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Wise v. Ludlow

Supreme Court of Wyoming

March 24, 2015

MARY L. WISE, Appellant (Plaintiff),
STEVEN F. LUDLOW, Appellee (Defendant). STEVEN F. LUDLOW, Appellant (Defendant),
MARY L. WISE, Appellee (Plaintiff)

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Appeal from the District Court of Natrona County. The Honorable Daniel L. Forgey, Judge.

Representing Appellant, Mary L. Wise, S-14-0147: Stephen R. Winship, Winship & Winship, P.C., Casper, Wyoming.

Representing Appellee, Steven F. Ludlow, S-14-0147 : Sean W. Scoggin, McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.


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BURKE, Chief Justice.

[¶1] Mary L. Wise appeals from a judgment following a jury verdict in a personal injury trial arising from a single car collision in which she was the passenger and Steven F. Ludlow was the driver. She contends the

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district court made erroneous decisions relating to comparative fault and to the admission and exclusion of certain evidence. Mr. Ludlow filed a cross-appeal, asserting that the district court incorrectly ruled that he had been properly served with the Summons and Complaint. We will affirm the district court in both Ms. Wise's appeal and Mr. Ludlow's cross-appeal.


[¶2] Ms. Wise lists a number of issues in her appeal. We reword and reorganize them as follows:

1. Did the district court err by instructing the jury on comparative fault?
2. Did the district court err in excluding evidence of Ms. Wise's lack of financial resources to explain delays in seeking treatment for her injuries?
3. Did the district court err by admitting the testimony of Mr. Ludlow's expert witness?
4. Did the district court err in denying Ms. Wise's attempt to impeach Mr. Ludlow's testimony with Mr. Ludlow's Answer to the Complaint?

[¶3] Mr. Ludlow raises a single issue:

1. Did the district court err in determining it had personal jurisdiction over Mr. Ludlow?


[¶4] The accident at issue occurred in Casper, Wyoming, on Sunday, October 28, 2007. On that date, Mr. Ludlow consumed a significant amount of alcohol. He began drinking at his home around 9:00 a.m. He went to the Sandbar Lounge at 11:00 a.m. where he drank beers and shots of whiskey, and later rum and coke drinks. Ms. Wise arrived at the Sandbar early that afternoon, coming from a different bar where she had lunch and a couple of beers, followed by some vodka drinks. Mr. Ludlow and Ms. Wise had known each other for about two years, and had dated on occasion. They talked for a while at the Sandbar, and she asked for a ride in his Corvette. They left at about 5:00 p.m.

[¶5] After driving a short distance, Mr. Ludlow lost control of the car while driving 40 to 50 miles per hour in a 30 mile per hour zone. The vehicle struck a fence and a concrete stairway and was totaled. Mr. Ludlow admitted to the investigating officer that he was too drunk to drive and, approximately two hours after the accident, his blood alcohol level was measured at 0.14%. He later pled guilty to a charge of driving while under the influence of alcohol.

[¶6] Mr. Ludlow and Ms. Wise were taken to the hospital, examined, and discharged. Ms. Wise was diagnosed with a chest contusion, bruises, and abrasions. She followed up with her regular doctor with concerns about various pains and soreness. Approximately six months after the accident, she began experiencing pain in her back, neck, and legs, and eventually was diagnosed with abnormalities in the discs of her cervical and lumbar spine.

[¶7] Ms. Wise filed suit on October 19, 2011. Mr. Ludlow was living in New Jersey at the time. Ms. Wise attempted to serve process on him at the New Jersey address listed on his driver's license. The affidavit of service indicates that the Summons and Complaint were served at that address on " Christine Ludlow (Mother)."

[¶8] Mr. Ludlow responded with a motion to dismiss pursuant to W.R.C.P. 12(b)(5), claiming insufficiency of service of process. The district court denied the motion. Mr. Ludlow then filed his Answer, preserving his claim of improper service as an affirmative defense. In a subsequent scheduling order, the district court set a deadline for Mr. Ludlow to file " a motion regarding the issues of service and jurisdiction." Mr. Ludlow filed the motion on the deadline, styling it as a motion for summary judgment. The district court denied the motion, ruling that the Summons and Complaint had been properly served.

[¶9] A four day trial began on February 3, 2014. The jury returned a verdict finding Mr. Ludlow negligent, that his negligence was a cause of Ms. Wise's injuries or damages, and that he was 55% at fault. The jury also found that Ms. Wise was 45% at fault. The jury found her total damages to be

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$15,000. Ms. Wise's damages were reduced by her percentage of fault, and the district court entered a judgment of $8,250 in her favor. She filed this appeal. Mr. Ludlow responded with his cross-appeal.


[¶10] " Proper service of process is necessary to acquire personal jurisdiction over a defendant under the due process provisions of both the federal and state constitutions." Lundahl v. Gregg, 2014 WY 110, ¶ 7, 334 P.3d 558, 561 (Wyo. 2014) (citing Gookin v. State Farm Fire and Casualty Ins. Co., 826 P.2d 229, 232 (Wyo. 1992)). Due to the jurisdictional nature of service of process, Mr. Ludlow's issue is potentially dispositive. We will address it first.

[¶11] W.R.C.P. 4(d)(1) provides that service can be made " by delivering a copy of the summons and of the complaint to the individual personally, or by leaving copies thereof at the individual's dwelling house or usual place of abode with some person over the age of 14 years then residing therein." The affidavit of service indicates that process was served at an address on Ravine Road in Verona, New Jersey. In his motion to dismiss, Mr. Ludlow claimed that this address was not his " dwelling house or usual place of abode." To support the motion, he presented the affidavit of his mother stating that the Ravine Road address was her residence, and that Mr. Ludlow did not reside there.

[¶12] In opposition to the motion, Ms. Wise presented the affidavit of Detective Brian Marczewski stating that when he took the Summons and Complaint to the designated address, " The person who answered the door was Christine Ludlow. I verified that she was over the age of 14 and that she resided at [the Ravine Road address]. . . . I then inquired if Steven Ludlow also resided in the home with her, which she answered by saying 'yes.'" The district court denied the motion explaining that the return of service provided a prima facie case as to the facts of service, and that Mr. Ludlow had not met his burden of countering that prima facie case.

[¶13] Mr. Ludlow subsequently raised the issue again, this time in a motion for summary judgment. In addition to the affidavit of his mother presented with his earlier motion to dismiss, Mr. Ludlow included an excerpt from the transcript of his mother's deposition, in which she stated that Mr. Ludlow had lived at her home for two months during 2009, but had moved to another address by the time process was served. She also testified that, when the detective came to her home and asked if Mr. Ludlow lived there, she " responded by saying no." He also added his affidavit stating that at the time of service, he was not living at Ravine Road, but rather at an address on Grove Avenue in Verona, New Jersey. He attached several tax forms listing the Grove Avenue address.

[¶14] Ms. Wise opposed the motion. She again relied on the affidavit of the detective who had left the Summons and Complaint with Mr. Ludlow's mother. She also attached an excerpt from Mr. Ludlow's deposition in which he stated that his driver's license still listed the Ravine Road address, and that he stored a tool box at his mother's home. Ms. Wise also pointed to portions of the deposition of Mr. Ludlow's mother in which she stated that Mr. Ludlow sometimes received advertisements in the mail at her address.

[¶15] The district court denied Mr. Ludlow's motion for summary judgment. Summary judgment is granted only when there are no genuine issues of material fact. Jacobs Ranch Coal Co. v. Thunder Basin Coal Co., LLC, 2008 WY 101, ¶ 8, 191 P.3d 125, 128 (Wyo. 2008). Because there was conflicting evidence on the question of Mr. Ludlow's usual place of abode, summary judgment was precluded. However, in the usual course of events, the denial of a motion for summary judgment results in a determination of the issue at trial. That did not happen in this case. In denying Mr. Ludlow's motion for summary judgment, the district court decided the service of process issue and ruled in Ms. Wise's favor.

[¶16] A decision in Ms. Wise's favor would have been appropriate if the issue had come before the court on a motion to dismiss. W.R.C.P. 12(d) provides that defenses of lack of subject matter or personal jurisdiction,

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improper venue, insufficiency of process or service of process, failure to state a claim, and failure to join a party " shall be heard and determined before trial on application of any party, unless the court orders that the hearing and determination thereof be deferred until the trial." When a defendant files a motion contesting the court's personal jurisdiction, " [t]he court may consider any allegations set forth in the complaint and any evidence which may be introduced in a hearing on the issue." Amoco Production Co. v. EM Nominee Partnership Co., 886 P.2d 265, 267 (Wyo. 1994) (citing McAvoy v. District Court of Denver, 757 P.2d 633, 634-35 (Colo. 1988)).

Previously, we have ruled that federal authority interpreting FED.R.CIV.P. 12 is highly persuasive because of the virtual identity of the two rules. In the federal courts, the practice is to consider affidavits and any other relevant matter that may assist the court in determining jurisdictional facts when confronted with a motion to dismiss under Rule 12(b)(2). This practice is summarized in CHARLES A. WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE CIVIL 2D § 1351, at 253 (1990):
When a court is considering a challenge to its jurisdiction over defendant or over a res, it may receive and weigh affidavits and any other relevant matter to assist it in determining the jurisdictional facts; * * *.
In making its decision on the issue, the trial court has considerable leeway. It may determine the matter on the basis of pleadings and other materials called to its attention; it may require discovery; and it may even conduct an evidentiary hearing.

PanAmerican Mineral Servs. v. KLS Enviro Resources, Inc., 916 P.2d 986, 989 (Wyo. 1996) (some citations omitted).[1]

[¶17] In this case, the parties and the district court referred to Mr. Ludlow's motion as one for summary judgment. What the district court actually did, however, was to make a pretrial decision, resolving the issue of service of process. This was entirely consistent with our rules of procedure and our previous decisions relating to motions to dismiss. We will review the district court's decision as if made on a motion to dismiss. As another court explained:

The defense [of improper service of process], having been properly and reasonably raised, was ripe for an application to have it determined pursuant to Rule 12(d). We should note that since the defense of improper service involves a matter in abatement and does not go to the merits of the action, the present application is improperly brought by a motion for summary judgment under Rule 56 F.R.Civ.Pro. See Moore's Federal Practice (2d Ed.) Vol. 6, Sec. 56.03. However, since this defense was timely raised in defendant's answer pursuant to Rule 12(b) ...

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