Summary 2014 WY 20

Summary of Decision February 11, 2014

Chief Justice Kite delivered the opinion of the Court. Reversed and Remanded.

Case Name: MARGARET REYNOLDS and DAVID REYNOLDS v. JEAN B. MOORE, JUDITH JAEGER and WILFORD JAEGER

Docket Number: S-13-0087

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

Appeal from the District Court of Teton County, the Honorable Timothy C. Day and the Honorable Marvin L. Tyler, Judges

Representing Appellants: Alan C. Stephens of Thomsen Stephens Law Offices, Idaho Falls, Idaho; John D. Bowers of the Bowers Law Firm, Afton, Wyoming. Argument by Mr. Stephens.

Representing Appellee Jean B. Moore: Julie Nye Tiedeken and Sean W. Scoggin of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming. Argument by Mr. Scoggin.

Representing Appellees Judith Jaeger and Wilford Jaeger: Scott Paul Landry of Pratt & Landry, LLP, Lone Tree, Colorado.

Date of Decision: February 11, 2014

Facts: The district court dismissed Margaret and David Reynolds’ negligence claims against Ms. Moore and their respondeat superior claims against her employers, Judith and Wilford Jaeger.

Issues: 1) Did the district court err when it found that Defendant Moore was not sufficiently served for the court to obtain jurisdiction? 2) Did the district court err when it held that Moore sufficiently plead[ed] the affirmative defenses of insufficiency of process and insufficiency of service under Wyo. R. Civ.P. 12(b)(4) and (b)(5)? 3) Did the district court err when it dismissed Plaintiffs’ complaint against the Jaegers because Plaintiffs’ claims against the Jaegers were derivative of the claims asserted against Moore?

Holdings/Conclusion: We conclude the district court erred by dismissing the Reynolds’ complaint. The mistake in the original summons served upon Ms. Moore was not fatal, and the district court obtained jurisdiction over her prior to the expiration of the statute of limitations. Given the action against Ms. Moore was valid, the district court erred in dismissing the Reynolds’ claims against the Jaegers because they were derivative and could not be maintained in their employee’s absence. We reverse and remand.

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 quotation, 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 2013 WY 157

Summary of Decision December 20, 2013

Chief Justice Kite delivered the opinion for the Court. Reversed in part and affirmed in part.

Case Name: INTERNATIONAL ASSOCIATION OF FIREFIGHTERS LOCAL UNION NO. 279 v. CITY OF CHEYENNE

Docket Number: S-13-0038

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

Appeal from the District Court of Laramie County the Honorable Thomas T.C. Campbell, Judge

Representing Appellant: Julie Nye Tiedeken of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming.

Representing Appellee: Steven F. Freudenthal of Freudenthal & Bonds, P.C., Cheyenne, Wyoming.

Date of Decision: December 20, 2013

Facts: The International Association of Firefighters Local Union No. 279 (the Union) appeals from the district court’s declaratory judgment on issues related to its 2012-2013 collective bargaining session with the City of Cheyenne (the City). The district court ruled on summary judgment that under the statutory definition of “corporate authorities,” the City could negotiate through “either the mayor or any member of the city council” and a quorum of the city council was not required to negotiate. The district court also determined there were no justiciable controversies over whether the Public Meetings Act and the Public Records Act applied under the circumstances presented.

Issues: In its primary brief, the Union presents the following issues on appeal: 1.Was the District Court’s declaration that “either the mayor or any member of the city council is a corporate authority within the meaning of Wyoming Statute § 27-10-104” in error? 2. Did the District Court err in determining that it did not have jurisdiction to consider whether Wyoming’s Public Meetings Act applies to collective bargaining negotiations? 3. Did the District Court err in determining that there was no justiciable controversy on the issue of whether proposals exchanged by the parties during collective bargaining negotiations are public record? 4. Are proposals exchanged by the parties during collective bargaining negotiations public records?

The City restates the issues as: A. Under W.S. § 27-10-101(a)(ii), does a mayor and/or city council person constitute a corporate authority authorized to negotiate with the union or is a quorum of the city council the corporate authority that must conduct the negotiations? B. Does the obligation to “meet and confer in good faith” under W.S. § 27-10-104 impose a blanket rule that negotiations must be conducted in executive session? C. With respect to issues D and E, infra, is the Union seeking an advisory opinion? D. Assuming that a quorum of the city council is required to conduct the negotiations, is it mandatory for the negotiations to be conducted in executive session? E. Assuming that a quorum of the city council is required to conduct the negotiations and the city council properly votes to adjourn to an executive session, are proposals exchanged between the parties public records?

Holdings: We reverse the district court’s decision that the mayor and/or a single city council member are corporate authorities and conclude the statutes mandate a quorum of the city council to negotiate with the Union. We affirm its decision that the other two issues are not justiciable, although our reasoning differs on the public meetings issue.

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 2013 WY 134

Summary of Decision October 24, 2013

Justice Voigt delivered the opinion for the court. Dismissed.

Case Name: GUILLERMO EDUARDO GOMEZ v. THE STATE OF WYOMING

Docket Number: S-13-0101

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

Appeal from the District Court of Natrona County the Honorable David B. Park, Judge

Representing Appellant: Guillermo Eduardo Gomez, Pro se.

Representing Appellee: Peter K. Michael, Chief Deputy Attorney General; David L. Delicath, Deputy Attorney General; Jeffrey S. Pope, Assistant Attorney General; Brian J. Fuller, Student Intern.

Date of Decision: October 24, 2013

Facts: The appellant pled guilty to one count of conspiracy to deliver methamphetamine and the district court imposed a sentence of fifteen to twenty years imprisonment. The district court also found the appellant to be a “qualified offender” under the Addicted Offender Accountability Act (AOAA), recommending the appellant complete intensive treatment for substance abuse. This Court affirmed the judgment and sentence. See Gomez v. State, 2010 WY 140, 241 P.3d 502 (Wyo. 2010). Soon thereafter, the appellant timely filed his first motion for a sentence reduction, which was denied by the district court and no appeal was taken. Two years after affirmance of his conviction, the appellant filed a second motion, pro se, seeking to modify his sentence. The district court denied the motion, finding it untimely, and the appellant now seeks relief from this Court.

Issues: The threshold issue is one that concerns jurisdiction; accordingly, we restate the controlling issue as follows: Did the district court have jurisdiction over appellant’s motion seeking to modify and reduce his sentence?

Holdings/Conclusion: The district court lacked jurisdiction to consider the appellant’s motion, and we, too, are without jurisdiction to consider the appeal. The appeal is dismissed.

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 2012 WY 162

Summary of Decision December 20, 2012


Justice Golden delivered the opinion for the Court. Dismissed.

Case Names: MATTHEW C. KURTENBACH v. THE STATE OF WYOMING.

Docket Numbers: S-11-0262

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

Appeal from the District Court of Weston County, Honorable Keith G. Kautz, Judge.

Representing Appellants: Diane Lozano, State Public Defender; Tina N. Olson, Chief Appellate Counsel; David E. Westling, Senior Assistant Appellate Counsel, Wyoming Public Defender Program.

Representing Appellee: Gregory A. Phillips, Wyoming Attorney General; David L. Delicath, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Jeffrey Pope, Assistant Attorney General.

Date of Decision: December 20, 2012

Facts: On September, 18, 2008, this Court affirmed Matthew Kurtenbach’s conviction for making a false written statement to obtain property. On May 20, 2011, Kurtenbach filed in district court a motion entitled “Motion to Execute Sentence.” The district court denied Kurtenbach’s motion, and Kurtenbach appealed that denial.

Issues: Kurtenbach presents the following issue on appeal:

Should the district court’s sentence be ordered to be executed to give effect to subsequent sentences in other jurisdictions and to avoid an illegal sentence?

Holdings: The Court concluded that the district court did not have jurisdiction to consider the “Motion to Execute Sentence,” and therefore this Court likewise did not have jurisdiction to consider this appeal. The appeal was dismissed.

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 90

Summary of Decision June 6, 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: Christiansen v. Christiansen

Citation: 2011 WY 90

Docket Number: S-10-0252

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=462423

Appeal from the District Court of Niobrara County, Honorable Keith Kautz, Judge

Representing Appellant (Plaintiff): Tracy L. Zubrod of Zubrod Law Office, Cheyenne, Wyoming; Mary Elizabeth Galvan of Galvan & Fritzen, Laramie, Wyoming

Representing Appellee (Defendant): No brief filed.

Date of Decision: June 6, 2011

Facts: Appellant and Appellee Christiansen are both residents of Wyoming. They were legally married in Canada in 2008. Appellant filed an action for divorce in Wyoming in February 2010. The district court determined it did not have subject-matter jurisdiction to entertain an action to dissolve a same-sex marriage. Accordingly, the district court dismissed the action.

Issues:  Whether a WYoming district court has subject-matter jurisdiction to entertian a divorce action to dissolve a same-sex marriage lawfully performed in Canada.
Holdings: District courts are endowed with broad subject-matter jurisdiction. District courts in Wyoming are courts of superior and general jurisdiction. They derive their judicial powers from the Wyoming Constitution art. 5, § 1 which states “The judicial power of the state shall be vested in the senate, sitting as a court of impeachment, in a supreme court, district courts, and such subordinate courts as the legislature may, by general law, establish and ordain from time to time.” Wyo. Stat. 20-2-104 (2009) expressly places subject-matter jurisdiction to entertain divorce proceedings with the district courts. The pivotal question is whether the fact that this is a same-sex couple strips the district court of the subject-matter jurisdiction it would otherwise enjoy to entertain a divorce proceeding.

The district court found dispositive Wyo. Stat. 20-1-101, defining marriage as a contract between a man and a woman. Since a same-sex couple is incapable of entering into a marriage as defined by § 20-1-101, the district court reasoned there was no marriage to dissolve. However, Wyo. Stat. 20-1-111 (2009) provides that “[a]ll marriage contracts which are valid by the laws of the country in which contracted are valid in this state.” The district court’s ruling thus creates a conflict between Wyo. Stat, 20-1-101 and 20-1-111.

Such a conflict does not exist in the context of a divorce proceeding. Wyo. Stat. 20-1-101 and 20-1-111, both relating to the creation of marriage, can coexist in harmony in the context of the instant divorce proceeding. Section 20-1-101 prevents a same-sex couple from entering into a marital contract in Wyoming. It does not speak to recognition of a same-sex marriage validly entered into in Canada. Section 20-1-111, on the other hand, expressly allows for the recognition of a valid Canadian marriage in Wyoming. On their face, the two sections treat different situations and as such do not conflict.

It is recognized that the rule set out in § 20-1-111 is not absolute. Under common law, this rule of validation is subject to certain recognized exceptions, namely, marriages which are deemed contrary to the law of nature as generally recognized in Christian countries, such as polygamous and incestuous marriages, and those which the legislature of the state has declared shall not be allowed any validity, because contrary to the policy of its laws. However, the policy exception is necessarily narrow, lest it swallow the rule. It is not enough that a marriage would not be valid if solemnized in Wyoming. Common law marriages provide a good example. Common law marriages entered into in this state are invalid. Yet, the validity of common law marriages entered into in foreign jurisdictions has been recognized for limited purposes. Likewise, recognizing a valid foreign same-sex marriage for the limited purpose of entertaining a divorce proceeding does not lessen the law or policy in Wyoming against allowing the creation of same-sex marriages. A divorce proceeding does not involve recognition of a marriage as an ongoing relationship. Indeed, accepting that a valid marriage exists plays no role except as a condition precedent to granting a divorce. After the condition precedent is met, the laws regarding divorce apply. Laws regarding marriage play no role.

Specifically, the parties are not seeking to live in Wyoming as a married couple. They are not seeking to enforce any right incident to the status of being married. In fact, it is quite the opposite. They are seeking to dissolve a legal relationship entered into under the laws of Canada. Respecting the law of Canada, as allowed by § 20-1-111, for the limited purpose of accepting the existence of a condition precedent to granting a divorce, is not tantamount to state recognition of an ongoing same-sex marriage. Thus, the policy of this state against the creation of same-sex marriages is not violated.

Two Wyoming residents are seeking a legal remedy to dissolve a legal relationship created under the laws of Canada. Nothing in Wyoming statutes or policy closes the doors of the district courts to them. The district court has subject-matter jurisdiction to entertain their petition for divorce.

Reversed and remanded for further proceedings consistent with this opinion.

The court made it clear that its analysis was expressly limited to the issue before it. Nothing in this opinion should be taken as applying to the recognition of same-sex marriages legally solemnized in a foreign jurisdiction in any context other than divorce. The question of recognition of such same-sex marriages for any other reason, being not properly before the court, is left for another day

J. Golden delivered the opinion for the court.

Summary 2011 WY 64

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: Fremont County Sheriff’s Dep’t. v. Strom

Citation: 2011 WY 65

Docket Number: S-09-0244, S-09-0245

URL: http://wyomcases.courts.state.wy.us/applications/oscn/DeliverDocument.asp?CiteID=461970
Original Proceeding, Petition for Writ of Review, District Court of Fremont County,
The Honorable Norman E. Young, Judge

Representing Petitioners: Richard Rideout of Law Offices of Richard Rideout, P.C., Cheyenne, Wyoming.

Representing Respondent Rebecca Strom: John H. Robinson and Richard R. Jamieson of Jamieson & Robinson, LLC, Casper, Wyoming. Argument by Mr. Robinson.

Representing Respondent Raecheal A. Strom: Laurence W. Stinson and Dawn R. Scott of Bonner Stinson, P.C., Cody, Wyoming. Argument by Mr. Stinson.

Date of Decision: April 13, 2011

Facts: Respondent sisters were injured when the vehicle in which they were riding was struck inside city limits by a vehicle fleeing at an excessive rate of speed from pursuing law enforcement officers. The sisters each timely presented their individual written notice of claim signed under penalty of perjury to the petitioner governmental entities as required by Wyo. Stat. Ann. § 1-39-113(a) and Article 16, Section 7, of the Wyoming Constitution. Although each sister’s original complaint alleged that a notice of claim had been presented, each original complaint did not meet the requirement of alleging the date of filing of the notice of claim, and each did not specifically allege compliance with Article 16, Section 7, of the Wyoming Constitution. Each sister filed an amended complaint after expiration of the one-year statute of limitations of § 1-39-114, alleging the correct date of presentation of the notice of claim, but not specifically alleging compliance with the constitutional provision. The petitioner governmental entities filed motions to dismiss the amended complaints. The district court denied those motions and, pursuant to W.R.C.P. 15(c)(2), permitted the sisters to file second amended complaints to cure the pleading deficiencies with the amendments to relate back to the date of filing of the original complaints. The petitioner governmental entities again filed motions to dismiss those amended complaints. The district court again denied those motions. The petitioner governmental entities timely filed their petition for writ of review which this Court granted, and the Court consolidated the two cases for purposes of briefing, oral argument, and decision.

Issues: Whether a complaint which was filed within one year of presenting a notice of claim as required by the Wyoming Governmental Claims Act, but which failed to allege compliance with the Act and the constitutional requirements, can be amended after the one year deadline to allege such compliance and whether that amendment “relates back” to the date of the filing of the original complaint, when as a matter of law the district court did not have subject matter jurisdiction at the time the action was filed.

Holdings: The Court affirmed the district court’s order denying the motions to dismiss and permitting the respondents to amend their complaints to allege the dates on which they presented their notices of claims and to allege that their claims were signed under penalty of perjury in compliance with the signature and certification requirements of Article 16, Section 7, of the Wyoming Constitution, such amendments to relate back to the date of filing of the original complaints in accordance with W.R.C.P. 15(c). The Court cited recent decisions in Brown v. City of Casper, et al., 2011 WY 35, __ P.3d __ (Wyo. 2011), followed by Madsen v. Bd. of Trustees of Memorial Hospital of Sweetwater County, Wyoming, 2011 WY 36, __ P.3d __ (Wyo. 2011); and Gess v. Flores, 2011 WY 48, __ P.3d __ (Wyo. 2011), as controlling authority.

J. Golden delivered the opinion for the court.

J. Voigt filed a specially concurring opinion, concurring in the result of the majority opinion out of respect for the doctrine of stare decisis, but believing the result was 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 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 91

Summary of Decision issued June 29, 2010

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

Case Name: Garwood v. Garwood

Citation: 2010 WY 91

Docket Number: S-09-0092

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

Representing Orlan O. Garwood and Carol A. Jones as Trustees: Scott W. Meier and Lucas E. Buckley, Hathaway & Kunz, PC, Cheyenne, Wyoming.

Representing William J. Garwood: No appearance.

Facts/Discussion: William Garwood filed a lawsuit seeking an order directing the Trustees (Orlan O. Garwood and Carol A. Jones), who are two of Mr. Garwood’s children and two of the three designated Trustees of the W.J. Garwood and Mildred E. Garwood Trust (Family Trust) to pay him a sum of money from the Family Trust sufficient to provide for his support as provided by the terms of the trust. The district court issued an order allocating trust assets and directing payments to Mr. Garwood. The Trustees appealed. The Court affirmed. (No personal representative filed notice or filed a brief for Mr. Garwood who died in 2009.)

Jurisdiction: The Trustees argued that once they filed their notice of appeal in Garwood I, the district court was without jurisdiction to rule on Mr. Garwood’s motion for removal of Trustees and recovery of attorneys’ fees expenditures by the Trustees. The question of attorneys’ fees and costs in a given civil action is a common issue that a trial court may address and it does not require the filing of a separate action or a motion to amend a judgment. The issue was properly placed before the district court by Mr. Garwood’s timely filing of a post-judgment application for fees and costs. Consistent with Rule 6.01, the Court has held that during the pendency of an appeal, the district court has the right and power to enforce its decrees and orders and to protect the parties as to any rights they acquired in the district court proceedings. The district court acted prudently in delaying its consideration of the issue until the Court had ruled on the Garwood I appeal.
Abuse of discretion: The Trustees contended that even if the district court had jurisdiction to enter its order on the Trustees’ fees and costs, the court abused its discretion in allowing the Trustees only $10,000 in fees and costs. Generally, Wyoming subscribes to the American rule regarding recovery of attorneys’ fees, making each party responsible for its own attorneys’ fees unless an award of fees is permitted by contract or statute. Wyoming has adopted the Uniform Trust Code (UTC) which authorizes an award of fees and costs in judicial proceedings involving the administration of a trust. The Court may award costs and expenses including reasonable attorneys’ fees to any party to be paid by another party or from the trust that is the subject of the controversy. The Trustees contended that a trustee involved in a legal proceeding over a trust may simply pay the costs of litigation as an ordinary expense of administering the trust. Based upon the UTC, it is for the trial court to determine whether fees and costs were properly incurred in a trustee’s official capacity and if so, what constitutes a reasonable amount for those fees and costs. The litigation at issue was a judicial proceeding involving the administration of a trust and it was for the district court to determine the amount of fees and costs. The district court found and the Court affirmed that not only did the trust not benefit Mr. and Mrs. Garwood, the litigation made necessary by the Trustees’ refusal to sell the Wheatland property likewise did little to benefit the Family Trust. The Court could not find that the district court abused its discretion in limiting the amount of fees to the percentage it did. The Trustees contended the district court should have reviewed the billing statements of the Trustees’ attorneys to ascertain what fees benefited the Trust. The Trustees had opportunity to submit an application for an award of fees and costs supported by the billing statements and did not do so. Under the circumstances in the instant case, the Court would not remand to review the billing statements. The Trustees contended they were exposed to an award of damages in their personal capacities without notice and in violation of their due process rights. The order directing the Trustees to reimburse the Family Trust was not a damages award. Referring to the district court’s findings, the Trustees acted primarily in their personal interests in the litigation. The Trustees had ample notice and opportunity to defend their decision to unilaterally withdraw funds from the Family Trust for their litigation expenses.

Conclusion: The district court had jurisdiction to address issues relating to an award of attorneys’ fees and costs. The district court did so in a proper manner, and the Court found no abuse of discretion in the court’s decision.

Affirmed.

J. Golden delivered the decision.

Link: http://tinyurl.com/2u6449l .

[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 86

Summary of Decision issued June 25, 2010

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

Case Name: Churchill v. Campbell Cty Memorial Hospital

Citation: 2010 WY 86

Docket Number: S-09-0195

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

Representing Churchill: Nicholas H. Carter and Stephanie M. Humphrey of the Nick Carter Law Firm, PC, Gillette, Wyoming.

Representing Hospital: Billie LM Addleman of Hirst Applegate, LLP, Cheyenne, Wyoming.

Facts/Discussion: Churchill filed a complaint in 2009 pursuant to the WGCA alleging injury while awakening from a surgery performed at Campbell County Memorial Hospital. The district court granted the Hospital’s motion to dismiss. The district court ruled that the complaint should be dismissed because Churchill did not file a claim with the Medical Review Panel and that the complaint was barred by the applicable two-year statute of limitations.
The Court’s disposition was controlled by Bealieu II where the Court held that a complaint in a governmental claims action must allege compliance with the signature and certification requirements of the Wyoming Constitution. While the allegations indicated compliance with the statutory notice of claim requirements, the complaint did not allege compliance with the constitutional requirements.

Conclusion: Because Churchill’s complaint did not allege compliance with the constitutional requirements, the district court never acquired subject matter jurisdiction.

Dismissed.

J. Golden delivered the decision.

J. Kite, specially concurring, joined by J. Burke: The Justices would have affirmed on the basis that the district court properly concluded the applicable statute of limitations was § 1-3-107 and the complaint was not filed within two years of the alleged act, error, or omission as required by that statute. They disagree with the judicially created requirement that the complaint must allege compliance with Wyoming Constitution.

Link: http://tinyurl.com/28jfxp7 .

[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 85

Summary of Decision issued June 25, 2010

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

Case Name: Judd v. State ex rel., Wyo. Workers’ Safety & Comp. Div.

Citation: 2010 WY 85

Docket Number: S-09-0095

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

Representing Judd: Nancy L. Williams, Douglas, Wyoming.

Representing State: Bruce A. Salzburg, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; James Michael Causey, Senior Assistant Attorney General.

Facts/Discussion: Judd suffered an injury to her right knee while at work. The Workers’ Compensation Division (the Division) found the injury to be compensable and awarded benefits. Judd’s knee continued to cause her pain and approximately six months later she sought preauthorization from the Division for knee replacement surgery. The Division determined that Judd’s current knee problems related solely to preexisting degenerative arthritis and denied further benefits.

Jurisdiction: Judd contended that the Division improperly referred her case to the Medical Commission. She argued that because she did not request or agree to the referral of her case, the Medical Commission lacked jurisdiction. The option of the parties to agree to have a contested case referred to the Medical Commission is only one of the methods by which the Medical commission may attain jurisdiction. The Division itself has authority to directly refer medically contested matters to the Medical Commission for hearing. Additionally, once Judd had undergone surgery without preauthorization, the issue was not moot and the Medial Commission did not lose jurisdiction.
Material aggravation of preexisting condition: Neither Judd nor her treating physician disputes the preexisting degenerative arthritis in Judd’s knee nor the severity of that preexisting condition. There was no dispute among the medical experts who examined and evaluated Judd as to the cause of the degenerative arthritis. Neither Judd nor her treating physician suggested that her fall in the workplace caused her degenerative condition. There is no dispute that Judd’s job as a physical therapy aid was physically demanding or that for the approximately three months before the fall that Judd was working full-time without restriction. There is no dispute that prior to her work accident, she experienced only minor aching in her right knee with changes in the weather and after the fall, she was in pain, could not put weight on the knee, and did not regain function in the knee until the total knee replacement surgery was performed. The point on which the experts disagreed was whether Judd’s fall in the workplace materially aggravated Judd’s preexisting arthritis in her right knee. The Medical Commission denied compensation for Judd’s total knee replacement surgery concluding it was inevitable and the “contribution of the significant preexisting condition to the total knee replacement was far more considerable than the relatively minor fall that occurred on that date.” Wyoming law requires that the work injury combine with the preexisting condition to create the present disability and need for treatment. The Court noted Slaymaker presented facts similar to the instant case. In Straube the Court held that the employer takes an employee as he finds him and it is not material that injury could have occurred at anytime. In Roggenbuck, the court stated that surgery to treat preexisting condition was compensable where work effort brought the need for surgery to a head and forced the surgery to be done at that time.

Conclusion: The evidence is undisputed that despite Judd’s preexisting degenerative condition, she was able to work full-time without restriction before her work injury and after her work injury she suffered debilitating pain that prevented her from putting weight on her knee and from working. The work injury brought Judd’s need for surgery to a head, and the Medical Commission erred in denying benefits for the surgery.

Reversed.

J. Golden delivered the decision.

Link: http://tinyurl.com/28p5pcv .

[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 54

Summary of Decision issued April 27, 2010

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

Case Name: Neidlinger, Sr. v. State

Citation: 2010 WY 54

Docket Number: S-09-0096

Appeal from the District Court of Laramie County, the Honorable Thomas T.C. Campbell, Judge.

Representing Appellant Neidlinger, Sr.: Diane M. Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; Kirk A. Morgan, Senior Assistant Appellate Counsel.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General.

Facts/Discussion: Neidlinger, Sr. appealed the district court’s “Order Denying Defendants’ Motion to Withdraw No Contest Plea.” He contended that the district court abused its discretion in denying that motion.

The circumstances of the case are indistinguishable from those presented in Nixon and Brown. Neidlinger appealed his judgment and sentence on February 27, 2007. The court affirmed the conviction and sentence in all respects. His motion to withdraw the plea was filed nearly two years later which was untimely, therefore the district court did not have jurisdiction to entertain the motion. The district court only has jurisdiction to act if the case has been remanded or if a specific express exception conferring jurisdiction is created by a rule or statute.

Conclusion: The district court’s Order Denying Early Discharge from Probation and Order Revoking Probation and Imposing Sentence are affirmed in all respects. Neidlinger’s appeal of the district court’s Order Denying Defendant’s Motion to Withdraw No Contest Pleas was dismissed for lack of subject matter jurisdiction.

Dismissed.

J. Burke delivered the decision.

Link: http://tinyurl.com/26orzro .

[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 2009 WY 147

Summary of Decision issued December 3, 2009

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

Case Name: Motley v. Platte County, WY

Citation: 2009 WY 147

Docket Number: S-08-0171

Appeal from the District Court of Platte County, the Honorable Keith G. Kautz, Judge.

Representing Appellant Motley: H. Michael Bennett of H. Michael Bennet, PC, Cheyenne, Wyoming.

Representing Appellee Platte County: Bruce A. Salzburg, Wyoming Attorney General; Thomas W. Rumpke, Senior Assistant Attorney General; Richard Rideout, Law Offices of Richard Rideout, PC, Cheyenne, Wyoming.

Facts/Discussion: Motley worked for the Platte County Sheriff’s Department as a deputy sheriff. In 2006, he filed a complaint against the county, the Sheriff’s Department and Sheriff Steve Keigley alleging he was suspended and later terminated without cause and without notice and opportunity for a hearing in violation of § 18-3-611.
In Beaulieu II, the Court held that the failure of the complaint in a governmental claims action to allege compliance with both the statutory filing requirements of § 1-39-113 and the constitutional signature and certification requirements of Art. 16, § 7 precludes the district court from acquiring subject matter jurisdiction over the claim. The Court noted it had regularly upheld the strictness of the rule over the intervening years and stated that stare decisis dictated adherence to the rule in the instant case.

Conclusion: Because Motley’s complaint failed to allege the requisite constitutional compliance under Beaulieu II, the district court never acquired subject matter jurisdiction over the action. Since the Court was also without jurisdiction, the appeal was dismissed.

Dismissed.

J. Golden delivered the decision.

C.J. Voigt concurred: W.R.C.P. 8(a)(1) requires a civil complaint to contain a short and plain statement of the grounds upon which the court’s jurisdiction depends. The district court’s jurisdiction over a governmental claim depends upon the plaintiff’s compliance with Art. 16, § 7 of the Wyoming Constitution and with the Wyoming Governmental Claims Act (WGCA).
J. Burke joined by J. Kite dissented: The Justices dissented for the same reasons they identified in the dissent in the July 2009 McCann decision. The Justices disagreed with the application of stare decisis in the instant case. They noted that McCann was the first case in which a litigant lost the right to have a case determined on the merits solely on the basis that the complaint failed to meet the judicially created pleading requirements announced in Beaulieu II. Left unanswered in McCann and Beaulieu II are questions relating to the applicability of the Wyoming Rules of Civil Procedure to governmental claims litigation. The judicially created pleading rules relating to governmental claims should either be eliminated or applied in accordance with the W.R.C.P. As they are being applied now, they conflict with the W.G.C.A. and constitute an over-reaching by the judicial branch.

Link: http://tinyurl.com/yc8hpm7 .

[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 in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 124

Summary of Decision issued October 9, 2009

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

Case Name: Weiss v. Weiss

Citation: 2009 WY 124

Docket Number: S-09-0030; S-09-0068

Appeal from the District Court of Teton County, the Honorable Nancy J. Guthrie, Judge.

Representing Gary A. Weiss: L. Kimberly Weiss of Law Offices of L. Kimberly Weiss, Wilson, Wyoming.

Representing Kathryn B. Weiss: Kenneth S. Cohen of Cohen Law Office, PC; and Heather Noble of Jackson, Wyoming.

Facts/Discussion: These combined appeals arise out of post-divorce proceedings. In S-09-0030, Father appeals the district court’s order that he pay Mother $135,000 for the attorneys’ fees and costs she incurred in defending his motion to modify custody and in S-09-0068, Mother appeals the district court’s order changing child custody in a subsequent proceeding.
Award of attorneys’ fees: Although Wyoming generally subscribes to the American rule regarding the recovery of attorney’s fees, a prevailing party may be reimbursed for attorney’s fees when provided for by contract or statute. In determining the reasonableness of the fees requested, the trial courts are to follow the federal lodestar test which requires a determination of whether the fee charged represents the product of reasonable hours times a reasonable rate and whether other factors of discretionary application should be considered to adjust the fee. The Court stated the district court’s decision to award Mother her attorneys’ fees and costs was not unreasonable. Mother’s motion was lengthy and detailed and included an affidavit from her attorney detailing the work done, the complexities of the case and the reasonableness of the rate charged. The Court felt the case more nearly resembled Breitenstine rather than Hinckley.
Jurisdiction for child custody: Divorce is purely a statutory process with courts having no authority other than that provided by statue. The limit extends to the court’s power to modify a divorce decree. A party or parent may seek modification of a custody order. No statute authorizes a child or a guardian ad litem to initiate a petition for change of custody. In the instant case, the district court modified custody despite the absence of any petition to modify filed by either party/parent. It was without jurisdiction to do so.

Conclusion: The district court did not abuse its discretion in awarding Mother statutory attorneys’ fees and costs for her defense of Father’s 2006 motion to modify custody. The district court was without jurisdiction to modify custody based upon a report of the guardian ad litem, where no petition to modify had been filed by either party/parent. Because the case involved the custody of children with the imminent potential for a residential relocation, the Court noted that the decision does not prevent the district court from hearing an appropriately filed petition regarding custody.

Affirmed S-09-0030. Remanded S-09-0068.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yk7kcwk .

[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 in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 108

Summary of Decision issued September 2, 2009

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

Case Name: Moore v. State

Citation: 2009 WY 108

Docket Number: S-08-0276

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

Representing Appellant Moore: Timothy D. Moore, Pro se.

Representing Appellee State: Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Leda M. Pojman, Senior Assistant Attorney General.

Facts/Discussion: Moore was convicted of four felonies. Three of his felonies were ordered to be served concurrently with each other. Those three concurrent sentences were ordered to be served consecutively to the fourth felony sentence. Moore argued that the Order Granting Motion for Sentence Reduction made all of his sentences concurrent. He submitted that when the district court granted his motion for sentence reduction, it granted the only relief requested in the motion – that all sentences run concurrently. He claimed that the reduction in the maximum term (from 10 to 8 years) was a grant of additional relief. He also asserted that the Order Denying Sentence Modification was so confusing that he was compelled to seek clarification.

Jurisdiction: Moore’s 2005 pleadings were actually a series of letters, the first of which was a request to clarify the Order Granting Motion for Sentence Reduction. The Court found authority for Moore’s “motion” in W.R.Cr.P. 36 which allows error in the record to be corrected. The Court stated there was a lack of clarity in the Order. The Court found that the letters were a proper motion to correct clerical error and concluded that the district court had jurisdiction.

Res Judicata: The Court focused on whether Moore raised or had the opportunity to raise, the same issue presently before the Court in any previous proceeding. The district court clarified the 2004 Order Granting Motion for Sentence Reduction with its 2005 Order Denying Sentence Modification. The 2005 order clearly denied Moore’s requests for relief regarding the interpretation of the order including Moore’s argument that the prior order made all his sentences concurrent. The district court did not grant Moore any relief in its 2005 order. Moore did not appeal from the 2005 order. Thus, any claims denied by that order, were res judicata.

Conclusion: The district court did not grant Moore any relief in its July 12, 2005 order. It denied the requested relief. And it granted no affirmative relief. The district court’s September 18, 2008 order was entirely consistent with the July 12, 2005 order. The district court’s Order Clarifying July 12, 2005 Order Denying Sentence Modification was affirmed.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/ldkv5y .

[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 in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

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 .

[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 in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 40

Summary of Decision issued March 18, 2009

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

Case Name: Voss v. Goodman

Citation: 2009 WY 40

Docket Number: S-08-0060

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

Representing Appellant Voss: Pro se.

Representing Appellee Goodman: Gay Woodhouse and Deborah L. Roden of Gay Woodhouse Law Offices, PC, Cheyenne, Wyoming.

Facts/Discussion: Mark and Laura Voss requested relief from a district court decision in a declaratory judgment action finding that the Albany County Board of County Commissioners (Board) did not have the authority to grant them temporary access across Goodman’s land during a private road condemnation case.

Jurisdiction: The single issue before the district court was whether the Board had the authority to grant the Vosses temporary access during the private road condemnation case. It was apparent from the decision letter that the district court limited its decision to the appropriate legal issue before it. The Court’s interpretation of the Declaratory Judgment Act makes clear that there remains the prerequisite that the party seeking declaratory relief present the court with an actual controversy. After reviewing the four elements necessary to make a justiciable controversy, the Court stated the case presented a justiciable question and the district court had jurisdiction to decide the question.
Summary Judgment – Interpretation of the Statute: The Court examined the district court’s interpretation of the statute. It noted that while the Board was correct that it was possible for an agency to have implied powers in conjunction with express statutory grants of power, the instant case was not a situation where such an implied power existed. Wyoming’s private road statutes provide the mechanism by which a landowner may petition the exercise of the State’s eminent domain access between his own property and a public road. The statute makes no provision for temporary access. The purpose of a private road condemnation action is to determine whether a landowner meets the statutory requirements that allow a board of county commissioners to exercise its very limited powers of eminent domain. A grant of temporary access, while convenient, is not necessary step in the process. The Vosses sought leave to amend their Answer to add a claim for injunctive relief granting them temporary access to their property during the pending private road proceeding on the theory that the district court could grant such access through equity. The Court held in Bush v. Duff that a district court may not exercise the right of eminent domain. The Voss’ proposed amendment asked the district court to exercise powers of eminent domain not even granted to the executive branch at the time of the request, therefore such a request was futile.

Conclusion: The district court had subject matter jurisdiction to entertain the action for declaratory judgment and correctly determined that the Board had no authority under § 24-9-101 to grant the Vosses temporary access over Goodman’s land during a pending private road proceeding. The district court did not abuse its discretion when it refused to allow Voss to amend their Answer to add a futile claim.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/cc5qr8 .

[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 in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 38

Summary of Decision issued March 13, 2009

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

Case Name: Omohundro v. Sullivan; Sullivan v. Omohundro

Citation: 2009 WY 38

Docket Number: S-08-0027; S-08-0028

Appeal from the District Court of Johnson County, the Honorable David B. Park, Judge.

Representing Appellants Omohundro Trust in case S-08-0027: Kendal Hoopes, Yonkee & Toner, LLP, Sheridan, Wyoming; Anthony T. Wendtland, Wendtland & Wendtland, LLP, Sheridan, Wyoming.

Representing Appellees Sullivan Group in case S-08-0027: Kim P. Cannon and Sasha Johnston, Davis & Cannon, LLP, Sheridan, Wyoming.

Facts/Discussion: Appellants (Omohundro Trusts) own interests in Tract 6 of the Twin Lakes subdivision near Buffalo, Wyoming, and Appellees (Sullivan Group) own Tracts 1-4. The parties dispute whether under the subdivision restrictive covenants, Omohundro Trusts was required to obtain consent from all of the landowners before they could take action which would allow the City of Buffalo to obtain the water rights appurtenant to the subdivision lands. The district court ruled on summary judgment that the restrictive water rights unambiguously required the approval of the owners of all the tracts.
In the document entitled “Covenants for Twin Lakes, Buffalo, Wyoming,” Tracts 1-5 are referred to as Exhibit “A” lands while Tract 6 is referred to as Exhibit “B” lands. The language at the heart of the dispute reads: Notwithstanding any other provision in this declaration, any action, step or procedure (including without limitation, the further subdivision of any lot within the development) or the omission of any act, step or procedure which would allow or entitle the City of Buffalo to take possession, ownership, and control of the irrigation water rights applicable to the development on Exhibit “B” lands as set forth in said attached agreement shall require the written consent and approval of 100% of all lot owners within the development as well as the record owner(s) of Exhibit “B” lands. The Court considers all parts of the covenants in interpreting a provision. The Court stated that by its language the caveat included the recitation paragraphs that Omohundro Trusts claimed should be interpreted as applying to the Exhibit “A” lands. Omohundro Trusts offered the affidavit of William Omohundro as support for its reading of the covenants in its summary judgment action. The Court noted that evidence of the declarants’ subjective intention was not relevant or admissible to interpret the contract, whether its language was ambiguous or not. In addition, the relevant facts and circumstances surrounding the execution of the document could be gleaned from the covenants themselves and the documents attached including the Water Connector’s Agreement with the City.

Conclusion: The Court agreed with the district court that the disputed language unambiguously required the approval of the owners of all the tracts.

Affirmed.

J. Kite delivered the decision.

J. Burke dissented, J. Golden joined: J. Burke disagreed with the majority’s conclusion that the pertinent language in the restrictive covenants was unambiguous. Objectively, the language was ambiguous and subject to differing interpretations regarding the necessity of consent from all Exhibit “A” lot owners before subdivision of Exhibit “B” lands could occur. The interpretation of an ambiguous restrictive covenant raised genuine issues of material fact that precluded summary judgment.

Link: http://tinyurl.com/cjvrst .

[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 in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 21

Summary of Decision issued February 19, 2009

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

Case Name: Cook v. Swires

Citation: 2009 WY 21

Docket Number: S-08-0075

Appeal from the District Court of Albany County, the Honorable Jeffrey A. Donnell, Judge.

Representing Appellant Cook: William D. Bagley, Frontier Law Center, Cheyenne, Wyoming.

Representing Appellee Swires: M. Gregory Weisz, Pence and MacMillan, LLC, Laramie, Wyoming.

Facts/Discussion: The district court confirmed the execution sale of Cook’s Albany County real property to satisfy two Colorado judgments. On appeal, Cook claimed that the filing of the foreign judgments was insufficient pursuant to the Uniform Enforcement of Foreign Judgments Act (UEFJA), the property was not available for execution, the district court did not allow him the proper redemption period and that he was entitled to seek contribution from his co-judgment debtors, including Swires. Swires contested Cook’s assertions and argued that the Court did not have subject matter jurisdiction.

Jurisdiction: Swires claimed that Cook did not file a timely notice of appeal of the district court’s determination that the Colorado judgments were filed correctly under the UEFJA. The Court ruled long ago that an order granting or refusing an injunction is a final appealable order as a petition for injunctive relief invokes a special proceeding. The Court concluded that the order denying the injunction was appealable, and because Cook failed to file a timely notice of appeal from the district court’s order, the Court did not have jurisdiction to review the district court’s decision on the validity of Mr. Claus’ filing under the UEFJA.
Expiration of Lien Under Section 1-17-336: Cook claims his real property was not available for execution by Swires because pursuant to § 1-17-336, the judgment lien expired one year after Claus’ 2000 filing of the Colorado judgments. In Dev-Tech the Court ruled that even though a judgment lien expires after one year and a judgment creditor may los his priority under § 1-17-336, the property still remained available for execution pursuant to § 1-17-301. thus, § 1-17-336 did not prevent Swires from executing against Cook’s Wyoming property.
Redemption Period: The Court concluded that although Cook’s property fell within the definition of agricultural real estate set out in § 1-18-103(c), the 12 month redemption period in subsection (b) was limited to mortgaged agricultural property. The district court ruled correctly that the general three month redemption period in subsection (a) governed in the case.
Contribution: Cook argued that he was entitled to contribution from Mr. and Mrs. Swires as they were also judgment debtors on the assigned Colorado judgments. The Court was perplexed by the argument because as far as the record showed, the district court ruled in Cooks’ favor on the issue. Under the current status of the record, Cook is entitled to contribution from the Swires if he has paid more than his proportionate share of the judgment debt.
Swires’ argument that Cook was not the real party in interest was not argued to the district court and so cannot be raised on appeal.

Conclusion: The Court concluded it did not have subject matter jurisdiction to consider the sufficiency of the foreign judgments filing because Cook did not appeal an earlier district court ruling on the issue. Even though a judgment lien expires after one year the property still remains available for execution pursuant to § 1-17-301. The redemption period of twelve months was limited to mortgaged agricultural property. As the district court stated, Cook is entitled to contribution for the Swires if he has paid more than his proportionate share of the judgment debt.

Dismissed in part and affirmed in part.

J. Kite delivered the decision.

Link: http://tinyurl.com/c7qcb8 .

[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 in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2008 WY 153

Summary of Decision issued December 23, 2008

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

Case Name: Meyer v. Hatto; Hatto v. Meyer

Citation: 2008 WY 153

Docket Number: S-07-0223; S-07-0224

Appeal from the District Court of Teton County, the Honorable Dennis L. Sanderson, Judge.

Representing the Meyers: Robert N. Williams and Pamela T. Harvey of Meyer & Williams, Attorneys at Law, PC, Jackson, Wyoming.

Representing Hatto and Sullivan: Mark Diehl Sullivan of Levy Coleman LLP, Jackson, Wyoming.

Facts/Discussion: These two consolidated appeals arise from the dismissal of a complaint for lack of personal jurisdiction. The Meyers reside in Teton County, Wyoming. They own real property in Hawaii. Hatto and Sullivan, partners in the business Design Workshop, reside in Hawaii and were hired to design a residence for the Meyers.

Lack of Evidentiary Hearing: A district court possesses extreme latitude in determining whether personal jurisdiction exists. It may be decided on the basis of pleadings and other materials; it may require discovery; or it may conduct an evidentiary hearing to resolve any apparent factual questions. After reviewing the parties’ briefs and documentary submissions the district court sent a letter imparting its preliminary determination of the pertinent undisputed basic facts. The district court determined there was no dispute as to any material, basic fact. An evidentiary hearing was unnecessary to resolve factual disputes.
Existence of Personal Jurisdiction: Wyoming’s long-arm statute requires three conditions: the defendant must purposefully avail himself of the privilege of acting in Wyoming or of causing important consequences in Wyoming; the cause of action must arise from the consequences in Wyoming of the defendant’s activities; and the activities of the defendant or the consequences of those activities must have a substantial enough connection with Wyoming to make the exercise of jurisdiction reasonable. The constitutional right to exercise personal jurisdiction hinges upon a sufficient contact initiated by the defendant. Affiliations with Wyoming that involve Design Workshop but were instituted by the Meyers do not meet the constitutional minimum. The analysis revolves around the quality and nature and not the quantity of Design Workshop’s contacts. The fact that Design Workshop knew it would have to communicate with people in Wyoming in order to fulfill its contractual obligations does not qualify as purposeful availment of the privilege of doing business in Wyoming.
Submission to Jurisdiction: The Meyers argue that Design Workshop voluntarily submitted itself to jurisdiction in Wyoming by requesting attorneys’ fees and costs. Courts in other jurisdictions have gone both ways on the issue of whether a party submits to personal jurisdiction by filing a motion for attorneys’ fees. The Court concluded that a motion for attorneys’ fees is not an affirmative action that involves personal jurisdiction. Holding otherwise would allow on contracting party to force the other party to subject itself to a foreign jurisdiction or forgo its contractual right to attorneys’ fees. Such a result does not further the parties’ intent, as expressed in the contract, that litigation over the contract be undertaken at the risk of having to pay the successful party’s attorneys’ fees.

Conclusion for Appeal S-07-0223: Design Workshop is a Hawaiian firm hired in Hawaii to design a residence to be built in Hawaii. It did not solicit the contract in Wyoming. Its only connection to Wyoming is through the Meyers. Under the circumstances, the Court found Design Workshop did not purposely avail itself of the privilege of acting in Wyoming. Affirmed.
Conclusion for Appeal S-07-0224: The Meyers ignored the arbitration clause in the Agreement at their own peril. The clause was meant to avoid litigation. The Meyers cannot use their attempt to litigate instead of arbitrate as a shield against the attorneys’ fees and other expenses provision of the arbitration clause. Reversed, remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/78sr2o.

[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 in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]