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Mountain Cement Company, A v. the South of Laramie Water & Sewer District

May 13, 2011

MOUNTAIN CEMENT COMPANY, A NEVADA CORPORATION, APPELLANT (PLAINTIFF),
v.
THE SOUTH OF LARAMIE WATER & SEWER DISTRICT, APPELLEE (DEFENDANT).
IN THE MATTER OF THE PETITION OF MOUNTAIN CEMENT COMPANY FOR THE EXCLUSION FROM THE SOUTH OF LARAMIE WATER AND SEWER DISTRICT: MOUNTAIN CEMENT COMPANY, APPELLANT (PETITIONER),
v.
THE SOUTH OF LARAMIE WATER & SEWER DISTRICT, APPELLEE (RESPONDENT).



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

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

Docket No. S-10-0199 Docket No. S-10-0238

W.R.A.P. 12.09(b) Certified Question from the District Court of Albany County The Honorable Jeffrey A. Donnell, Judge

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

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] In these consolidated appeals, Mountain Cement Company, a Nevada corporation (Mountain Cement), challenges the district court's conclusions that Mountain Cement's property was properly included in the South of Laramie Water and Sewer District (the District) and that the District lawfully issued certain general obligation bonds, and also challenges the refusal of the Board of County Commissioners of Albany County (the Board) to exclude Mountain Cement's property from the District. Finding that Mountain Cement is barred from challenging the inclusion of its property in the District, and finding that the District's proposed general obligation bond issue was not unlawful, we affirm the district court in S-10-0199. In S-10-0238, we answer the certified questions as set forth below.*fn1

ISSUES IN S-10-0199

[¶2] 1. Whether the District had the authority to include Mountain Cement's property within the District's boundaries without Mountain Cement's written consent?

2. Whether the District's proposed general obligation bond issue for the purpose of improving and expanding the District's existing water system is in violation of law?

3. Whether the District's proposed general obligation bond issue for the purpose of improving and expanding the District's existing water system violates the District's statutory indebtedness limitation?

ISSUES IN S-10-0238

[¶3] We have agreed to answer the following questions certified to this Court pursuant to W.R.A.P. 12.09(b):

1. Does a Wyoming board of county commissioners have the power and authority to remove real property from a water and sewer district?

2. If the answer to the first question is "yes," under what circumstances may a board of county commissioners remove property from a water and sewer district?

3. Does the Petition for Exclusion of Mountain Cement Company from the South of Laramie Water and Sewer District (the Petition), taking the facts alleged in the Petitionas true and the allegations viewed in the light most favorable to Mountain Cement, state a claim upon which relief can be granted?

FACTS

[¶4] The District was established by the Board in 1992.*fn2 The persons attempting to organize the District represented that the District would not levy property taxes, but would fund itself solely through user fees. Both the Petition submitted to the Board and the District's Amended Rules and Regulations provided that the District intended to fund its systems with user fees, and not to levy taxes. Since its inception, the District has obtained water pursuant to an Agreement for the City of Laramie to Furnish Municipal Water to the South of Laramie Water and Sewer District.

[¶5] Mountain Cement owns land south of the City of Laramie, with a portion of said land exceeding 20 acres in size lying within the District.*fn3 It is undisputed that, in 1992, Mountain Cement's plant manager signed a petition favoring organization of the District, but that no one with actual authority ever consented in writing to Mountain Cement's inclusion in the District. It is also undisputed that Mountain Cement obtains no water or other services from the District.*fn4

[¶6] In October 2008, Mountain Cement learned from the Albany County Assessor that the District intended to levy a tax for the 2009 tax year against property lying within the District. On January 29, 2009, Mountain Cement filed in the district court the Complaint that underlies this Court's case no. S-10-0199. The Complaint alleged eight claims or causes of action, some being in the alternative:

Claim I: Declaratory Judgment & Affirmative Relief

(MCC's Property Not Properly Included w/in District)

Claim II: Estoppel

(Tax Assessment & General Obligation Bonds)

Claim III: Declaratory Judgment & Affirmative Relief

(Signatures Invalid for Fraud in the Inducement)

Claim IV: Declaratory Judgment & Affirmative Relief

(Tax Resolution Invalid)

Claim V: Declaratory Judgment & Affirmative Relief

(Bond Issue Invalid)

Claim VI: Declaratory Judgment & Affirmative Relief

(Tax Assessment & General Obligation Bond Violation of Equal Protection)

Claim VII: Declaratory Judgment & Affirmative Relief

(Tax Assessment & General Obligation Bond Violation of Due Process)

Claim VIII: Declaratory Judgment & Affirmative Relief

(Tax Assessment Unconstitutional Taking of Private Property)

[¶7] A day after the above-described Complaint was filed in the district court, Mountain Cement filed with the Board the Petition mentioned above. This Petition, which underlies this Court's case no. S-10-0238, contained the same allegations found in the Complaint, but sought relief under Wyo. Stat. Ann. § 41-10-120 (LexisNexis 2007) and Wyo. Stat. Ann. § 22-29-307 (LexisNexis 2007), as will be discussed more fully below.

DISPOSITION BELOW

[¶8] On March 26, 2009, the District filed in the district court a motion to dismiss Mountain Cement's Complaint, citing W.R.C.P. 12(b)(6). The gravamen of a "12(b)(6) motion" is that there has been a "failure to state a claim upon which relief can be granted[.]" Both parties filed memoranda of law, after which the motion was heard on August 5, 2009. The district court issued a Decision Letter on September 8, 2009, and an order on September 22, 2009, dismissing all but Claim IV (Tax Resolution Invalid) and Claim V (Bond Issue Invalid), leaving those claims for further development.

[¶9] On November 9, 2009, the District filed a motion seeking summary judgment under W.R.C.P. 56 on Claims IV and V. Mountain Cement filed its response on January 7, 2010, and the matter was heard on April 2, 2010. In separate decision letters issued April 20, 2010, and July 8, 2010, the district court granted the District's motion on both counts. A final order disposing of all eight claims in the District's favor was entered on August 3, 2010. The appeal from that order was docketed in this Court as S-10-0199.

[¶10] While the district court action proceeded as described above, the Petition Mountain Cement had filed with the Board was also being considered. In the Petition, the factual allegations of which generally tracked those set forth in the district court Complaint, Mountain Cement sought to have its property "excluded," meaning "removed," from the District. After certifying three questions of law to the district court and receiving the district court's responses thereto, the Board dismissed the Petition for failure to state a claim upon which relief can be granted. Mountain Cement then filed in the district court a petition for review of the Board's order. Upon the parties' stipulated motion, the district court certified to this Court the same three questions that the Board had certified to it. Those questions have been listed hereinabove. See supra ¶ 3. In their briefs to this Court, the parties have focused primarily upon the question of whether Mountain Cement's Petition was time barred by the provisions of § 41-10-120 and § 22-29-307.

STANDARDS OF REVIEW

[¶11] Review of a dismissal under W.R.C.P. 12(b)(6) for failure to state a claim upon which relief can be granted is de novo, with this court applying the same standards and examining the same materials as the district court. Swinney v. Jones, 2008 WY 150, ¶ 6, 199 P.3d 512, 515 (Wyo. 2008). "We accept the facts alleged in the complaint as true and view them in the light most favorable to the non-moving party. Dismissal is appropriate only if it is certain on the face of the complaint that the plaintiff cannot assert any facts that create entitlement to relief." Id. Dismissal is granted sparingly because it is a drastic remedy, but dismissal is proper where, for instance, the complaint clearly shows that the action is barred by a statute of limitations. Id.; Simon v. Teton Bd. of Realtors, 4 P.3d 197, 200 (Wyo. 2000); Gillis v. F & A Enters., 934 P.2d 1253, 1255 (Wyo. 1997).

[¶12] Review of a grant of summary judgment under W.R.C.P. 56(c) is similar to review of a dismissal under W.R.C.P. 12(b)(6):

On appeal, this Court evaluates the propriety of a district court's summary judgment ruling by examining the same materials and following the same standards as the district court. We examine the record de novo in the light most favorable to the party opposing the motion, giving that party the benefit of all favorable inferences which may be fairly drawn from the record. If upon review of the record, doubt exists about the presence of genuine issues of material fact, we resolve that doubt against the party seeking summary judgment. We review questions of law de novo without giving any deference to the district court's determinations. If we can uphold summary judgment on any proper legal basis appearing in the record, we will.

Heimer v. Antelope Valley Improvement & Serv. Dist., 2010 WY 29, ¶ 14, 226 P.3d 860, 863 (Wyo. 2010) (quoting Wagner v. Reuter, 2009 WY 75, ¶ 11, 208 P.3d 1317, 1321-22 (Wyo. 2009) (internal citations omitted)). "Summary judgment may be the appropriate resolution in a declaratory judgment action." Coffinberry v. Bd. of County Comm'rs of the County of Hot Springs, 2008 WY 110, ¶ 3, 192 P.3d 978, 979 (Wyo. 2008).

[¶13] These appeals largely involve statutory interpretation, for which the following standards apply:

In interpreting statutes, our primary consideration is to determine the legislature's intent. All statutes must be construed in pari materia and, in ascertaining the meaning of a given law, all statutes relating to the same subject or having the same general purpose must be considered and construed in harmony. Statutory construction is a question of law, so our standard of review is de novo. We endeavor to interpret statutes in accordance with the legislature's intent. We begin by making an inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection. We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe all parts of the statute in pari materia. When a statute is sufficiently clear and unambiguous, we give effect to the plain and ordinary meaning of the words and do not resort to the rules of statutory construction. Wyoming Board of Outfitters and Professional Guides v. Clark, 2001 WY 78, ¶ 12, 30 P.3d 36, [41] (Wyo. 2001); Murphy v. State Canvassing Board, 12 P.3d 677, 679 (Wyo. 2000). Moreover, we must not give a statute a meaning that will nullify its operation if it is susceptible of another interpretation. Billis v. State, 800 P.2d 401, 413 (Wyo. 1990) (citing McGuire v. McGuire, 608 P.2d 1278, 1283 (Wyo. 1980)).

Loberg v. Wyo. Workers' Safety & Comp. Div., 2004 WY 48, ¶ 5, 88 P.3d 1045, [1048] (Wyo. 2004) (quoting Board of County Comm'rs of Teton County v. Crow, 2003 WY 40, ¶¶ 40-41, 65 P.3d 720, [733-34] (Wyo. 2003)). Only if we determine the language of a statute is ambiguous will we proceed to the next step, which involves applying general principles of statutory construction to the language of the statute in order to construe any ambiguous language to accurately reflect the intent of the legislature. If this Court determines that the language of the statute is not ambiguous, there is no room for further construction. We will apply the language of the statute using its ordinary and obvious meaning.

BP Am. Prod. Co. v. Dep't of Revenue, 2005 WY 60, ¶ 15, 112 P.3d 596, 604 (Wyo. 2005).*fn5

DISCUSSION

Whether the District had the authority to include Mountain Cement's property within the District's boundaries without

Mountain Cement's written consent?

[¶14] This issue was the subject of Claim I of the Complaint, in which Mountain Cement sought a declaration from the district court that neither Mountain Cement nor its predecessors in interest to the lands included within the District had consented to that inclusion, and that, therefore, those lands are not included in the District. The district court dismissed this claim under W.R.C.P. 12(b)(6) for failure to state a claim upon which relief can be granted, so we will review that decision using the appropriate standard set forth above.

[¶15] Mountain Cement contends that the Board's inclusion of Mountain Cement's property within the district was void ab initio because it violated the provisions of Wyo. Stat. Ann. § 41-10-102(c) (LexisNexis 2009), which provisions are the same as when originally enacted in 1959 Wyo. Sess. Laws, ch. 188, § 2 at 261, and which read as follows:

(c) No tract of twenty (20) acres or more shall be included in any district without the written consent of each person having legal (as distinguished from equitable) title to the tract.

[¶16] As mentioned above, no corporate officer or director or other representative with actual authority to do so ever gave written consent to inclusion of Mountain Cement's property in the District. See supra ¶ 5. Mountain Cement also avers that written consent similarly was not obtained from the legal owners of the "Dodge property" and the "Silva property" now owned by Mountain Cement and included in the District.

[¶17] The district court dismissed Claim I on two grounds raised by the District. First, the district court found that Mountain Cement's Complaint violated the provisions of Wyo. Stat. Ann. § 41-10-107(g) (LexisNexis 2009), which was in effect at the time the ...


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