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Beverly Goodman, and the Heirs and Successors and Assigns In the v. Mark and Laura Voss

February 25, 2011

BEVERLY GOODMAN, AND THE HEIRS AND SUCCESSORS AND ASSIGNS IN THE INTEREST OF RICHARD GOODMAN, APPELLANTS (RESPONDENTS),
v.
MARK AND LAURA VOSS, APPELLEES (PETITIONERS), AND IN THE MATTER OF A PETITION FOR S-10-0058, S-10-0115 A PRIVATE ROAD: MARK AND LAURA VOSS, APPELLANTS (PETITIONERS),
v.
PETER AND KIM STEVENS, AND BEVERLY GOODMAN, AND THE HEIRS, ASSIGNS, AND SUCCESSORS IN INTEREST OF RICHARD GOODMAN, APPELLEES (RESPONDENTS). W.R.A.P. 12.09(B) CERTIFIED QUESTION FROM THE DISTRICT COURT OF ALBANY COUNTY THE HONORABLE JEFFREY A. DONNELL, JUDGE
REPRESENTING APPELLANTS: GAY WOODHOUSE AND DEBORAH L. RODEN OF WOODHOUSE RODEN, LLC, CHEYENNE, WYOMING. ARGUMENT BY MS. WOODHOUSE. REPRESENTING APPELLEES: MARK T. VOSS AND LAURA M. VOSS OF CHEYENNE, WYOMING. ARGUMENT BY MR. VOSS.
REPRESENTING APPELLANTS: MARK T. VOSS AND LAURA M. VOSS OF CHEYENNE, WYOMING. ARGUMENT BY MR. VOSS. REPRESENTING APPELLEES: DANIEL B. FRANK OF FRANK LAW OFFICE, P.C., CHEYENNE, WYOMING, FOR APPELLEES STEVENS. GAY WOODHOUSE AND DEBORAH L. RODEN OF WOODHOUSE RODEN, LLC, CHEYENNE, WYOMING, FOR APPELLEES GOODMAN. ARGUMENT BY MR. FRANK AND MS. WOODHOUSE.



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

Before GOLDEN, HILL, VOIGT, and BURKE, JJ., and PERRY, D.J.

VOIGT, J., delivers the opinion of the Court; HILL, J., files a dissenting opinion.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be made before final publication in the permanent volume.

[¶1] These related cases come before us in their present iterations as W.R.A.P. 12.09(b) certifications from the district court. The battle is between neighboring landowners, with one seeking condemnation of a private road under Wyo. Stat. Ann. § 24-9-101 (LexisNexis 1999), and one contesting location of that road on her property.*fn1 The issues before the Court all involve decisions rendered by the Board of County Commissioners of Albany County, Wyoming (the Board), in exercising its authority under the statute. We will affirm in part and reverse in part, and remand to the district court for remand to the Board for entry of a judgment consistent herewith.

ISSUES

[¶2] The issues have been stated somewhat differently in the parties' briefs than they were stated in the orders of certification. We view the following issues as being determinative:

1. Was Goodman's petition for review timely filed?

2. Do the doctrines of res judicata and collateral estoppel bar Goodman from relitigating the questions of whether the Vosses' property is landlocked and whether the Vosses acted in good faith in pursuing their petition under the statute?

3. Did the Board err as a matter of law in focusing upon damage to the Vosses' property instead of damage to Goodman's property, in locating the road?

4. Did the Board err as a matter of law in allowing the Vosses to install a cattle guard at the junction of their property and the private road?

5. Did the Board err as a matter of law in denying the Vosses' motion for an award of costs under W.R.C.P. 68?

STANDARD OF REVIEW

[¶3] We have stated our standard for the review of administrative agency action many times and need not repeat it at length here. See Dale v. S & S Builders, LLC, 2008 WY 84, ¶¶ 8-27, 188 P.3d 554, 557-62 (Wyo. 2008). For present purposes, we will simply state that our review is guided by Wyo. Stat. Ann. § 16-3-114(c) (LexisNexis 2009), and that our focus in the instant case is upon the questions of whether the Board acted "not in accordance with law," or "in excess of statutory jurisdiction, authority or limitations or lacking statutory right."

FACTS

[¶4] The background facts of this matter are set out in detail in Voss v. Albany County Commissioners, 2003 WY 94, 74 P.3d 714 (Wyo. 2003) (Voss I), so they will be stated here in a more abbreviated fashion. The Vosses purchased a parcel of land in 1996. The property is bounded on the north and west by property owned by Richard and Beverly Goodman (Goodman), on the east by property owned by Peter and Kim Stevens (the Stevens), and to the south by federally owned land managed by the BLM.*fn2

[¶5] There were no recorded access easements to the Vosses' property when they purchased it. They and their predecessors in interest usually entered the property from the south, crossing properties belonging to Air Capital Fireworks (Air Capital), Goodman, the Stevens, and the BLM. This route has been called the "Highway-BLM" Road. It connects to I-80 near the Buford exit.

[¶6] After purchasing their property, the Vosses obtained from the BLM a thirty-year renewable right-of-way across the federal land, and they obtained from the Stevens an access easement restricted by a provision that the easement would lapse if the Vosses ever conveyed less than their entire parcel. Goodmans tendered to the Vosses, and recorded, an unrestricted easement over their portion of the Highway-BLM Road.

[¶7] In 1998, the Vosses negotiated with the Stevens for the purchase of an unrestricted access easement over the Highway-BLM Road, as well as a separate easement through the Stevens' property further north. This latter route, called the Creek Road, would have provided access from the Vosses' property to a county road lying east of the Stevens' property. These negotiations were not successful.

[¶8] Early in 1999, the Vosses filed a petition with the Board pursuant to Wyo. Stat. Ann. § 24-9-101, alleging that their property was landlocked, and seeking condemnation of a private road along the Creek Road. This route crossed only the Stevens' property, but the Vosses also notified the Goodmans of the petition because the Goodmans held a mortgage on the Stevens' property. The viewers and appraisers appointed by the Board eventually rejected the Creek Road and recommended that the Board locate the private road along the Highway-BLM route, with a slight modification to avoid encroaching on Air Capital's property, because Air Capital had not been made a party to the proceedings. This recommendation was accepted by the Board and incorporated into a final plat.

[¶9] Both sides petitioned the district court for review of the Board's action. The district court remanded the matter to the Board based upon its conclusion that the BLM right-of-way grant did not provide adequate legally enforceable access to a public road.

The district court also instructed the Board on remand to make an express determination whether the Vosses acted in good faith in bringing the petition. Both sides then appealed to this Court, resulting in Voss I.

[¶10] Resolution of the current controversy requires an understanding of what was determined in Voss I. First, we held that the thirty-year BLM right-of-way was not adequate to constitute access to a public road. Voss I, 2003 WY 94, ¶¶ 12-14, 74 P.3d at 719. Second, we held that the statute allows the viewers and appraisers to consider routes other than the route proposed in the petition, and we specifically noted that, upon remand, the Board was not "constrained to consideration of the Creek Road proposed by the Vosses." Id. at ¶ 16, at 720. Third, we concluded that the Board's order appointing viewers "necessarily implied in its decision" the fact that the Vosses' land was landlocked, and that all parties subsequently acted upon that assumption. Id. at ¶ 20, at 720-21. Fourth, we held that the district court had erred in instructing the Board to consider on remand whether the petition was filed in good faith. We compared this case to Mayland v. Flitner, 2001 WY 69, 28 P.3d 838 (Wyo. 2001), where, despite the lack of a specific finding of good faith, the record revealed that the petitioners had considered alternate routes, that allegations of bad faith were raised below, and "that the requisite finding of good faith is implicit in the Board's conclusion that a private road is necessary." Voss I, 2003 WY 94, ¶ 25, 74 P.3d at 722. Fifth, we concluded that the restrictive Stevens' easement did not satisfy the access requirements of the statute. Id. at

¶¶ 31-32, at 723-24. Finally, we reiterated our dual conclusion that the Vosses had established the necessity of a private road and that they had acted in good faith in bringing their petition. Id. at ¶ 33, at 724.

[¶11] After we remanded the case to the Board, both Goodman and the Stevens recorded unrestricted access easements in favor of the Vosses covering their portions of the Highway-BLM Road. The Vosses rejected the easements by filing quitclaim deeds in which they asserted that the easement deeds were nothing more than an attempt to get around this Court's requirement that the Board consider other access routes.

[¶12] Shortly thereafter, the Vosses filed with the Board an amended petition seeking an entirely different access route, this being the "Goodman Road," which lies north of, and generally parallels the Stevens' and Vosses' properties, connecting on the east with a county road. The map accompanying the amended petition shows the proposed access easement as traversing the entire Goodman tract lying north of the Voss property, making a 180-degree loop on state lands to the west, and terminating at the northwest corner of the Voss property. The amended petition also sought two access points off the proposed road, one at the Vosses' existing driveway and one at the easement's terminus.

[¶13] As the matter proceeded before the Board, the Vosses moved the Board to grant them temporary access via the Goodman Road pendente lite. That motion was heard by the Board on January 30, 2007, and granted on February 20, 2007. In response, Goodman filed a complaint in the district court seeking declaratory and injunctive relief on the ground that the private road statute did not authorize the Board to grant temporary access. The district court granted summary judgment to Goodman, and we affirmed the district court in Voss v. Goodman, 2009 WY 40, 203 P.3d 415 (Wyo. 2009) (Voss II).

[¶14] Meanwhile, the case had proceeded before the Board. Viewers' instructions were finalized on August 26, 2008, which instructions contained four alternative routes: the Creek Road, the Goodman Road, the Stevens Route (the original Highway-BLM route, but turning onto a "two track trail" on the Stevens' property to avoid the BLM land), and the Goodman Route (traversing Goodman's property from the county road westward to the Voss property, roughly parallel to but south of the Goodman Road). The Creek Road was the Vosses' first proposal. The Goodman Road was the Vosses' second proposal. The Stevens Route was the Stevens' proposal. The Goodman Route was Goodman's proposal.

[¶15] The viewers conducted the view on November 10, 2008, and presented their recommendations to the Board nine days later. They selected the Goodman Road proposed by the Vosses, but ending at the northeast corner of the Vosses' property, cutting off a good deal of what the Vosses sought. Four significant features of the route selected are: (1) it was the shortest route across Goodman's property on an existing road;

(2) any roadway west and south of the Vosses' property line would be on the Vosses' property, rather than on Goodman's property; (3) by terminating east of Goodman's north-south fence line and existing cattle guard, it limited access to Goodman's property; and (4) the viewers proposed that the Vosses be allowed to install a cattle guard in Goodman's east-west fence line at the point of access to the Voss property.

[¶16] After a two-day hearing in May of 2009, the Board issued a final ruling granting the Vosses access along the Goodman Road, but extending that access roughly one-quarter mile west of the viewers' proposed terminus at the northeast corner of the Vosses' property to a location where the Vosses had installed a gate in Goodman's east-west fence line. Perhaps the most significant feature of this extension by the Board, beyond the fact that it took more of Goodman's property than what the viewers recommended, is that it extended the easement west of Goodman's north-south fence line and cattle guard, thereby increasing the risk to Goodman of uncontrolled access to her property.

[¶17] Two petitions for review have been certified to this Court by the district court, and have been consolidated for purposes of this opinion. Docket No. S-10-0058 is Goodman's challenge of the above-described final order of the Board. Docket No. S-10-0115 is the Vosses' challenge of the Board's order denying their motion for an award of costs.

DISCUSSION

Was Goodman's petition for review timely filed?

[¶18] W.R.A.P. 12.04(a) governs the time for filing a petition for review:

(a) In a contested case, or in an uncontested case, even where a statute allows a different time limit on appeal, the petition for review shall be filed within 30 days after service upon all parties of the final decision of the agency or denial of the petition for a rehearing, or, if a rehearing is held, within 30 days after service upon all parties of the decision.

[¶19] The Board's order establishing the private road was entered on December 15, 2009. Goodman and the Vosses personally obtained copies of the order on that day. On December 16, 2009, the County Clerk mailed copies of the order to all counsel of record, to the hearing officer, and to the Board. Goodman filed her petition for review in the district court on January 15, 2010. On February 1, 2010, the Vosses filed a motion seeking dismissal of the petition for review on the ground that it was untimely filed. Primarily, they argued that January 15, 2010, was 31 days after December 15, 2009. In addition, they asserted that the Board's December 15 order was not a final order, because the plat still had to be filed and damages had to be paid, meaning that the petition for review was premature.

[¶20] The district court denied the motion to dismiss, concluding that, for purposes of W.R.A.P. 12.04(a), service of the petition occurred on December 16, 2009, meaning the petition was timely filed. The district court further concluded that the order was a final appealable order because it was a final agency decision whether or not the plat had been completed.

[ΒΆ21] After certification, the Vosses filed a similar dismissal motion in this Court, which we denied without prejudice on June 22, 2010. The Vosses then raised the issue again in their appellate brief in S-10-0058. Both sides now rely for the most part on the materials they filed in district court concerning the motion. Having considered those materials and the relevant statutes and court rules, we will again deny the motion to dismiss. We agree with the district court that the petition for review was filed thirty days after the date of service on all parties. The ...


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