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Mccann v. City of Cody

July 6, 2009


Appeal from the District Court of Park County The Honorable Gary P. Hartman, Judge.

The opinion of the court was delivered by: Hill, Justice.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, and BURKE, JJ.

Hill, J., delivers the opinion of the Court; Burke, J., files a dissenting opinion, with whom Kite, J., joins.

[¶1] Appellant, Bonnie A. McCann (McCann), seeks review of the district court‟s order granting summary judgment in favor of Appellee, City of Cody. McCann was injured in an automobile accident which she claimed was caused by the negligence of the City of Cody and its contractor, Harris Trucking and Construction Company (Harris). The district court granted summary judgment in Cody‟s favor because McCann‟s complaint did not allege that she had complied with the constitutional and statutory requirements of maintaining such an action against a governmental entity, as required by our ruling in Beaulieu v. Florquist, 2004 WY 31, ¶¶ 10-15, 86 P.3d 863, 866-69 (Wyo. 2004) (Beaulieu II). We affirm the district court‟s summary judgment order.


[¶2] McCann raises these issues:

A. Did the district court err in finding that the administrative prerequisites for the filing of a claim under the Wyoming Governmental Claims Act, W.S. § 1-39-101 et seq. could be distinguished from the constitutional and statutory prerequisites.

B. Did the district court err in granting summary judgment for a failure to satisfy the pleading mandates of Beaulieu v. Florquist, 2004 WY 31, 86 P.3d 863 (Wyo. 2004) (Beaulieu II) where all of the constitutional and statutory requirements for the filing of a claim under the Governmental Claims Act were met by [McCann] and the compliance paragraph of the Complaint referred to these requirements as administrative prerequisites rather than constitutional and statutory prerequisites, when the requirements are the same.

Cody rephrases the issues into this statement:

The district court properly found that it lacked subject matter jurisdiction because [McCann‟s] complaint failed to allege that she complied with the Wyoming Constitution and Wyoming Governmental Claims Act when she filed her claim against the City of Cody.


[¶3] McCann filed a complaint against Cody on April 6, 2007. In that complaint, McCann alleged that on December 15, 2005, a waterline was broken in the course of a construction project being done at the behest of Cody. That work was being done by Harris Trucking. Water from the broken waterline backed up onto the roadway and instantly froze. No signage or other warning devices were in place when McCann happened onto the scene in her automobile. The icy conditions caused her car to flip over. McCann suffered significant personal injuries and her car was damaged. McCann further contended that her damages were caused, at least in part, by negligent acts committed by Cody. In her complaint, McCann asserted that:

[T]he administrative prerequisites for the filing of this claim have been met inasmuch as [McCann‟s] Verified Notice of Claim was served upon the City of Cody, Wyoming at the office of its business manager on December 26, 2006 to which there has been no response.

McCann filed an amended complaint adding Harris as a defendant, and that complaint contained a provision identical to that quoted above. The claim McCann filed with the City of Cody on December 7, 2006 included a "Verification Affidavit" which attested to the truthfulness of her claim "under penalty of perjury." On December 7, 2006, an identical claim was filed with the State of Wyoming, containing the same affidavit.


[¶4] In Beaulieu II we held:

Many cases have come before this court involving the statutory and constitutional requirements for making a claim against a governmental entity. In resolving the issues raised in those cases, we have created a rule whereby, in order to invoke the jurisdiction of the district court, the complaint must allege the filing of a claim with the governmental entity and it must allege the date of that filing. Amrein v. Wyoming Livestock Bd., 851 P.2d 769, 771 (Wyo.1993); Awe v. University of Wyoming, 534 P.2d 97, 102 (Wyo.1975), overruled on other grounds by Dye by Dye v. Fremont County School Dist. No. 24, 820 P.2d 982, 986 (Wyo.1991).

Many of our prior cases have dealt with the necessity of alleging such filing and the date of filing under Wyo. Stat. Ann. § 1-39-113 (LexisNexis 2003), or similar statute, as a condition precedent to suit.. However, as early as Utah Const. Co. v. State Highway Commission, 45 Wyo. 403, 19 P.2d 951, 953 (1933), we held that statutes granting the right to sue the state must be construed in consonance with the constitution, and that plaintiffs cannot comply with the constitution by reducing a claim to judgment and then filing that judgment as a claim against the state. The gist of that dual holding is that a claim filed with the governmental entity must meet the constitutional, as well as the statutory, requirements. In Beaulieu I, 2001 WY 33, ¶ 13, 20 P.3d at 526, we reiterated that precept: "It never has been questioned that a claim against the State must comply with the requirements of Wyo. Const. art. 16, § 7." A logical inference from that statement is that, just as in the case of a plaintiff‟s failure to allege his claim‟s compliance with statutory requirements, failure to allege his claim‟s compliance with constitutional requirements results in a lack of subject matter jurisdiction.

Unfortunately, our precedent on this issue is not consistent. Even in Beaulieu I, 2001 WY 33, ¶ 14, 20 P.3d at 527, where we recognized that governmental claims must meet constitutional requirements, we also noted that this court "has ruled that the execution requirements of art. 16, § 7 can be waived by failing to assert the issue in the trial court...." That suggests that the constitutional requirements are not jurisdictional, because the question of subject matter jurisdiction can be raised at any time and is not waived even if not raised below. Boyd, 909 P.2d at 325 (quoting United Mine Workers of America Local 1972 v. Decker Coal Co., 774 P.2d 1274, 1283-84 (Wyo.1989); Nicholaus v. Nicholaus, 756 P.2d 1338, 1342 (Wyo.1988); Bell, 662 P.2d at 415. We have, in fact, previously stated that the constitutional signature and certification requirements, unlike the statutory filing requirements, are not jurisdictional:

The State ... contends that an omission of the correct certification results in a failure of subject matter jurisdiction, and the issue can be raised at any time in the proceeding. We do not agree with this contention. The failure to verify or certify as the constitution now reads is nothing more than a defect or an irregularity that is not jurisdictional.

Martinez v. City of Cheyenne, 791 P.2d 949, 958 (Wyo.1990).

We now believe that Martinez was wrongly decided and that it must be overruled. The above-quoted statement from Martinez was supported by a citation to In re Bear River Irr. Dist., 51 Wyo. 343, 65 P.2d 686 (1937). Bear River Irr. Dist., however, did not involve the filing of a governmental claim nor did it involve the signature and certification requirement of Wyo. Const. art. 16, ยง 7. Rather, Bear River Irr. Dist. concerned a petition for the organization of an irrigation district, and a provision in the statutory Code of Civil Procedure that required pleadings to be verified. Bear River Irr. Dist.'s holding that the failure to meet that statutory verification requirement was "but a defect or irregularity" that was not jurisdictional simply should not be equated with the failure to comply with a constitutional signature and certification requirement for the presentation of a claim ...

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