Summary 2010 WY 153

Summary of Order November 24, 2010

[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: Barnes v. State

Citation: 2010 WY 153

Docket Number: S-10-0079

URL: http://tinyurl.com/375beah

Date of Order: November 24, 2010

ORDER AFFIRMING THE DISTRICT COURT’S ORDER OF DISMISSAL

This matter came before the Court upon Appellant’s pro se “Motion of Response. This is Appellant’s appeal from an “Order of Dismissal,” wherein the district court dismissed, without prejudice, a burglary charge. Appellant’s court-appointed appellate counsel filed a “Motion to Withdraw as Counsel,” pursuant to Anders v. California, 386 U.S. 738 (1967). Following a careful review of the record and the “Anders briefs” submitted by counsel, this Court entered its “Order Granting Permission for Court Appointed Counsel to Withdraw.” That Order provided that the District Court’s “Order of Dismissal” and its “Order Denying Objections and Motions” would be affirmed unless, on or before November 12, 2010, the Appellant filed a brief that persuaded this Court that the captioned appeal is not wholly frivolous. In response to the Court’s “Order Granting Permission for Court Appointed Counsel to Withdraw,” Appellant filed his “Motion of Response.” After a careful review of that motion, the Court finds that Appellant has not established that the captioned appeal is not frivolous. The Court finds the motion devoid of cogent argument and citation to pertinent authority. Therefore, the Court finds that the District Court’s “Order of Dismissal” and its “Order Denying Objections and Motions” should be affirmed. It is, therefore,

ORDERED that any requests for relief contained in the “Motion of Response,” be, and hereby are, denied; and it is further ORDERED that the District Court’s “Order of Dismissal” and its “Order Denying Objections and Motions” be, and the same hereby are, affirmed.

BY THE COURT

Summary 2010 Wy 152

Summary of Decision November 23, 2010

[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: Bailey v. State, ex rel. Wyoming Workers’ Safety and Compensation Division

Citation: 2010 WY 152

Docket Number: S-10-0051

URL: http://tiny.cc/3p8mc

Appeal from the District Court of Natrona County, Honorable Scott Skavdahl, Judge

Representing Appellant (Petitioner): Stephenson D. Emery of Williams, Porter, Day & Neville, Casper, Wyoming

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

Date of Decision: November 23, 2010

Facts: Appellant appeals from the district court’s order affirming the Office of Administrative Hearing’s (OAH) denial of her claim for temporary total disability (TTD) benefits.

Issues: Whether the Office of Administrative Hearings (OAH) acted arbitrarily and capriciously, and contrary to law, in denying payment of temporary total disability benefits (“TTD”) to Appellant, even though she was “temporarily and totally incapacitated from performing employment at any gainful employment or occupation for which she was reasonably suited by experience or training. Wyo. Stat. §27-14-102(a)(xviii).

Holdings: The OAH’s decision denying TTD benefits did not focus on whether Appellant met the definition of TTD under Wyo. Stat. 27-14-102(a)(xviii) (LexisNexis 2009), i.e., whether she was “temporarily and totally incapacitated from performing employment at any gainful employment or occupation for which she was reasonably suited by experience or training.” Instead, it ruled that the procedural deficiencies in her application for benefits warranted denial of her claim.

The OAH’s decision denying TTD benefits did not focus on whether Appellant met the definition of TTD under Wyo. Stat. 27-14-102(a)(xviii) (LexisNexis 2009), i.e., whether she was “temporarily and totally incapacitated from performing employment at any gainful employment or occupation for which she was reasonably suited by experience or training.” Instead, it ruled that the procedural deficiencies in her application for benefits warranted denial of her claim. The hearing examiner articulated two independent grounds for denying Appellant TTD benefits: 1) there was no evidence that she submitted her application for TTD benefits to the Division; and 2) her application did not include a proper certification from her health care provider. The district court determined that the record did not contain sufficient evidence to support the hearing examiner’s ruling on the first basis, but the OAH decision on the second matter was correct and dispositive.

The claimant has the burden of proving the essential elements of her claim by a preponderance of the evidence. The claimant also must establish her compliance with the rules and procedures set forth in the Wyoming Worker’s Compensation Act. Wyo. Stat. 27-14-404(d) and 501(b) and (e) and the Division Rule require certification by the treating health care provider that the worker is temporarily and totally disabled. The Division Rule mandates that the application for benefits be submitted on a form provided by the Division and the health care provider specify the reasons for the disability and the expected period of disability. Appellant filled out the employee’s section of her application for TTD benefits and signed and dated it. The health care provider’s certification was not completed or signed by her doctor, although Appellant filled in some of that section herself. Appellant claims that, despite the fact the Division’s form was not completed by her physician, the legal requirements were satisfied by a combination of the employee part of her application for TTD benefits and a signed Return to Work/School Statement indicating that Appellant’s work status was “No work unable to work until seen by an orthopedic doctor.” However, this document was not the form provided by the Division for TTD certification and, consequently, did not meet the requirement. It did not include a certification that Appellant was temporarily totally disabled under Wyoming law or set forth the reasons for the disability or expected period of disability as required by the Division Rule and Wyo. Stat. 27-14-404(d) and 501(b). Moreover, it did not provide detailed information about the health care provider or Appellant’s diagnosis, treatment plan, or prognosis. Given that Appellant did not fulfill the statutory or regulatory requirements for health care provider certification, she was not entitled to TTD benefits.

Appellant claims that we should overlook the procedural deficiencies and decide the case on its merits. In support of her assertion, she directs us to part of Wyo. Stat. 27-14-101(b) ( 2009), which provides that “benefit claims cases [should] be decided on their merits.” A review of the entire statutory section reveals that Appellant is taking that phrase out of context and misinterpreting the legislature’s intent. The language of this section indicates a clear intent to abrogate the common law rule that workers’ compensation laws were interpreted in favor of injured employees. The reference to deciding benefit claims cases “on their merits” was in the context of nullifying the historical liberal construction in favor of coverage. Contrary to Appellant’s assertion, there is nothing in the section indicating that the legislature intended that procedural deficiencies be overlooked simply because the claimant appears to meet the definition of TTD.

Appellant also claims that the Division cannot insist on strict compliance with the procedural requirements of the Wyoming Workers’ Compensation Act because it did not fulfill its procedural responsibilities. In particular, she claims the Division violated Wyo. Stat. 27-14-601(d) by not telling her that she had not filed the proper form for TTD benefits and § 27-14-404(k) by failing to advise her that she was entitled to receive interim TTD benefits. Wyo. Stat. 27-14-601(d) provision does not require the Division to inform the claimant that she filed an incorrect form or did not fill it out correctly. It simply requires the Division to make a determination as to whether the claimant is eligible for benefits and provide notice of that determination to the interested parties.
Wyo. Stat. 27-14-404(k) provides for interim TTD benefits if the employer objects to a division determination that an injury is compensable and the employee’s health care provider has certified the employee as temporarily totally disabled . That provision does not apply in this case because: 1) the Division originally determined Appellant’s injury was not compensable; 2) she does not identify any evidence in the record indicating that, once the Division determined her injury was compensable, the employer objected; and 3) as we stated earlier, her health care provider did not properly certify that she was temporarily totally disabled under Wyoming law. Moreover, Appellant does not direct us to any legal authority stating that the Division is obligated to notify her of all potential benefits.

Appellant did not comply with the statutory and regulatory requirements for filing an application of TTD benefits. Her failure to file a proper health care provider’s certification was fatal to her claim. The OAH correctly denied her claim for TTD benefits.

Affirmed.

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

Summary 2010 WY 151

Summary of Decision November 23, 2010

[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: Kelly v. Kilts

Citation: 2010 WY 151

Docket Number: S-10-0090

URL: http://tiny.cc/2bqqi

Appeal from the District Court of Natrona County, Honorable Scott Skavdahl, Judge

Representing Appellant (Defendant): Richard H. Peek, Casper, Wyoming.

Representing Appellee (Plaintiff): Rex O. Arney and Carrie L. Shaw of Brown, Drew & Massey, Sheridan, Wyoming.

Date of Decision: November 23, 2010

Facts: Roxie Carol Kelly filed a complaint for divorce from Appellant. Appellant filed an answer in which he stated that he did not object to the divorce being awarded. Six days later, Mrs. Kelly filed a motion requesting an emergency hearing, alleging she was in the hospital in critical condition and wanted the divorce finalized before she died. After efforts to schedule a hearing with Appellant’s attorney were unsuccessful, the district court entered a divorce decree awarding the divorce and retaining jurisdiction to equitably divide the marital estate at a later date. Appellant filed a motion to set aside the decree, which the district court denied.

Issues: Whether the trial court committed reversible error when it prepared and entered the Decree of Divorce, without a hearing and notice to the parties in violation of W.R.Civ.P. Rules 12(c), 56(c), and 6(c), and in violation of Appellant’s right to due process.

Holdings: Under W.R.Civ.P. 6(c)(2), the court may, in its discretion, determine such motions without a hearing, except for those motions which will determine the final rights of a party in an action. In the present action, the motion for emergency hearing to award Mrs. Kelly a divorce in proceedings in which both parties had agreed that a divorce was appropriate and should be awarded to Mrs. Kelly as the filing party was not a motion that would determine the final rights of either party. The final rights of the parties were left to be determined at a later date. Under these circumstances, the district court properly exercised its discretion to grant the divorce without a hearing.

The resolution of Appellant’s Rule 6 argument applies with equal force to his argument that W.R.Civ.P. Rule 12(c) converted the action into a summary judgment action. Rule 6(c)(2) gives district courts the discretion to determine motions without a hearing unless the motion will determine the final rights of the parties. No one disputed in this case that the district court should enter a decree dissolving the marriage. The only matter for the district court to decide was how the marital property should be divided, which was left for a later hearing. Once Mrs. Kelly filed her complaint for divorce, nothing Appellant submitted would have changed the outcome with respect to dissolution of the marriage. Had there been a hearing, he could not have appeared and prevented the court from awarding a divorce. At most, he could have withdrawn his consent to awarding her the divorce and presented reasons why the divorce should have been awarded to him, which would have led to the same result—dissolution of the marriage. The district court did not err in granting the divorce without a hearing.

Turning to Rule 56 specifically, Mrs. Kelly was entitled after the expiration of twenty days to move for summary judgment on her complaint for divorce with or without supporting affidavits. The decree accurately states that she filed her motion for emergency hearing after expiration of twenty days from commencement of the action. There is no contention that she did not properly serve Appellant with the motion. Given that the parties agreed a divorce should be granted and that no genuine issue as to any material fact existed on that matter, the district court properly rendered judgment dissolving the marriage. The district court properly directed in the decree that it would retain jurisdiction to divide the marital estate at a later date. As for Appellant’s contention that the district court should not have considered the statements in Mrs. Kelly’s motion that she was hospitalized and wanted the divorce finalized, there is no error under the circumstances of this case. The matter for the district court’s determination upon Mrs. Kelly’s motion was whether a divorce should be granted. The pleadings showed that no genuine issue as to any material fact existed and a divorce should be granted as a matter of law.

Appellant argues that entry of the decree deprived him of the opportunity to move to amend his answer to request that he, rather than Mrs. Kelly, be awarded the divorce. Citing W.R.C.P. 15(a), he asserts that he was entitled to amend his answer with leave of court, which “shall be freely given.” In entering the decree without a hearing, he contends, the district court deprived him of the right to amend. In presenting this argument, Appellant makes no claim that allowing the amendment and granting him the divorce would have led to a different result in the property division. In fact, Appellant did not appeal the district court’s order dividing the property. Absent an assertion that the failure to allow the amendment and award him the divorce somehow prejudiced him in the property division, any Rule 15 error was harmless.

Appellant also asserts the district court denied him his right to due process when it entered the decree without affording him the opportunity to be heard. Appellant maintains he had a protected property interest in his rights of inheritance as Mrs. Kelly’s surviving spouse under Wyo. Stat. 2-4-101(a)(ii) (2009) and to a property allowance under Wyo. Stat. 2-7-501 (2009). By entering a divorce decree without affording him sufficient notice or an opportunity to be heard, Appellant contends the district court interfered with his protected property interest in an impermissible way. But for the entry of the decree, he asserts, the divorce action would have terminated upon Mrs. Kelly’s death and he, as the surviving spouse, would have inherited the property. The fallacy in Appellant’s argument is that, once the complaint for divorce was filed alleging irreconcilable differences in the marital relationship, he had no right, constitutional or otherwise, to remain married to Mrs. Kelly. There was no question that the parties wanted the marriage dissolved. To reiterate, at the time the district court entered the decree, Appellant had answered the divorce complaint by admitting a divorce was in order and asking the court to enter an order granting it to Mrs. Kelly. It was not until after the district court entered the decree in accordance with the parties’ requests that Appellant objected to its entry. Had the district court not entered the decree as requested, and had Mrs. Kelly not become fatally ill, the matter would have proceeded to hearing and the district court would have granted the divorce and divided the property equitably between the parties. The only difference would have been that Mrs. Kelly, rather than her personal representative, would have presented her case as to how the property should be divided. Absent an allegation that awarding Mrs. Kelly the divorce somehow prejudiced Appellant in the property division, his property interest was not affected in an impermissible way when the district court entered the divorce decree dissolving the marriage and set the property division hearing for a later date.

Appellant further contends the district court acted improperly when, without a hearing, it bifurcated the proceedings by granting the divorce and retaining jurisdiction to later divide the property. Wyoming does not have a statutory provision expressly authorizing courts to grant a divorce in one proceeding and determine an equitable division of the marital property in a subsequent proceeding. However, the trial of issues separately is well accepted and W.R.Civ.P. 56(c) and (d) expressly contemplate the rendering of judgment as a matter of law on some issues and a later trial on any remaining factual issues. There was no error in the district court’s entry of the divorce decree and later determination dividing the property.

Under these circumstances the divorce decree is Affirmed.

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

Summary 2010 WY 159

Summary of Decision November 22, 2010

[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: Holloway v. State

Citation: 2010 WY 150

Docket Number: S-09-0185

URL: http://tinyurl.com/32pm3lh

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

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina Kerin, Appellate Counsel; Eric M. Alden, Senior Assistant Appellate Counsel, Wyoming Public Defender Program.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Date of Decision: November 22, 2010

Facts: Appellant was convicted after a jury trial of one count of second degree sexual abuse of a minor and sentenced to three to eight years in prison. He seeks reversal of that conviction on the basis of prosecutorial misconduct.

Issues: Whether Appellant was denied due process of law by the prosecutor’s misconduct in pursuing a charge she knew was not supported by any evidence.

Holdings: In addressing a claim of prosecutorial misconduct, the focus is on the prejudicial effect of the misconduct. When reviewing a claim of prosecutorial misconduct, the entire record must be considered. In the present action, Appellant insists that reversible error occurred when the prosecutor pursued one of the three counts for which he was charged, a charge he claims the prosecutor clearly knew was not supported by any evidence. He contends that the prosecutor’s actions violated several rules of professional conduct and resulted in a denial of his due process right to a fair trial. The State counters that the prosecutor had a reasonable belief that some incriminating evidence existed to support the charge – the victim’s initial statements to police – and, therefore, did not violate her ethical duties by pursuing it.

Applying the legal principles of prosecutorial misconduct, the court could not conclude that reversible error occurred in this instance. First, it was not persuaded under the facts of this case that the prosecutor violated her ethical responsibilities by prosecuting the charge. More importantly, a review of the entire record does not show that the prosecutor’s pursuit of that charge, even if deemed improper, resulted in substantial prejudice amounting to the denial of a fair trial. The prosecutor ultimately dismissed the charge, and the jury was told of its dismissal before the second day of trial. After that, there was only minimal reference to the facts relating to that charge at trial. Most importantly, the evidence of Appellant’s guilt on the charge for which he was convicted was quite strong. Considering the strength of the evidence in conjunction with what transpired at trial, the original inclusion of the charge in question did not have a deleterious effect on the jury’s verdict. It cannot be concluded that a reasonable possibility exists that the exclusion of that charge would have led to a more favorable verdict.

Affirmed.

J. Golden delivered the opinion for the court.

Summary 2010 WY 149

Summary of Decision November 18, 2010

[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: Willis v. Davis

Citation: 2010 WY 149

Docket Number: S-10-0066

URL: http://tinyurl.com/264plpa

Appeal from the District Court of Park County, Honorable Steven R. Cranfill, Judge

Representing Appellant (Defendant): Alex H. Sitz III of Meinecke & Sitz, Cody, Wyoming

Representing Appellee (Plaintiff): Matthew D. Winslow of Keegan & Winslow, , Cody, Wyoming.

Date of Decision: November 18, 2010

Facts: Appellee Father and Appellee Mother were divorced by decree awarding Father primary physical custody of the children and giving Mother liberal visitation. A year later, Father filed a motion for an order requiring Mother to show cause why she should not be held in contempt for violating provisions of the decree. Mother responded with her own motion for an order requiring Father to show cause why he should not be held in contempt for decree violations. In her motion, Mother also requested custody modification. After a hearing, the district court entered an order declining to hold either party in contempt and denying Mother’s request for custody modification. Mother did not appeal from that order. Nine days later, Mother filed a motion to modify custody. Father moved to dismiss arguing that the motion was barred by the doctrine of res judicata because the district court had just heard and ruled on a request by Mother for custody modification. The district court granted the motion to dismiss.


Issues: Whether the district court erred when it applied the doctrine of res judicata to her Motion to Modify Custody.


Holdings: Four factors must exist for res judicata to apply: 1) the parties must be identical; 2) the subject matter must be identical; 3) the issues must be identical and relate to the same subject matter; and 4) the capacities of the persons must be identical in reference to both the subject matter and the issues between them. As a general rule the doctrine of res judicata applies to divorce decrees. However, Wyoming law recognizes that custody modification is sometimes necessary. Thus, a district court in this state that enters a custody order in a divorce proceeding has continuing subject matter jurisdiction to enforce or modify custody upon petition by either parent. The party seeking to modify custody bears the burden of establishing that a material change in circumstances has occurred since the entry of the previous custody determination and that the modification would be in the best interests of the children.

In the present case, in Mother’s response to Father’s supplement to motion for order to show cause, filed five months before the hearing, Mother prayed for an order requiring Father to show why he should not be held in contempt and “for a modification of custody.” The record, therefore, is clear that Mother requested custody modification, thereby placing the matter at issue. The record is also clear that the district court considered Mother’s custody modification request to be at issue during the contempt proceedings. Given Mother’s request for custody modification and the district court’s ruling on her request, there is no question the matter was raised and decided at the prior hearing. To warrant another hearing on the issue, Mother had to allege that a material change in circumstances occurred after the entry of the previous order. Mother’s later motion does not specifically make that allegation. Rather, it appears to allege a material change of circumstances since the entry of the divorce decree. Although the allegations Mother made against Father in the more recent motion were different from those she presented in her earlier motions, there is nothing in the record indicating these were new allegations that arose after the district court’s ruling. Because the record submitted to the Court does not include a hearing transcript or another statement of the evidence presented at the hearing, there is no way of knowing what allegations and evidence Mother presented against Father in support of her initial custody modification request.
Mother, as the appellant, had the burden to submit a sufficient record from which the Court could decide the issues presented. Without a transcript of the hearing or other statement of evidence, the Court will accept the district court’s finding and conclusion that the issues Mother presented in her later motion were identical to those heard at the earlier hearing and decided by the prior order.

Mother also maintains the dismissal of her custody modification motion denied her due process because she did not have an adequate opportunity in the earlier hearing to present evidence and argument supporting her request for modification of custody. Any contention that Mother was denied due process in the earlier hearing properly should have been presented to this Court by way of appeal from the earlier order. Mother did not appeal from that order.

Affirmed.

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

Summary 2010 WY 148

Summary of Decision November 17, 2010

[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: Adelizzi v. Stratton

Citation: 2010 WY 148

Docket Number: S-09-0257

URL: http://tinyurl.com/2882hny

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

Representing Appellant (Plaintiffs): James R. Bell of Murane & Bostwick, Casper, Wyoming.

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

Date of Decision: November 17, 2010

Facts: This is an appeal from a summary judgment granted by the district court in favor of a real estate agent and broker who were sued by former clients for professional negligence for negligently and intentionally failing to disclose that the house they were purchasing was subject to flooding.

Issues: When did the limitation period for professional negligence begin to run under Wyo. Stat. 1-3-107 (2009)? Whether the district court correctly concluded that neither exception to the commencement of the limitation period found in Wyo. Stat. 1-3-107(a)(i) is applicable given the undisputed facts of this case.


Holdings: First, statutory construction is a matter of law; second, it is an attempt to seek legislative intent; third, the court will construe a statute only if it is ambiguous, with the question of ambiguity being a question of law; and fourth, a statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistency and predictability. In addition, a basic tenet of statutory construction is that omission of words from a statute is considered to be an intentional act by the legislature, and the court will not read words into a statute when the legislature has chosen not to include them. Finally, a closely related principle is that when the legislature specifically uses a word in one place, the court will not interpret that word into other places where it was not used.

Wyo. Stat. 1-3-107 is unambiguous. A plain reading of Wyo. Stat. 1-3-107 shows that the time for filing suit is governed by the date when the ‘act, error or omission’ occurs, rather than the date when the cause of action accrues. The concept of “when the cause of action accrues,” which defines every other period of limitation found in Wyo. Stat. 1-3-102 through 1-3-116 (2009), is not present in Wyo. Stat. 1-3-107. Under no theory of statutory construction are we free to interpret the words “within two years of the date of the alleged act, error or omission” to mean “within two years of the date when the cause of action accrues.” There could be no clearer example of the legislature using one set of words in some statutes and another set of words in the statute at issue. The statute of limitations began to run in this case on the last day that Appellees performed professional services for the Appellants under their agreement.

The period of limitations found in Wyo. Stat. 1-3-107 does not begin to run on the date of the alleged act, error or omission if the plaintiff can establish either that the alleged act, error or omission was not reasonably discoverable within the statutory two-year period or that the plaintiff failed to discover the alleged act, error or omission within the statutory two-year period, despite the exercise of due diligence. In the instant case, the alleged act, error or omission of Appellee was reasonably discoverable during the two-year period, and that fact that the Appellants did not discover the alleged act, error or omission was because they did not exercise due diligence. It was less than a month after the sale closed that the Appellants suffered the first of four flooding incidents that occurred during the two-year statutory period. It cannot reasonably be disputed that the Appellants had sufficient knowledge about the water problems and the non-disclosure of those water problems to make any professional negligence by Appellees reasonably discoverable well within the statutory two-year period.

The district court is affirmed because there are no genuine issues of material fact, and the appellees are entitled to judgment as a matter of law.



J. Voigt delivered the opinion for the court.

Summary 2010 WY 147

Summary of Decision November 16, 2010

[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: Zubrod v. CWCCapital Asset Management, LLC

Citation: 2010 WY 147

Docket Number: S-10-0075

URL: http://tinyurl.com/2db3eyh

W.R.A.P. 11 Certified Question from the United States Bankruptcy Court for the District of Wyoming The Honorable Peter J. McNiff, Judge

Representing Appellant (Plaintiff): Paul Hunter, Cheyenne, Wyoming

Representing Appellee (Defendant): Gregory C. Dyekman of Dray, Thomson & Dyekman, Cheyenne, Wyoming.

Date of Decision: November 16, 2010

Facts: Appellee received a money judgment against a party who owned 100% of the stock of one corporation and 50% of the stock of another and was the president of both corporations. Appellee had the sheriff attempt to serve two writs of execution on him as the corporations’ president, in order to levy against his shares of stock in both corporations to satisfy the money judgment. He was neither at his business office nor his home when service was attempted, so the sheriff served both writs on an attorney who was the registered agent for service of process for one of the corporations. At the time process was served him, he was the law partner of a second attorney, who was the registered agent for the other. Subsequently, there was a Chapter 11 reorganization bankruptcy filed, which was later converted to a Chapter 7 liquidation bankruptcy and a trustee was appointed. After Appellee objected to the bankrupt’s use of cash collateral, the trustee filed an adversary proceeding requesting that the bankruptcy court find that Appellee had failed to perfect its interest in the stock from either corporation. That filing led to this certification

Certified Questions: Is a security interest in corporate stock perfected, pursuant to Wyo. Stat. 1-19-103, when service of a writ of execution is made on the corporation’s registered agent because a corporate officer is not present when service is attempted? Is a security interest in corporate stock perfected, pursuant to Wyo. Stat. 1-19-103, when service of a writ of execution is made on a law partner of the corporation’s registered agent?

Holdings: The trustee contends that under Wyo. Stat, 1-19-103, service on the corporation’s registered agent was invalid because service on a registered agent is proper only where there is no corporate officer, not where one exists but simply is not present or cannot be found.

In interpreting the intent of Wyo. Stat. 1-19-103, the general rules of statutory construction must be applied. That is: A statute is clear and unambiguous if its wording is such that reasonable persons are able to agree on its meaning with consistency and predictability. Conversely, a statute is ambiguous if it is found to be vague or uncertain and subject to varying interpretations. If it is determined that a statute is clear and unambiguous, the plain language of the statute will be given effect. In addition, several specific rules of statutory construction apply in the instant case. First, the general principles of statutory construction only if more than one reasonable interpretation exists. Second, the words contained in a statute must be considered in relation to one another. Third, a statute must not be given a meaning that will nullify its operation if it is susceptible of another interpretation. Fourth, a statute will not be interpreted in a manner that produces absurd results. Fifth, to determine whether a statute is ambiguous, the court will not be limited to the words found in that single statutory provision, but may consider all parts of the statutes on the same subject.

Applying these standards to the question at hand, Wyo. Stat. 1-19-103 is not ambiguous because it is susceptible to only one reasonable interpretation. The clear purpose of the statute, as evidenced by its title and by its language, is to provide the proper method of levying execution or attachment upon a corporation. The effect of such levy is to bind the shares of stock “from the time of the levy.” Wyo. Stat. 1-19-107 (2009). As evidenced by the battle in the instant case, the time of execution is critical when there is a contest among creditors over property seized. Given that context, it just would not be reasonable to interpret Wyo. Stat. 1-19-103 as allowing service upon a registered agent only in those rare cases where a corporation has no officers. Furthermore, the court cannot read into the statute a requirement that is not there; that is, a requirement that the sheriff exercise due diligence in attempting to locate a corporate officer before resorting to service upon the corporation’s registered agent. The only reasonable reading of the statute is that, where a corporate officer is not present to be served when service is attempted, service may be made upon the corporation’s agent for service of process.

Wyo. Stat. 17-16-501 (2009) requires that every corporation maintain a registered agent. The purpose of registered agent statutes is to require Wyoming corporations doing business within the state to maintain an office with a registered agent within the state and the jurisdiction of its courts where summons can be served and upon whom such service can be made. Wyo. Stat. 17-28-104 (LexisNexis 2009) and W.R.C.P. 4(d)(4) contemplate service upon a corporation via service upon its registered agent. A reading of Wyo. Stat. 1-19-103 that would limit service upon the agent to those cases where a corporation has no officers, or where the corporate officers have absconded, or are in hiding, or otherwise cannot be located, would nullify not only the general purpose of the registered agent statutes, but the purpose of the statutes designed to allow levy upon corporate stock.

The bankruptcy trustee contends that this interpretation of Wyo. Stat. 1-19-103 runs counter to the requirement in Wyo. Stat. Ann. 1-19-102 (2009) that a corporate officer, if there is one in the state, respond to the levy with “a certificate under his hand stating the number of rights or shares which the defendant holds . . .[,]” and that only if there is no officer within the state, the agent is to provide such information. However, the function of the registered agent is to accept service of process. It is the function of the corporate officers to respond substantively once the fact of service has been communicated to them. It is not illogical or unreasonable for the legislature to have committed the latter duty to the registered agent only in the absence of any corporate officer.

Wyo. Stat. 1-19-103 is also unambiguous in spelling out who may be served with a writ of execution. The statute allows for service of a writ of execution relating to corporations on one of three people: a corporate officer, and if a corporate officer is not present, a resident manager or resident agent. A law partner of a corporation’s registered agent is not the resident agent. Nothing in the phrase “resident agent” can be read to include anyone other than the resident agent. Because the right to subject corporate stock to levy and sale under execution is purely statutory, a levy which does not comply with the requirements of a state statute is invalid. Accordingly, a security interest in corporate stock cannot be perfected pursuant to Wyo. Stat. 1-19-103, 1-17-302, and 1-19-107 by serving a writ of execution on a law partner of a corporation’s registered agent.

This, a security interest in corporate stock is perfected, pursuant to Wyo. Stat. 1-19-103, where service of a writ of execution is made on the corporation’s registered agent because a corporate officer is not present when service is attempted. However, a security interest in corporate stock is not perfected, pursuant to Wyo. Stat. 1-19-103, where service of a writ of execution is made on a law partner of the corporation’s registered agent.

J. Voigt delivered the opinion for the court.