_1809106292

Appeal from the District Court of Hot Springs County, Honorable Robert E. Skar, Judge

Representing Appellant (Plaintiff): Vance Countryman, Lander Wyoming; Cynthia Van Fleet of Wind River Law Center, Riverton, Wyoming.

Representing Appellee (Defendant): Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Thomas W. Rumpke, Senior Assistant Attorney General.

Date of Decision: September 12, 2011

Facts: Appellant was severely burned by hot mineral water when he lost consciousness in the steam room at the Star Plunge in Hot Springs State Park. He brought a personal injury action, naming C & W Enterprises, Inc., d/b/a the Star Plunge; a Star Plunge principal, Wolfgang Luehne; and the State of Wyoming as defendants. The State moved for summary judgment on a number of grounds, including that it was immune from suit pursuant to the Wyoming Governmental Claims Act. The district court determined the State was immune and granted summary judgment in its favor, but did not rule on any of the State’s other theories of non-liability. Appellant appealed.

Issues: Whether the district court erred by ruling that the State was immune under the circumstances presented here because its activities did not fall within the waiver for operation and maintenance of a public park under Wyo. Stat. 1-39-106 (2011).

Holdings: The Wyoming Governmental Claims Act is a “close-ended tort claims act,” meaning that the general rule in Wyoming, as stated in Wyo. Stat. 1-39-104(a), is the government is immune from liability. Therefore, unless a claim falls within one of the statutory exceptions to governmental immunity stated in Wyo. Stat. 1-39-105 through 1-39-112, it is barred. Appellant asserts his claims fall within the waiver of immunity for operation and maintenance of a public park found in § 1-39-106.

Wyo. Stat. Ann. 36-8-301 et seq. govern Hot Springs State Park. Wyo. Stat. Ann. 36-8-304, specifically authorizes the State to lease park lands and provide hot spring water to lessees. On its face, the legislation envisioned that the operation of Hot Springs State Park would include leasing property to private persons who would provide facilities for the public to use the hot mineral water. The statute also contemplates the State would regulate those buildings and improvements, approve building plans, specify materials, and provide hot mineral water to the facilities. Thus, when § 36-8-304 is read in conjunction with § 1-39-106, it is obvious that the legislature intended to waive immunity for the State’s alleged negligence in approving its lessee’s (the Star Plunge’s) design and construction of the Vapor Cave and in supplying the water.

Also, in addition to the typical regulatory inspections, the Concession and Revenue Manager for the State conducted annual inspections of the Star Plunge as part of the State’s role as owner and lessor of Hot Springs State Park property. The lease between the Star Plunge and the State specifically required the Star Plunge to comply with the rules and regulations adopted by the agency that oversees state parks and the agency that oversees health regulations. Under these circumstances, the State’s operation and maintenance of Hot Springs State Park included overseeing and/or inspecting its lessee’s property. Wyo. Stat. 1-39-106 waives immunity for public employee negligence in this role.

Although the State is not immune under the circumstances presented here, this does not mean to suggest that the State will ultimately bear liability for Appellant’s injuries. The concepts of immunity and liability seem to have been conflated in this case. Immunity prevents the State from being sued in the first place. Even though the State is not immune, there may be other legal principles which insulate it from liability. Issues such as whether the State had a duty to provide for the safety of patrons on the leased property, whether the duty had been delegated to the lessee, whether any duty was breached, and/or whether any breach was the proximate cause of Appellant’s injuries will have to be addressed to determine whether the State is liable in this case. Those questions were not decided by the district court and are not fully joined at this time. The sole issue that has been fully presented to this Court is the question of whether the legislature waived immunity under the Wyoming Governmental Claims Act and it is concluded that it did.

Reversed and remanded.

C.J. Kite delivered the opinion for the court.

J. Golden, joined by J. Hill, dissented. Wyo. Stat. 36-8-304 (2011) does not mandate the State lease land for concessionaires to open bath houses. The statute only provides that the State “may” lease land. Thus, while the statute establishes the general purpose of the Park to be the establishment of baths and bathhouses for the public to enjoy the healing properties of the mineral water, it does not mandate leasing property as a means of carrying out that objective. Thus, under the statutory mandate, the existence of Star Plunge is not necessary to the operation the Park. The State can, and does, fulfill the purposes of the Park without any particular concessionaire. Because the lease to Star Plunge, and specifically the existence of the Vapor Cave, is not essential to the functionality of the Park, governmental immunity has not been waived on the ground that ensuring the safety of the Vapor Cave is part of the operation of the Park.

The remaining question is whether ensuring the safety of the Vapor Cave is part of the maintenance of the Park. In other words, is ensuring the safety of the Vapor Cave a necessary action to keeping the Park in a state of good repair? By his argument, Appellant asks the Court to find that maintaining the Park includes maintaining facilities owned and operated by third parties on leased land within the Park. The definition should not be extended so far. The State’s maintenance of the Park extends only to land within the direct control of the State. Maintenance of the Park does not include maintaining land leased to third parties.

Appellant also attempts to impose liability on the State under landlord-tenant principles. He does not, however, point to any statutory provision in support of his argument that the State loses its immunity because it is the owner and lessor of the property on which Star Plunge sits. Presumably, then, Appellant must be arguing that being a landlord falls within the category of operating the Park. Leasing property is not required for the functioning of the Park so it is not an operational undertaking by the State.

In essence, Appellant’s argument that the State was negligent in the operation and maintenance of the Park by not ensuring the Vapor Cave was safe is an attempt to make the State the guarantor of people’s safety wherever they might be within the confines of Park land. The scope of the terms “operation” or “maintenance” should not be extended to that degree. Ensuring the safety of the Vapor Cave was not part of the operation or maintenance of the Park.

Summary 2011 WY 65

Summary of Decision April 13, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Larry Hoffman, as Personal Representative of the Estate of Gregory Bryan Pickett, III, Deceased, v. Brian Darnell, D.O., and Johnson County Hospital District.

Citation: 2011 WY 65

Docket Numbers: S-10-0165

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461971

Appeal from the District Court of Johnson County, the Honorable John G. Fenn, Judge.

Representing Appellant: Jeffrey J. Gonda and Amanda K. Roberts, Lonabaugh & Riggs, LLP, Sheridan, Wyoming.

Representing Appellee: Billie L.M. Addleman, Hirst Applegate, LLP; Scott P. Klosterman and Frank D. Neville, Williams, Porter, Day & Neville, PC, Casper, Wyoming.

Date of Decision: April 13, 2011

Facts: This case involved a claim arising under the Wyoming Governmental Claims Act (WGCA), Wyo. Stat. Ann. §§ 1-39-101 through -121. Appellant brought a wrongful death suit against Appellee. The district court dismissed the action with prejudice, finding that it lacked subject matter jurisdiction to allow Appellant to amend his complaint.

Issues: Whether the district court has discretion to allow leave to amend a complaint pursuant to W.R.C.P. 15(a) to allege compliance with the constitutional and statutory requirements for governmental claims with the specificity and, if so, whether the amendment relates back to the filing date of the original complaint. Whether this Court usurped the authority of the Wyoming Constitution and the Wyoming Legislature by creating the “special pleading” rules, such that it violates the separation of powers between the branches of government. Whether W.R.C.P. 12(h)(3) requires the district court to dismiss a complaint for lack of subject matter jurisdiction when it has notice the complaint is defective.

Holdings: The facts in this case are not in dispute. Appellant filed a notice of claim that complied with Wyo. Stat. Ann. § 1-39-113(b) and Article 16, § 7 of the Wyoming Constitution in all respects. In his complaint, however, Appellant did not allege the date on which the claim was presented to the Hospital and did not allege compliance with the constitutional signature and certification requirements for a notice of governmental claim. For this reason, the district court determined that it lacked subject matter jurisdiction to allow Appellant to amend the complaint.

The Court held that, in accordance with W.R.C.P. 15(c), the amendment of a complaint to allege compliance with the constitutional and statutory requirements for a governmental claim relates back to the date of the filing of the original complaint. The Court’s decisions in those cases are controlling on the question presented in Appellant’s first issue and require reversal of the district court’s order dismissing Appellant’s complaint and denying Appellant’s motion to amend the complaint. In light of this disposition, the Court did not address Appellant’s remaining issues.

The Court reversed and remanded to the district court for further proceedings consistent with this opinion.

Justice Voigt concurred with the result of the majority opinion out of respect for the doctrine of stare decisis, but believes the result is wrong.

Summary 2011 WY 36

Summary of Decision March 1, 2011

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Madsen v. Board of Trustees of Memorial Hospital of Sweetwater County, Wyoming

Citation: 2011 WY 36

Docket Number: S-10-0067

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461786

Original Proceeding Petition for Writ of Review District Court of Laramie County,
The Honorable Peter G. Arnold, Judge

Representing Appellant (Petitioner): Patrick J. Murphy of Williams, Porter, Day & Neville, Casper, Wyoming.

Representing Appellee (Respondent): Paul D. Schierer, M. Greg Weisz and Antonio E. Bendezu of Pence and MacMillan, Laramie, Wyoming.

Date of Decision: March 1, 2011

Facts: After the Respondent Hospital Board filed a complaint against him, Petitioner filed a counterclaim against the Hospital. On the Hospital’s motion, the district court dismissed the counterclaim finding that it did not adequately allege compliance with the signature and certification requirements for notices of claim contained in the Wyoming Constitution.

Issues: Whether the allegation contained in Petitioner’s counterclaim complies with the Wyoming Constitution, Art. 16, § 7 and Wyo. Stat. 1-39-113 ( 2009). Whether the itemization of damages contained in Petitioner’s notice of claim is sufficient under Art. 16, § 7 and § 1-39-113.

Holdings: To avoid dismissal of his counterclaim, it was incumbent upon Petitioner to show that he had satisfied the condition precedent to maintaining an action against the Hospital. That is, he had to show that within two years of the conduct giving rise to his claim he presented to the Hospital an itemized statement in writing certified under penalty of perjury. Petitioner met that showing by alleging in his complaint that he had presented a notice of claim pursuant to § 1-39-113 and Art. 16, § 7 of the Wyoming Constitution and by attaching the notice of claim he had presented to the Hospital which satisfied the requirements of those provisions.

In dismissing the counterclaim, the district court also concluded the notice of claim did not comply with Wyoming Constitution Art. 16, § 7 in that it did not contain a sufficiently detailed itemization of Petitioner’s losses. The purposes of requiring a full itemized statement were twofold: to give governmental entities the information they need to intelligently consider claims made against them and to provide taxpayers a means of assessing governmental expenditures. Petitioner’s notice of claim alleged total damages in the amount of $750,000 and separated that total into four categories: direct contractual damages, consequential damages, lost income and relocation. Petitioner’s itemization met the requirements of § 1-39-113(b)(iii). It constituted a “full itemized statement in writing” sufficient to apprise the Hospital as to the nature and extent of the damages claimed as contemplated by Art. 16, § 7.

The notice of claim presented in this case sufficiently alleged compliance with the statutory and constitutional requirements for notices of governmental claims. The district court had subject matter jurisdiction upon the filing of the counterclaim alleging a claim against a governmental entity. The itemization of damages in the notice of claim satisfied the constitutional requirements.

Reversed and remanded.

J. Kite delivered the opinion for the court.

J. Voigt concurred in part and dissented in part.

Petitioner’s counterclaim, which alleged “delivery” of the notice of claim pursuant to both Wyo. Stat. Ann. § 1-39-113 and article 16, section 7 of the Wyoming Constitution, coupled with attachment of the notice of claim, showing such compliance, was sufficient to give the district court subject matter jurisdiction over the counterclaim under our existing precedent. However, the mere filing of a complaint or counterclaim alleging a claim against a governmental entity does not give the district court subject matter jurisdiction over that claim.

Summary 2011 WY 35

Summary of Decision February 25, 2011


[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Brown v. City of Casper

Citation: 2011 WY 35

Docket Number: S-09-0263

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461785

Appeal from the District Court of Natrona County, Honorable W. Thomas Sullins, Judge

Representing Appellant: Thomas A. Valdez and Tamara K. Schroeder of Chapman Valdez, Casper, Wyoming.

Representing Appellee City of Casper: Patrick J. Murphy of Williams, Porter, Day & Neville, Casper, Wyoming.

Representing Appellee Eric E. Walters: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; and Thomas W. Rumpke, Senior Assistant Attorney General.


Date of Decision: February 25, 2011

Facts: Appellant was injured when the vehicle he was driving was struck by a vehicle driven by Appellee Walters. Appellant presented a notice of claim to the Appellee City and subsequently filed a complaint in district court. The district court dismissed the complaint, finding that it lacked subject matter jurisdiction because Appellant failed to allege that he complied with the constitutional requirements for maintaining an action against a governmental entity.

Issues: Whether the District Court abused its discretion in refusing to allow Appellant to amend his complaint to correct a deficiency in an allegation and to conform to the undisputed facts of the case. Whether the District Court erred in ruling that the allegations contained in the Complaint, when viewed in the light most favorable to Appellant did not sufficiently allege the prerequisites for the District Court’s subject matter jurisdiction. Whether the judicially created rules for pleading a governmental claim lead to injustice and are against public policy and should be abolished.


Holdings: While there is no question that presentation of a notice of claim is constitutionally and statutorily required before an action can be brought against a government entity, the rule the understandably but mistakenly attributed to a statement made in Board of Trustees of UW v. Bell, 662 P.2d 410 (Wyo. 1983) that district court jurisdiction is not invoked unless the complaint alleges compliance with the constitution and statute is inconsistent with prior precedent as well as statutory and constitutional provisions granting jurisdiction over these cases to the district courts. The Court resolves the inconsistency with prior precedent and holds that subject matter jurisdiction is invoked upon the filing of a complaint alleging a claim against a governmental entity. The Court will continue to require that complaints alleging claims against governmental entities must allege compliance with the statutory and constitutional provisions governing notices of claim. See Wyo. Stat. 1-39-113(d) (2010). However, in cases where a notice of claim has been properly presented but the complaint fails to allege that fact, district courts have the discretion to allow amendment of the complaint to cure the failure.

A litigant’s failure to allege compliance with the constitutional and statutory requirements does not and cannot affect a court’s subject matter jurisdiction to act. Pursuant to the constitution and the statute, the district courts have jurisdiction to hear and decide actions brought against governmental entities, whether or not compliance is alleged, if a notice of claim complying with the constitutional and statutory requirements has been presented. District courts also have jurisdiction to allow the amendment of a complaint to allege presentation of a notice of claim complying with the statute and constitution when such a notice was in fact timely presented. To the extent that Bell and its progeny held otherwise, those decisions are overruled.

In the instant case, the district court obtained subject matter jurisdiction of this action when Appellant filed his complaint alleging that he had complied with the requirements of the WGCA by presenting a notice of claim pursuant to Wyo. Stat. 1-39-113 to the Appellee City. Jurisdiction having been invoked by the filing of a complaint alleging a cause of action against a governmental entity, and thus a case within the general class over which the court’s authority extends, the district court had the power to hear and decide the case and enter judgment. To avoid dismissal of his complaint, it was incumbent upon Appellant to show that he had satisfied the condition precedent to maintaining an action against the City. Specifically, he had to show that within two years of the collision giving rise to his injuries he presented to the City an itemized statement in writing certified under penalty of perjury. When, in response to the Appellee City’s motion to dismiss, Appellant moved to amend his complaint to allege compliance with Wyo. Stat. 1-39-113 and Art. 16, § 7, and attached a copy of the notice of claim, which did comply with those provisions, the district court had the authority to exercise its discretion and allow the amendment. In accordance with W.R.C.P. 15(c), the amendment related back to the date Appellant filed his original complaint.

The district court had subject matter jurisdiction over this matter to determine whether Appellant complied with the requirements of Wyo. Stat. 1-39-114 and Art. 16, § 7. Upon presentation of proof that Appellant had complied with those provisions, the district court also had subject matter jurisdiction to allow him to amend his complaint to so allege. To the extent the Court’s holdings beginning with Bell have been contrary to this ruling, they are overruled. The action is reversed and remand for further proceedings consistent with this opinion.

J. Kite delivered the opinion for the court.

J. Golden filed a concurring opinion. Cases like the present one under the Wyoming Governmental Claims Act often present straightforward issues of pleading which should be resolved under our rules of civil procedure. Prior cases requiring the specific pleading averment that the administrative claim was signed and certified under penalty of perjury pursuant to Article 16, Section 7, of the Wyoming Constitution, were in error because that requirement is contrary to the purposes set forth in our rules of pleading: a short and plain statement of the court’s jurisdictional grounds; each averment of a pleading shall be simple, concise, and direct and no technical forms of pleading are required; all pleadings shall be so construed as to do substantial justice; and it is sufficient to aver generally that all conditions precedent have been performed. If the defendant governmental entity believes that the plaintiff has failed to perform the condition precedent – filing a full itemized written statement certified under penalty of perjury – then W.R.C.P. 9(c) requires that defendant to make the denial of performance of that condition precedent “specifically and with particularity.” Presented with that denial, the district court is then able to make any necessary findings of fact on that issue. In other words, whether the claim meets the constitutional requirement is a simple matter of proof before the district court.

J. Voigt filed a dissenting opinion. Because the district courts can only adjudicate claims against governmental entities under the narrow confines of the WGCA, subject matter jurisdiction cannot be invoked upon the mere filing of a complaint alleging a claim against a governmental entity. Such would not even meet the requirements of W.R.C.P. 8(a), no less the WGCA and article 16, section 7 of the Wyoming Constitution. Even where the general power over matters of the kind involved in a particular case exists the proceeding must be initiated in some particular manner. The nature of the WGCA, with immunity being the rule and liability the exception, convinces me that, in Wyo. Stat. 1-39-117 (2009), the legislature did not grant the district courts jurisdiction over all cases alleging a claim against a governmental entity, but only over those cases alleging claims made “under the act.” For that reason, making one’s claim under the act is jurisdictional.

Summary 2010 WY 124

Summary of Decision issued September 3, 2010

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

Case Name: Hall v. Park County

Citation: 2010 WY 124

Docket Number: S-10-0015

Appeal from the District Court of Park County, the Honorable Wade E. Waldrip, Judge.

Representing Hall: M. Jalie Meinecke of Meinecke & Sitz, LLC, Cody, Wyoming.

Representing Park County: Larry B. Jones and William L. Simpson of Simpson, Kepler & Edwards, LLC, The Cody Wyoming division of Burg Simpson Eldredge Hersh and Jardine, PC.

Facts/Discussion: This is an appeal from a district court order dismissing Hall’s complaint for lack of subject matter jurisdiction. Hall’s minivan was struck by a County road grader. She presented a claim in 2008 seeking compensation for personal injury and property damages. In 2009, Hall filed a complaint against the County based on that claim. The County responded with a motion to dismiss asserting the district court lacked subject matter jurisdiction because the complaint did not allege compliance with the requirements of Article 16, § 7 of the Wyoming Constitution. It was dismissed with prejudice because the one-year period of limitations for bringing an action under the WGCA had passed.
Hall did not appeal the dismissal of her complaint. Instead she filed a new complaint in a separate civil action with the same averments as the first complaint but with additional language alleging compliance with the state constitution and with a copy of her governmental claim attached.
The Court noted that, there having been no appeal from the dismissal of the first complaint, and the second dismissal not having been based upon the substance of the second complaint, the question of whether or not either complaint complied with statutory or constitutional requirements was not before the Court. The determination that the savings statute did not apply to the period of limitations found in the WGCA foreclosed any need to consider whether a dismissal with prejudice was an adjudication on the merits under the savings statute.
It is uncontroverted that, under the WGCA, immunity is the rule, and liability the exception. The Court has not previously considered the issue, but other courts have held that, absent specific statutory provisions to the contrary, the doctrine of immunity precludes application of the savings statute in cases involving governmental claims. The language of § 1-39-114 is clear: actions against governmental entities are “forever barred” unless commenced within one year after presentment of the claim. There was no appeal of the dismissal of the first district court case filed by Hall and the second district court case filed by her was filed outside the statutory period of limitations. The “closed ended” WGCA does not provide for liability beyond its specific provisions and there is no provision within the WGCA for application of the savings statute, which is not part of the Act, to causes of action thereunder.

Conclusion: The savings statute does not apply to actions filed under the WGCA. Consequently, the district court correctly determined that it did not have subject matter jurisdiction over Hall’s second civil action, and correctly dismissed it.

Dismissed.

J. Voigt delivered the decision.

C. J. Kite dissented, joined by J. Burke: The Justices disagreed that the savings statute did not apply to cases brought under the WGCA. Hall commenced her action in due time within the meaning of § 1-3-118 and Rule 3(b). W.R.C.P. 41(b) makes it clear that a dismissal for lack of jurisdiction is not an adjudication on the merits. Under the savings statute, therefore, Hall was entitled to commence a new action within one year after the July 2009 order of dismissal. Her new action, filed July 27, 2009 was timely and the district court’s order dismissing it for lack of subject matter jurisdiction should be reversed. C. J. Kite would have concluded that if the legislature had intended the savings statute not to apply, it would have said so.

Link: http://tinyurl.com/2ce2z24 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

Summary 2010 WY 109

Summary of Decision issued August 4, 2010

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

Case Name: Rice v. Collins Communication, Inc.

Citation: 2010 WY 109

Docket Number: S-09-0007

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

Representing Appellant Rice: Jeffrey A. Tennyson of Jeffrey A. Tennyson, PC; and Heather Noble, Jackson, Wyoming.

Representing Appellees: Stuart R. Day and Ryan J. Schwartz of Williams, Porter, Day & Neville, PC, Casper, Wyoming for Collins Communication, Inc.; Roger E. Shumate and James C. Worthen of Murane & Bostwick, LLC, Casper, Wyoming for Communication Technologies, Inc.; Judith Studer of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming for Campbell County Board of County Commissioners, Campbell County Sheriff and Campbell County Emergency Management Coordinator; and Tom. C. Toner of Yonkee & Toner, LLP, Sheridan, Wyoming for Gillette Wright/Campbell County Fire Protection Joint Powers Board.

Facts/Discussion: Rice’s commercial building caught fire in Campbell County. Because of a failure in the communications/paging system used by the county, almost half an hour passed before there was any formal response to the fire. Rice’s building and its contents were almost totally destroyed. Rice filed suit against several county entities as well as two communications companies alleging negligence.

Collins/ComTech duty of care: Rice claimed that Collins and ComTech owed him a duty of care based upon the Restatement (Second) of Torts. The Court has adopted the Restatement view of voluntary undertakings in the “Good Samaritan” context. Under Rice’s argument, a private corporation doing business with a government entity would owe a duty to a private citizen. The Restatement does not contemplate that sort of expansion. Both Collins and ComTech were supplying services at the request of the county. The Court reviewed the district court’s utilization of the eight factor test to determine the existence of a duty and agreed with its conclusions. The Court addressed in further detail factors one and two.
Governmental immunity – scope of duties: As in Sponsel, the Court applied the same statutory construction rule in the instant case. Although Sponsel recognized that the enumerated utilities in the statute is not an “exclusive” list, the Court could not extend the list to the fire page system at issue in part because of the Court’s holding in Huitt which says that firefighting is not similar to or of the same genre as “gas, electricity, water, solid or liquid waste collection or disposal, heating and ground transportation.” Although the fire page system is not firefighting, the Court rejected Rice’s argument that it qualifies as a public utility. Section 1-39-108 cannot be construed to make a public service of all things that are a “public responsibility.”
Governmental immunity – tortuous conduct of peace officers: Rice claimed that Sheriff Pownall assumed a duty to provide and maintain the communication system, to alert law enforcement and firefighters in the event of an emergency, and to provide a reliable and dependable means for his agency and may other agencies within Campbell County to have interoperable communications in times of emergency. According to Rice, when the Sheriff failed to heed the advice and warnings of private companies that maintained and upgraded the system, he was negligent. Decisions by an elected official regarding expenditures on equipment, type of equipment and replacement parts are within the purview of an elected official’s discretion. The testimony by the Sheriff assured the Court that he knew the system was out of date, and that he was taking steps, in good faith, to replace it.
Governmental immunity – negligent operation of building: Rice also claimed that the County Defendants were not entitled to immunity from liability under §1-39-106. The district court found the section inapplicable, stating the facts do not indicate a building was involved in this instance. The failure of a “repeater” did not implicate negligence in the operation of a building in which it was housed. Rice argued the buildings were various tower sites that house the actual repeaters, transmitters and other communication equipment. Assuming a problem occurred with communication equipment, that equipment does not qualify as a “building” as contemplated by the statute. That communication equipment does not operate as part of the building structure and accordingly its failure does not extend the waiver to any negligence associated with the operation of that communication equipment within the building.

Conclusion: The district court was affirmed on all issues. First, Collins and ComTech owed no duty of care to Rice in operating and maintaining an emergency communications system for Campbell County, when the failure of that system delayed the fire department’s response to the fire that led to the destruction of Rice’s building and property. As to the three governmental immunity claims Rice brought on appeal, there is no waiver of governmental immunity in any of those claims. For purposes of this appeal, the fire page system cannot be considered a public utility under the statute; Sheriff Pownall acted in good faith and within the scope of his duties, and did not exhibit tortuous conduct, and the communication equipment at issue cannot be classified as a “building” for purposes of the statute. Finding no duty, Rice’s fifth and final argument regarding proximate cause was not addressed.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/2dsec7u .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance using the Universal Citation format, please contact the Wyoming State Law Library.]

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

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it is issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. You will also note when you look at the opinion that all of the paragraphs are numbered. When you need to provide a pinpoint citation to a quote the universal portion of the citation will use that paragraph number. The pinpoint citation in the P.3d portion will need to have the reporter page number. If you need assistance in putting together a citation from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]