Mullinax Concrete Service Co. v. Zowada

2012 WY 55, 275 P.3d 474, 2012 WL 1202036, 2012 Wyo. LEXIS 60
CourtWyoming Supreme Court
DecidedApril 11, 2012
DocketS-11-0213
StatusPublished
Cited by5 cases

This text of 2012 WY 55 (Mullinax Concrete Service Co. v. Zowada) is published on Counsel Stack Legal Research, covering Wyoming Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mullinax Concrete Service Co. v. Zowada, 2012 WY 55, 275 P.3d 474, 2012 WL 1202036, 2012 Wyo. LEXIS 60 (Wyo. 2012).

Opinion

VOIGT, Justice.

[T1] 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. 1 Id. at T 28, 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. 2 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

[T2] 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

[T3] The facts underlying the Zowadas' petition for establishment of a private road *476 and the Commission's original decision are described in detail in Mullinax I, 2010 WY 146, 14] 4-15, 248 P.3d at 188-89, 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 14, 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 1 28, at 192.

[T4] 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

The question of whether a statute applies retroactively is a question of law and, "(als 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, "[we will affirm an agency's legal conclusion only if it is in accordance with the law." Id. at 1 26, at 562 (quoting Diamond B Servs., Inc. v. Rohde, 2005 WY 130, ¶ 12, 120 P.3d 1031, 1038 (Wyo.2005)).

DISCUSSION

[T6] Generally, "retrospective application of a statute to events occurring before enactment of a statute is not favored." Johnson v. Safeway Stores, Inc., 568 P.2d 908, 914 (Wyo.1977). With one exception, this Court steadfastly applies this rule, and the rule has also been adopted by the legislature in a "savings statute." Wyo. Stat. Ann. § 8-1-107 (LexisNexis 2011) states:

If a statute is repealed or amended, the repeal or amendment does not affect pending actions, prosecutions or proceedings, civil or criminal. If the repeal or amendment relates to the remedy, it does not affect pending actions, prosecutions or proceedings, unless so expressed, nor shall any repeal or amendment affect causes of action, prosecutions or proceedings existing at the time of the amendment or repeal, unless otherwise expressly provided in the amending or repealing act.

[T7] The plain language of Wyo. Stat. Ann. § 8-1-107 means that an amendment to a statute will not affect pending actions, unless the legislature specifically states that it is to apply retroactively. See Wyo. Ref. Co. v. Bottjen, 695 P.2d 647, 650 (Wyo.1985). The legislature did not include language in the current version of Wyo. Stat. Ann. § 24-9-101 that would lead anyone to believe that the statute is to be applied retroactively. Additionally, the session laws for both the 2008 and 2009 amendments state that the amendments go into effect on July 1 of each respective year, and do not give any indication that the amendments should apply to pending actions. 2008 Wyo. Sess. Laws, ch. 58, § 1; 2009 Wyo. Sess. Laws, ch. 188, § 1. The legislature has not expressed that the amended provisions of Wyo. Stat. Ann. § 24-9-101 apply retroactively, and, therefore, under the general rule, the statute applies as it existed in 2005.

[T8] Despite the general rule and the savings statute, there is one exception that may be applied under the appropriate circumstances. We have recognized that, if the amendment relates to procedure, it may be applied retroactively. Aden v. State, 761 P.2d 88, 90 (Wyo.1988); see also Johnson, 568 P.2d at 915. In Aden, the court determined that a statute may be applied retroactively without legislative direction when to do otherwise would "result{ ] in a manifest injustice." 761 P.2d at 90. The court held that, since the amendment to the statute in question was procedural, and the amended statute was more objective and rational than the *477 previous form of the statute, the amendment should be applied retroactively. Id.

[T9] To determine whether the Aden exception applies, we must first determine whether the amendments to Wyo. Stat. Ann. § 24-9-101 are substantive or procedural in nature. As we have previously ree-ognized, the distinction is not always clear. State ex rel. Frederick v. Dist. Court of the Fifth Judicial Dist. in and for Big Horn Cnty., 399 P.2d 583, 585 (Wyo.1965). However, we have explained:

"* * * The substantive law is that part which creates, defines, and regulates rights as opposed to adjective or remedial law, which prescribes the method of enforcing rights or obtaining redress for their invasion. * * *" Miz v. Board of Com'rs of Nez Perce County, 18 Idaho 695, 112 P. 215, 220 [ (1910) ]. "Courts generally agree in defining the terms 'substantive' and 'adjective' that 'substantive' law creates, defines, and regulates rights as opposed to 'adjective' or 'procedural' law which provides the method of enforcing and protecting such duties, rights, and obligations as are created by substantive law. * * *" In re McCombs' Estate, Ohio Prob., 80 N.E.2d 578, 586 [ (1948) ].

Id.; see also In re Estate of Boyd,

Related

Natusha Lewis v. Brenda G. Wolfe
Wyoming Supreme Court, 2026
Christopher Ray Counts
2014 WY 151 (Wyoming Supreme Court, 2014)
Zowada v. Mullinax Concrete Service Co.
2014 WY 121 (Wyoming Supreme Court, 2014)
Merlin H. Zowada and Lori Zowada
2014 WY 121 (Wyoming Supreme Court, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
2012 WY 55, 275 P.3d 474, 2012 WL 1202036, 2012 Wyo. LEXIS 60, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mullinax-concrete-service-co-v-zowada-wyo-2012.