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Mullinax Concrete Service Company, A Wyoming Corporation v. Merlin and Lori Zowada and the Sheridan County Board of County

April 11, 2012

MULLINAX CONCRETE SERVICE COMPANY, A WYOMING CORPORATION, PETITIONER,
v.
MERLIN AND LORI ZOWADA AND THE SHERIDAN COUNTY BOARD OF COUNTY COMMISSIONERS, RESPONDENTS.



Original Proceeding Petition for Writ of Review District Court of Sheridan County The Honorable Dan R. Price II, Judge

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

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] This case, concerning a petition for the establishment of a private road filed by the Zowadas, is before us for a second time, this time on a petition for writ of review. In Mullinax Concrete Service Co., Inc., v. Zowada (Mullinax I), 2010 WY 146, 243 P.3d 181 (Wyo. 2010), we remanded the case to the district court for further remand to the Sheridan County Board of County Commissioners (the Commission) to make adequate findings of fact on specific issues.*fn1 Id. at ¶ 23, at 192. While the case was pending before this Court, the legislature amended Wyo. Stat. Ann. § 24-9-101 (LexisNexis 2005), which governs the procedure used when petitioning for the establishment of a private road. On remand, the Commission and its hearing officer chose to apply the statute as amended in 2008 and 2009, although the case had originally proceeded under the statute as it existed in 2005.*fn2 Mullinax petitioned this Court to determine whether the amended statute applies or whether the statute applies as it existed in 2005. We hold that Wyo. Stat. Ann. § 24-9-101 as it existed in 2005 applies.

ISSUES

[¶2] Whether, on remand to the Commission, Wyo. Stat. Ann. § 24-9-101 should be applied as it existed in 2005 or as it currently exists with the 2008 and 2009 amendments.

FACTS

[¶3] The facts underlying the Zowadas' petition for establishment of a private road and the Commission's original decision are described in detail in Mullinax I, 2010 WY 146,

¶¶ 4-15, 243 P.3d at 183-89, and will not be repeated here. In the first appeal, this Court recognized that, although the legislature made significant changes to Wyo. Stat. Ann. § 24-9-101 after the petition was filed, the proceedings were always guided by the statute as it existed in 2005. Id. at ¶ 4, at 183. We remanded the case and ordered the Commission to make adequate findings of fact regarding two of the road routes originally considered. Id. at ¶ 23, at 192.

[¶4] On remand, the hearing officer for the Commission requested briefing from both parties and found that Wyo. Stat. Ann. § 24-9-101, as amended in 2009, should apply to the proceedings going forward. Thereafter, instead of retaining jurisdiction and making the findings of fact as mandated by this Court, the Commission certified the matter to the district court for the remainder of the proceedings, as allowed by the 2008 and 2009 amendments to the statute. Mullinax filed a petition for writ of review with the district court, arguing that the 2005 version of the statute should continue to apply to the proceedings. The district court denied the petition. Mullinax then filed a petition for writ of review with this Court, which we granted.

STANDARD OF REVIEW

[¶5] The question of whether a statute applies retroactively is a question of law and, "[a]s always, we review an agency's conclusions of law de novo[.]" Dale v. S & S Builders, LLC, 2008 WY 84, ¶ 26, 188 P.3d 554, 561 (Wyo. 2008). Therefore, "[w]e will affirm an agency's legal conclusion only if it is in accordance with the law." Id. at ΒΆ 26, at 562 ...


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