TREFREN CONSTRUCTION CO., a Wyoming Corporation, Appellant (Plaintiff),
V&R CONSTRUCTION, LLC, an Ohio Limited Liability Company, and COCCA DEVELOPMENT, LTD., an Ohio Limited Partnership, Appellees (Defendants).
from the District Court of Lincoln County The Honorable
Joseph B. Bluemel, Judge
Representing Appellant: Andrew A. Irvine of Andrew A. Irvine,
P.C.; and Robert L. Stepans of Meyer, Shaffer & Stepans,
PLLP, Wilson, WY. Argument by Mr. Irvine.
Representing Appellees: John D. Bowers of Bowers Law Firm,
BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, JJ.
Trefren Construction Co. (Trefren Construction) appeals the
district court's denial of its motion to substitute the
real party in interest and the district court's grant of
summary judgment to Defendants, V&R Construction, LLC,
and Cocca Development, Ltd. We find the district court erred
in dismissing the complaint for lack of subject matter
jurisdiction, abused its discretion in denying the motion to
substitute, and erred in prematurely ruling on the merits of
the parties' contract claims. We therefore reverse.
Although Trefren Construction presents a number of issues on
appeal, we find the dispositive issues to be:
the district court err in dismissing the complaint for lack
of subject matter jurisdiction?
the district court abuse its discretion under Rule 17(a) of
the Wyoming Rules of Civil Procedure when it denied Trefren
Construction's motion to substitute the Estate of Timothy
N. Trefren as the real party in interest?
the district court err in ruling that the parties'
contracts were voidable?
Prior to his death on April 23, 2015, Timothy N. Trefren
owned Trefren Construction and operated it as a sole
proprietorship. Trefren Construction was based in Thayne,
Wyoming, and was managed by Timothy N. Trefren and his son,
Timothy R. Trefren. Defendant V&R Construction, LLC
(V&R) is an Ohio limited liability company, and Defendant
Cocca Development, Ltd. (Cocca) is an Ohio limited
partnership. Cocca is a member of V&R.
Cocca owned real property in Afton, Wyoming, on which it
desired to construct a Shopko retail establishment. Cocca
entered into a contract with V&R, by which V&R was to
act as general contractor in the construction of the Shopko
building. In turn, V&R, on May 31, 2013, entered into a
subcontract with Trefren Construction, by which it agreed to
pay Trefren Construction $458, 850.00 to complete site
preparation and excavation for the project. On June 30, 2013,
V&R entered into another subcontract with Trefren
Construction, by which it agreed to pay Trefren Construction
$145, 000.00 for erection of an approximately 36, 000 square
foot pre-engineered metal building on the site.
[¶5] In October and November 2013, Trefren Construction
billed V&R for amounts still owing on both the site
preparation/excavation contract and the building erection
contract. On May 15, 2014, it again submitted a billing to
V&R for these amounts, and on July 30, 2014, its counsel
sent a demand letter to both Cocca and V&R for the
amounts owing. The amounts owing on the contracts were not
paid, and on September 19, 2014, Trefren Construction filed a
complaint against V&R and Cocca in the Third Judicial
District Court in Lincoln County. The complaint asserted both
contract and non-contract claims and requested damages in the
amount of $115, 560.53, plus prejudgment interest. V&R
and Cocca (collectively Defendants) filed an answer and
counterclaims, and the litigation thereafter proceeded
through discovery and an unsuccessful mediation, with a trial
date scheduled for January 19, 2016.
On November 20, 2015, Defendants filed a motion to dismiss.
Defendants' motion directed the district court to
Paragraph One of Trefren Construction's complaint, which
alleged, "Plaintiff is a Wyoming Corporation with its
principal place of business located in the Town of Thayne,
County of Lincoln, State of Wyoming." Defendants'
motion then asserted that during a telephone conversation
with a non-party, defense counsel was told Trefren
Construction is not a Wyoming corporation, and upon
investigation, Defendants confirmed that all corporations
associated with the name Trefren Construction were inactive
or had been dissolved. Specifically, Defendants asserted
Trefren Construction, Inc. became inactive in 2003, Trefren
Construction Company, Inc. dissolved in 1986 and again in
Based on this information, Defendants further asserted
(citations to exhibits omitted):
4. Additionally, the alleged two written contracts attached
to the Plaintiff's complaint contain signature pages in
which the first dated May 31, 2013 is signed as "Trefren
Construction Co. by Tim N. Trefren its owner", and the
second contract dated June 30, 2013 is signed as
"Trefren Construction Co. by Tim Trefren its
5. Wyoming Statute § 17-16-1405 states that a dissolved
corporation technically continues in a corporate existence,
however "may not carry on any business except that
appropriate to wind up and liquidate its business and affairs
. . ." Id.
6. As such, the Plaintiff's allegations that it entered
into any type of agreement or contract in 2013, cannot be
supported [by] facts because there was no such entity.
7. Additionally, the "alleged plaintiff" is not a
recognized entity under Wyoming law and has no statutory
authority to sue in the State of Wyoming.
8. Because the alleged plaintiff is not a valid entity, nor
was it a valid entity at the time of the alleged written
contract, this matter cannot go forward because there is no
party of interest on the plaintiff's side. As such, the
Defendants respectfully request that the matter be dismissed.
* * * *
12. If the Court does not dismiss this matter, in the
alternative, the Defendants respectfully request that the
Court vacate the current scheduling order and trial date
immediately until additional briefing can be done on this
Defendants attached to their motion to dismiss the relevant
page of Trefren Construction's complaint and the
signature pages of the parties' contracts, which
contracts had been attached to the complaint. Defendants also
attached several documents downloaded from the website for
the Wyoming Secretary of State's Office and an affidavit
from defense counsel's legal assistant concerning the
downloaded documents and her contact with the Secretary of
On November 23, 2015, three days following the filing of
Defendants' motion to dismiss, Trefren Construction filed
a Motion for Substitution of Party pursuant to W.R.C.P.
25(a), which rule governs substitutions upon the death of a
party. The motion stated, in part:
1. At the time this case was filed, the original named
plaintiff was Trefren Construction Co., which, according to
The Estate of Timothy Nelson Trefren was held as a sole
proprietorship by Timothy Nelson Trefren.
2. Timothy Nelson Trefren died on April 23, 2015.
3. As a result of the death of Timothy Nelson Trefren, the
original named plaintiff Trefren Construction Co. was
transferred to The Estate of Timothy Nelson Trefren.
4. The Estate of Timothy Nelson Trefren now wishes to proceed
with the above captioned case as successor to Trefren
* * * * WHEREFORE, Movant prays that The Estate of Timothy
Nelson Trefren be substituted in place and stead of the
original plaintiff Trefren Construction Co. as the named
Defendants opposed the motion to substitute the Estate of
Timothy Nelson Trefren (the Estate) as plaintiff, arguing
Rule 25(a) did not apply because no party to the action had
died. They also asserted they would be prejudiced by the
substitution because had they known Trefren Construction was
not a corporation, they would have asserted additional claims
for breach of fiduciary duty, conflict of interest, and
breach of contract.
On December 2, 2015, the district court entered an order
vacating the January 19, 2016 trial date and setting
deadlines for briefing on Defendants' motion to dismiss.
In accordance with that schedule, Trefren Construction filed
a response to Defendants' motion to dismiss. On that same
date, Trefren Construction also filed a motion for leave to
amend its complaint to substitute the Estate as plaintiff.
In arguing against Defendants' motion to dismiss, Trefren
Construction took the position that W.R.C.P. 17(a) was, under
the circumstances, not a ground for dismissal but was instead
a basis for substituting the Estate. Trefren Construction
argued that whether viewed singularly or in combination,
Rules 17(a), 21, 25 and 15(a) "readily allow the
substitution of The Estate of Timothy N. Trefren as the real
party in interest in this case." In support of this
argument, Trefren Construction attached an affidavit by
Timothy R. Trefren, the son of decedent, Timothy N. Trefren.
That affidavit stated, in part:
1. My father, Timothy N. Trefren, started Trefren
Construction Co. and has always been the owner of the
2. My father, Timothy N. Trefren was also a manager of the
business and handled all of the "office" work,
including the licenses, permits and taxes for the business.
3. I was also a manager of Trefren Construction Co. and
handled aspects of the "field" work for the