Young v. HAC, LLC, 24 P.3d 1142 (Wyo. 2001)

Jason A. YOUNG, Appellant (Plaintiff),

v.

HAC, LLC d/b/a Benham’s, Appellee (Defendant).

No. 00–187. | May 31, 2001.

Frank R. Chapman and Thomas A. Valdez of Beech Street Law Office, Casper, WY, for Appellant.

Patrick T. Holscher of Schwartz, Bon, Walker & Studer, Casper, WY, for Appellee.

Before LEHMAN, C.J., and GOLDEN, HILL, and KITE, JJ.

Opinion

GOLDEN, Justice.

[¶ 1] In this personal injury action, Appellant Jason A. Young (Young) alleged Appellee HAC, LLC (HAC), negligently caused the personal injuries that Young suffered when assaulted by another customer while both patronized HAC’s business. A jury returned a verdict finding that HAC was not negligent. During trial, Young had attempted to enter into evidence the sworn statement of the customer who had assaulted Young and caused his injuries. Young appeals the jury verdict alleging that the trial court erred when it ruled that the assaulting customer’s sworn statement was hearsay that was inadmissible as a statement against interest, W.R.E. 804(b)(3), or under the catchall exception, W.R.E. 804(b)(6). We hold that the trial court did not err in ruling the sworn statement inadmissible.

ISSUES

[¶ 2] Young presents this sole issue for our review:

1. Did the District Court commit reversible error by barring the sworn statement of Travis Kidd to be admitted into evidence as an exception to the hearsay rule?

HAC believes the issue is:

Is a sworn statement by an assailant admissible in its entirety under W.R.E. 804(b)(3) or W.R.E. 804(b)(6) when that assailant has already been sentenced for the assault and when the party taking the statement intentionally chooses not to preserve the assailant’s testimony for trial through a deposition?

FACTS

[¶ 3] HAC operates a restaurant and tavern called Benhams. On February 18, 1995, Young and friends were at Benhams to hear a band. Travis Kidd was also there with his girlfriend and friends. Kidd, apparently upset with his girlfriend, was disruptive, abusive, and threatening. After telling his group that he was going to hit the next person that walked by, Kidd attacked Young as Young walked by on his way out of the establishment, severely injuring him. Kidd was charged with and sentenced for aggravated assault.

[¶ 4] On March 7, 1997, Young filed suit against HAC, and HAC filed cross-claims against Kidd. Trial was set for May 24, 1999. HAC’s suit against Kidd was dismissed in January of 1998. Kidd gave a sworn statement to Young’s attorney on July 8, 1997. Although Kidd’s attorney was present during the making of the sworn statement, HAC’s attorney had not been notified and was not present. The civil trial was rescheduled for March 13, 2000, and on February 24, 2000, Young issued a trial subpoena for Kidd. Kidd could not be located, and the subpoena was not served.

[¶ 5] On March 10, 2000, Young notified HAC that Kidd was unavailable as a witness and Young intended to read Kidd’s sworn statement into evidence at trial. HAC objected, and, on March 14, after trial had begun, the trial court heard oral arguments on the issue. Ruling from the bench, the court analyzed the application of W.R.E. 804(b)(3) and (6), and found it relevant that Young had failed to take Kidd’s deposition. The trial court denied admission of the sworn statement. The jury returned a verdict finding HAC had not been negligent. This appeal followed.

DISCUSSION

Standard of Review

^{[1] [2] [3]} [¶ 6] Admission of evidence, including the admission of hearsay, is within the sound discretion of the trial court; we will not disturb evidentiary rulings unless the appellant demonstrates a clear abuse of discretion. Brown v. Michael Pryor, M.D., P.C., 954 P.2d 1349, 1350 (Wyo.1998).

[T]he core of our inquiry must reach “the question of reasonableness of the choice made by the trial court.” Vaughn v. State, 962 P.2d 149, 151 (Wyo.1998). “Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously.” Id. (quoting Byerly v. Madsen, 41 Wash.App. 495, 704 P.2d 1236, 1238 (1985)); Basolo, 907 P.2d [348] at 353 [Wyo. 1995]. We must ask ourselves whether the district court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious.

Carlton v. Carlton, 997 P.2d 1028, 1031 (Wyo.2000).

W.R.E. 804

[¶ 7] W.R.E. 804 states in relevant part:

(a) Definition of unavailability.—“Unavailability as a witness” includes situations in which the declarant:

* * * *

(5) Is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.

* * * *

*1145 (b) Hearsay exceptions.—The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

* * * *

(3) Statement Against Interest.—A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.

* * * *

(6) Other Exceptions.—A statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it, his intention to offer the statement and the particulars of it, including the name and address of the declarant.

[¶ 8] Young contends that the trial court abused its discretion when it failed to consider Kidd’s exposure to civil liability when assessing the evidence as a statement against interest and when it decided that the statement did not meet the trustworthiness requirements of W.R.E. 804(b)(6), the catchall exception. HAC contends that although the court properly ruled on the merits, Young’s failure to depose Kidd precludes admission of a sworn statement that has not been subject to cross-examination. We first address W.R.E. 804’s availability requirement.

A. Availability

[¶ 9] Compliance with W.R.E. 804(a) is required before the hearsay exceptions of W.R.E. 804(b) can be applied. We will not determine if the substantive requirements of W.R.E. 804(b) were met, unless the threshold eligibility of the unavailability request is demonstrated. Williams v. Collins Communications, Inc., 720 P.2d 880, 886 (Wyo.1986). In its ruling from the bench, the trial court did not decide whether Young’s attempts to subpoena Kidd complied with W.R.E. 804(a), and, because we affirm on other grounds, we need not consider the issue on our own. The trial court did consider Young’s failure to depose Kidd as a factor that weighed against admitting the sworn statement under either of the two exceptions.

^[4] [¶ 10] Under the federal rules, an obligation to obtain a deposition exists pursuant to F.R.E 804(a)(5), which states:

(a) Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant-

* * * *

(5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant’s attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant’s attendance or testimony) by process or other reasonable means.

(emphasis added). See also United States v. Olafson, 213 F.3d 435, 442 n. 3 (9th Cir.2000). Federal courts interpret the emphasized phrase as requiring an attempt to depose a witness, or the court will not find the witness is unavailable and consider admission under the the exceptions in subdivision (b)(2), (3), or (4). Under Wyoming’s rules, W.R.E. 804(a)(5) no longer includes this phrase, and we need not consider whether Young had an obligation to depose Kidd before attempting to introduce his statement under W.R.E. 804(b)(3). We agree, however, that the lack of opportunity for cross-examination such as would have been available by deposition may *1146 be a factor the trial court can properly consider for admitting statements under the catchall exception, W.R.E. 804(b)(6). Although deposition testimony is also considered hearsay, it may be admissible under either the rules of civil procedure or W.R.E. 804(b)(1). Brown, 954 P.2d at 1351.

B. W.R.E. 804(b)(3), Statement Against Interest

^[5] [¶ 11] Hearsay is defined as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” W.R.E. 801(c). A “statement” is an oral or written assertion or nonverbal conduct intended as an assertion. W.R.E. 801(a). The word “statement” means “a single declaration or remark,” rather than “a report or narrative,” so that when ruling on the admissibility of a narrative, we must break down the narrative and determine the separate admissibility of each “single declaration or remark.” State v. Phillips, 194 W.Va. 569, 461 S.E.2d 75, 91 (1995); see Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 2434–35, 129 L.Ed.2d 476 (1994) (discussing hearsay in the context of F.R.E. 804(b)(3) exception for statements against interest).

Kolb v. State, 930 P.2d 1238, 1245–46 (Wyo.1996).

^[6] [¶ 12] Here, Young presented Kidd’s lengthy sworn statement to be read into evidence, and the trial court determined that because it contained a number of statements describing what other people believed and saw, it was inadmissible for lack of foundation. Our review indicates that the record supports the trial court’s view that nearly all of the sworn statement, which is well over twenty-five pages, primarily consists of statements that are not statements against interest, but are inadmissible narrative.

[¶ 13] Considering the admissibility of each “single declaration or remark” as we must, we do see that Kidd admits that he assaulted Young; however, as Young acknowledges, Kidd admitted it after he had been tried and convicted for that crime. Consequently, the only liability at stake was civil liability. Young contends that the HAC’s pending cross-claim against Kidd qualifies the entire statement as admissible as a statement against interest. HAC contends that Kidd, having already admitted to criminal liability, which then became a matter of public record, did not increase his civil liability, but, instead, was actually attempting to enter an exculpatory statement. See Johnson v. State, 930 P.2d 358 (Wyo.1996).

[¶ 14] The record shows that the trial court received and considered written memorandum supporting each parties’ arguments and heard oral argument. Having considered written and oral argument, the trial court determined that the sworn statement was not a statement against interest and ruled it was inadmissible hearsay. Our review indicates that the record supports the decision to exclude the entire sworn statement. Although a single statement within the entire statement was an admission that he attacked Young, Kidd provided the entire statement to exculpate himself from liability, and it is not admissible under W.R.E. 804(b)(3), the statement against interest exception.

C. W.R.E. 804(b)(6), the Catchall Exception

^{[7] [8]} [¶ 15] Young contends that this statement met all requirements for admission. HAC contends that Young failed to give HAC adequate notice that it intended to introduce the statement under this exception, failed to prove unavailability, and the trial court properly ruled the sworn statement did not possess circumstantial guarantees of trustworthiness. We have identified the following as requirements for admission under W.R.E. 804(b)(6):

First, the declarant must be unavailable. Second, the adverse party must either have been given pretrial notice or a sufficient opportunity to prepare for and contest the admission of the hearsay. Third, the truth of the matter asserted must be evidence of a material fact. Fourth, the hearsay statement must be more probative than any other evidence which could be procured through reasonable efforts. Fifth, and finally, the statement must be supported by circumstantial guarantees of *1147 trustworthiness; this may be established either through other corroborating evidence or by considering the motivation and/or behavior pattern of the declarant.

Johnson, 930 P.2d at 366 (quoting Hopkinson v. State, 632 P.2d 79, 131–32 (Wyo.1981)).

[¶ 16] The record shows that the trial court did not admit this statement because of insufficient notice, and decided it failed trustworthiness requirements. Because our review of the sworn statement indicates that it was neither worthy of trust nor necessary to effectuate justice, we need not decide whether the trial court properly decided the notice issue.

^[9] [¶ 17] W.R.E. 804(b)(6) applies only in rare and exceptional circumstances. Here, the trial court was concerned about the lack of opportunity to cross-examine a hearsay statement that lacked foundation for its numerous statements about what other people saw and what Kidd believed HAC employees knew and had seen. It properly considered that Kidd was available for a deposition that would have provided the opportunity for cross-examination, and we would note that if Kidd’s testimony was crucial to this case, Young should have deposed him. These factors are sufficient reason to deny admission. We find no abuse of discretion.

[¶ 18] We affirm the trial court’s decision to exclude Kidd’s sworn statement.

Rennard v. Vollmar, 977 P.2d 1277 (Wyo. 1999).

This case is interesting in that it reaffirmed that doctrines set forth in Wyoming's water law a century prior remained the law.

Thomas and Nancy RENNARD, Appellants (Plaintiffs),
v.
Jerry and Rondi VOLLMAR, Appellees (Defendants).

Patrick T. Holscher of Schwartz, Bon, Walker & Studer LLC, Casper, for Appellant.
Keith P. Tyler, Casper, for Appellee.
Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN and TAYLOR,^[*] JJ.
GOLDEN, Justice.
This appeal presents a dispute about an irrigation ditch between two adjoining landowners, the Rennards and the Vollmars, whose respective parcels earlier were joined as one under a unity of ownership. At issue are the rights in the irrigation ditch which runs across the Vollmars' non-irrigated parcel while delivering appropriated water to the Rennards' irrigated parcel. The Rennards' water rights and the irrigation ditch through which the Rennards' appropriated water flows were established when these adjoining parcels were one under a unity of ownership. In 1973, the unified property was divided, creating the two adjoining parcels involved in today's dispute; the two parcels have not been under common ownership since. The precise question we must answer is the applicability in this dispute of the rule stated in Frank v. Hicks, 4 Wyo. 502, 522, 35 P. 475, 480 (1893), reh. denied, 4 Wyo. 502, 35 P. 1025 (Wyo.1894), that "a right to the use of water for the irrigation of land, together with the ditch making such right available, becomes . . . so attached to the land irrigated as to pass by a conveyance of the land without mentioning the water right. . . ." After a bench trial, the district court held that the law of implied easements, not the Frank rule, applied to this dispute; that the Rennards had failed to prove the elements of the law of implied easements and, therefore, their claim of ditch ownership failed; and that the Vollmars owned the ditch. We hold that the district court erred; that the Frank rule applies to this dispute; and that the Rennards, as owners of the irrigated parcel, are owners of and are entitled to reasonable access to the ditch which crosses the Vollmars' non-irrigated parcel. We reverse and remand this case for further proceedings consistent with this decision.

ISSUES

Rennards present this single issue for our review:

Is the means of conveying water attached to a water right such that it passes in a transfer of water right ownership without specific mention of that means of conveyance.

Vollmars restate the issue presented to the Court for review as:

whether or not the tests of implied easement under Wyoming law are applicable to an existing irrigation ditch for which there is no express grant or reservation of easement.

FACTS

The parties' two adjoining parcels are located in Natrona County and were originally one contiguous parcel under one ownership. The Rennard parcel is a portion of the property generally described as the NE¼ of Section 11. The Vollmar parcel is described as the NW¼ of Section 11. While the parcels were under one ownership, farming was established on the Rennard parcel; and it has always been irrigated and received water from an irrigation ditch crossing the entire property, including that part which is now the Vollmar parcel. The irrigation ditch runs across the Vollmar parcel before entering the Rennards' irrigated acreage.
The irrigation ditch apparently was built sometime in the 1940's while both parcels were owned by the Engbergs. The Engbergs irrigated the NE¼ of Section 11 of their land that eventually was sold to the Rennards. In 1964, the unified property was sold to the Schwartzkopfs. In 1967, the Schwartzkopfs were granted water rights for the irrigated land in the NE¼ of Section 11 with priorities of appropriation of July 27, 1934, April 25, 1936, and December 1, 1931. Water was delivered to the irrigation ditch from the Casper-Alcova Irrigation System.
In 1968, the unified property was again sold. After yet another sale in 1969 to the Kellers, the unified property, in 1973, was divided into the two adjoining parcels that exist today, the Kellers selling the irrigated NE¼ of Section 11 (the Rennard parcel) to Bruce and Esther Allen while retaining the non-irrigated NW¼ (the Vollmar parcel). This transfer included "all water allotments and water rights appurtenant thereto," but was silent on the irrigation ditch which crossed the adjoining NW¼ (Vollmar parcel). The Allens sold the NE¼ parcel to Larry and Vicki Jo Allen, who later sold it to the Rennards on November 4, 1994. The Rennards purchased this parcel in order to farm it and intended to irrigate their fields. The contract for sale provided that the Rennards were to be given written permission for access to all the irrigation ditches for the purpose of clean up, preventative work, and the like. No such written permission was provided to Rennards nor was an easement for the ditches included in the deed from the Allens to the Rennards; however, the Rennards closed on their purchase with the Allens and accepted the property. The deed conveying the property was silent on water rights as well as access to the irrigation ditch.
The parcel that the Vollmars ultimately purchased went through a series of transfers that were entirely silent on ditch and water rights, and the record indicates that the Vollmars were not deeded any water rights and are not entitled to any of the water flowing through the irrigation ditch that is part of the Rennards' appropriation from the Casper-Alcova Irrigation System. The Vollmar parcel has never been used for agricultural purposes and is not so used today. The parties do not dispute that there was never an express grant or reservation of easement for the ditch in question in any of the transfers.
Shortly after acquiring their property, the Rennards began to order water from the Casper-Alcova system in order to irrigate their fields. They experienced difficulty receiving the water as it passed through the Vollmar property, and their investigations revealed that the Vollmars had placed irrigation headgates on two reservoirs they had built immediately astride the ditch and were taking water from the ditch. Believing the Rennards had no ownership interest in the ditch, the Vollmars denied the Rennards access to their property for maintenance and use of the ditch.
1279*1279 Rennards filed suit alleging intentional destruction of property, conversion, negligence, and prescriptive easement. They sought both damages and injunctive relief. The Vollmars filed a counterclaim for trespass and property damage. Both parties moved for summary judgment. In denying the Rennards' motion, the district court stated that

[p]laintiffs' argument that "The Ditch Follows the Right," citing Frank v. Hicks, 4 Wyo. 502, 35 P. 1025 (Wyo.1893), would appear to have logical application to the case at bar. However, it would also appear essential to the claims asserted in this case for Plaintiffs to have a legally established easement or property right upon the property of the Defendants in order to sustain any of their claims.

The Vollmars were granted summary judgment on the issue of a prescriptive easement, all other summary judgment motions were denied, and the matter proceeded to bench trial. The district court issued findings of fact and concluded that the issue was whether the Rennards had an implied easement in the ditch. The district court found that the Rennards' use was permissive, and it was feasible for them to build their own ditch. The district court concluded, as a matter of law, no implied easement was intended at the time of the property division.

DISCUSSION

Standard of Review
When a trial court in a bench trial makes express findings of fact and conclusions of law, we review the factual determinations under a clearly erroneous standard and the legal conclusions de novo. Stansbury v. Heiduck, 961 P.2d 977, 978 (Wyo. 1998); Springer v. Blue Cross and Blue Shield of Wyoming, 944 P.2d 1173, 1176 (Wyo.1997).

Applicable Law
The Rennards contend that the district court erred, as a matter of law, in applying the law of implied easements to resolve this dispute. They assert that long ago, in Frank, this Court adopted for this state the rule that a water right and the ditch which makes that right available to the land irrigated become so attached to the land irrigated as to pass by a conveyance of the land irrigated even though the conveyance is silent on the water right and ditch. In opposition, the Vollmars contend that the district court properly determined that the evidence showed that (1) Bruce and Esther Allen and the Kellers, at the time the unified property was divided, had no intention to create a ditch easement across the non-irrigated NW ¼ parcel; and (2) the use of the ditch by the Rennards' predecessors in title had always been permissive. The Vollmars assert that, as a matter of law, no implied or prescriptive easement existed.
We hold that the rule announced in Frank provides the applicable law with which to resolve this dispute. Among many other issues, Frank considered whether property conveyed to a trust by deed included water rights and irrigating ditches. Judgment creditors had foreclosed upon the trust deed, and one judgment creditor in a separate action was seeking to sell the water rights and irrigation ditches. The trustee presented the issue whether a right to the use of water for the purpose of irrigation, together with the necessary conduit for delivering the water to the place where it is used, is appurtenant to the land irrigated. This Court stated:

The discussion should not be confined to the meaning or proper use of the word "appurtenant" or "appurtenance." The real question is one of vastly more importance than a mere question of the proper use of words. It is, substantially, whether a right to the use of water for the irrigation of land, together with the ditch making such right available, becomes in any way so attached to the land irrigated as to pass by a conveyance of the land without mentioning the water right, and to become subject to the liens and liabilities which attach to the land, and entitled to the exemptions to which the land is entitled.

Frank, 4 Wyo. at 522, 35 P. at 480.
In considerable detail, this Court in Frank analyzed the effect of a decision that the water right would not pass by a sale and conveyance of the land that did not mention the water right, and eloquently captured the issue's substance:

1280*1280 If this means that [the owner of the unified property] himself, or any one claiming the water right under him by deed executed by him after he parted with the land, could deprive the parties of the use of the water, it is a startling proposition. We cannot ignore, as judges, what we know, as men, of the general condition of the country. As residents of the arid region, interested in its business conditions, we know—and as lawyers and judges, deriving our knowledge from reported cases, we know—that there are vast quantities of agricultural land cultivated in the arid region, and made valuable by the use of water, the right to which depends upon a conveyance of the land without mentioning water, water right, or irrigating ditch. Land and water together are of great value. The value of the land without the use of the water is trivial. And the conditions are such, in many instances, that, if the owner of the land is deprived of the use of the water to which he has been accustomed, he cannot procure other water. In other instances it can be done only at great expense.

Frank, 4 Wyo. at 524, 35 P. at 481. Our attention is caught by several other passages as well. In the following passage, this Court spoke favorably of the widely approved common law doctrine "[w]hoever grants a thing grants, by implication, that which is necessary to the beneficial use and enjoyment of the thing granted." Id. at 526, 35 P. at 482. This Court said:

To take away the water right by which agricultural land is irrigated in the arid region leaves the land more nearly useless and valueless than a mill without a kiln, or a saw mill without a lumber yard, or a water mill without a dam. The water mill may be moved and used elsewhere. The land cannot be. Another kiln or lumber yard might be provided at comparatively small expense. In most of the arid region, water rights furnishing sufficient water for the irrigation of farms have become quite valuable, and difficult to obtain, in many localities, at any reasonable expense. The pipes used to conduct water to a dwelling house would pass at common law by a conveyance of the house, because necessary to the use and enjoyment of the house in the usual manner, though they extend far beyond the premises granted, and might be replaced at small expense. The water right also passes. Whatever is necessary to the beneficial use and enjoyment of the thing granted, whether corporeal or incorporeal, passes, at common law, as incident or "quasi appendant" to the thing granted; but we must not call them appurtenances, if they are corporeal things. They then pass as part and parcel of the grant.

Id.
Later in the opinion, after reviewing cases from California, Montana, Washington, and Oregon, this Court accepted the prevailing view of the courts in the arid region states "that a water right becomes appurtenant to the land upon which the water is used, and the ditch, water pipe, or other conduit for the water becomes attached to the land, either as appurtenant or incident to the land, and necessary to its beneficial enjoyment, and therefore becomes part and parcel of the realty." Id. at 531, 35 P. at 484.
As the district court noted, Frank clearly established the precept that "a ditch follows the right;" the question is whether that precept applies within the context of this dispute, i.e., the irrigation ditch crosses the land of one not entitled to any of the water carried by the ditch, and the water right and the ditch were established before the unified property was divided. The district court chose, incorrectly, to find the answer in the intent of the parties at the time the unified property was divided. Frank teaches that the answer is found in the intent of the party who established the water right and the ditch before the unified property was divided. That intent is that the water right and the ditch for the water become part and parcel of the land irrigated. Accord, Bard Ranch, Inc. v. Weber, 538 P.2d 24, 34 (Wyo.1975) ("It is necessary and usual in this state for water appropriations to be served by ditches, or an interest in ditches, and we can see no purpose to be served by anatomizing the interest in a ditch necessary to serve a water right into finer categories. If a person has a right to convey water through a ditch, he owns an interest in that ditch or a share of the ditch 1281*1281 to the extent of the water right he is entitled to convey through it."). See also, Wallis v. Luman, 625 P.2d 759, 765-66 (Wyo.1981); White v. Bd. of Land Comm'rs, 595 P.2d 76, 80-81 (Wyo.1979); Condict v. Ryan, 79 Wyo. 211, 227-29, 333 P.2d 684, 689-90 (Wyo.1958); Big Goose & Beaver Ditch Co. v. Wallop, 382 P.2d 388, 392-93 (Wyo.1963); and Sturgeon v. Brooks, 73 Wyo. 436, 456, 281 P.2d 675, 682 (Wyo.1955).
We hold, therefore, that the Vollmars do not have adjudicated water rights and are not entitled to any of the Rennards' appropriated water received, via the ditch, from the Casper-Alcova Irrigation System; the Rennards have exclusive ownership of the ditch and the Vollmars are not entitled to divert any water from that ditch to their reservoir; and the Rennards' ownership of the ditch permits them to enter the Vollmars' land to maintain and use the existing ditch.
We reverse the district court's order and remand with directions that judgment on this issue be entered for Rennards and for trial on the remaining claims.
[*] Retired November 2, 1998.

Lex Anteinternet: Makinen v. PM PC, 893 P.2d 1149 (Wyo. 1995)

Lex Anteinternet: Makinen v. PM PC, 893 P.2d 1149 (Wyo. 1995): This case was a victory for me at the Wyoming Supreme Court, but the holding in it  has since been overruled in later Wyoming case law....

Amrein v Wyoming Livestock and Griggs 1993 WY 65, 851 P.2d 769 (Wyo. 1993)

Terrence AMREIN,

Appellant (Plaintiff),

v.

WYOMING LIVESTOCK BOARD; N.R. Swanson, Wyoming State Veterinarian;

 Ken J. Griggs, D.V.M.; and Richard Johnson, D.V.M.,

Appellees (Defendants).

Appeal from District Court, Teton County, Elizabeth A. Kail, J.

Terrence Amrein, pro se.
Joseph B. Meyer, Atty. Gen., Dennis Coll, Senior Asst. Atty. Gen., for appellee Swanson.
Patrick T. Holscher, Schwartz, Bon, McCrary & Walker, Casper, for appellees Griggs and Johnson.
Before MACY, C.J., and THOMAS, CARDINE and GOLDEN, JJ., and URBIGKIT, J., Retired.
THOMAS, Justice.
[¶1]      There are two significant issues in this case arising out of the granting of motions to dismiss, filed pursuant to Wyo.R.Civ.P. 12(b)(6). The first issue questions whether alleging a timely claim with specificity is essential to pleading the jurisdiction of the trial court in a claim asserted pursuant to the Wyoming Governmental Claims Act (Governmental Claims Act).¹ The second issue questions whether the trial court, by considering a copy of a claim attached to a Motion to Dismiss filed by the State of Wyoming, converted motions to dismiss filed by individual defendants into motions for summary judgment, thus invoking the requirement that the plaintiff be afforded a ten-day notice of such conversion prior to hearing. We hold the plaintiff failed to allege the jurisdiction of the trial court to address the claim against the State of Wyoming, and the trial court's Order of Dismissal Nunc Pro Tunc is affirmed insofar as it orders dismissal of the claim against the State of Wyoming. We also hold the appeal of the Order of Dismissal Nunc Pro Tunc as to the individual defendants will be dismissed for failure to comply with the rules of this court relating to cogent argument and relevant authority, remarking for the edification of the bar that, if the issue were properly before the court, it is likely the motion to dismiss would be treated as converted into a motion for summary judgment. The Order of Dismissal Nunc Pro Tunc is affirmed.
[¶2]      It is to be noted that Terrence Amrein (Amrein) appears in this case representing himself, and he presents the following statement of the issues in his Revised Brief of Appellant with Appendix:

I. The Ninth District Court erred in dismissing the case when Issues of Material Fact Existed.

II. The Ninth District Court Erred in Dismissing the case when all facts had not been examined and in effect gave Summary Judgment without proper inputs.

III. The Plaintiff's Constitutional Rights have been violated and Due Process denied the Plaintiff.

IV. The District Court's Findings and Conclusions were Erroneous in Several Respects.

In the Brief of Appellee Dr. Norm Swanson, DVM, the only issue stated is the following:

I. The lower court properly dismissed the Appellant's action for failure to timely file a claim pursuant to the Wyoming Governmental Claims Act.

In the Brief of Appellees Kenneth J. Griggs, DVM and Richard Johnson, DVM, this statement of the issues appears:

I. ISSUES PRESENTED FOR REVIEW

The issue for review concerning the appellees, Kenneth J. Griggs, DVM, and Richard Johnson, DVM, is whether the appellant filed this action within the time limit imposed by the applicable statute of limitations, W.S. § 1-3-107.

A sub issue exists as to whether the appellant has satisfied his burden of submitting a brief with cogent argument and pertinent authority.

[¶3]      Early in 1989, the State of Wyoming seized several horses and cows that were in Amrein's possession. The justification for that seizure was Amrein's treatment of the animals as reflected in Amrein v. State, 836 P.2d 862 (Wyo. 1992). This case focuses on only one of those animals, an Appaloosa stallion named Rainy Moon Zenith (alternatively called Hi Moon or High Moon). After the stallion was seized and placed in state care, the animal, which was diseased, was euthanised pursuant to an order of Dr. Swanson. The euthanisation occurred on April 15 or 16, 1989. Dr. Griggs and Dr. Swanson were contract veterinarians for the State of Wyoming. They had treated the stallion and Dr. Johnson performed the euthanasia procedure.
[¶4]      Amrein presented an "itemized statement" dated April 17, 1991, in which he sought for the wrongful destruction of "Hi Moon" $500,000 compensation from the State Veterinarian and the Wyoming Livestock Board, apparently proceeding under the Governmental Claims Act. In this civil action, Amrein alleged there was a negligent diagnosis with respect to the stallion, and it was illegally destroyed. In his pro se complaint, Amrein alleged with respect to the filing of a claim under the Governmental Claims Act:

1) This court has jurisdiction and venue is proper under WS 1-3-117.

2) Plaintiffs have made a claim under WS 1-39-113 but have not received a settlement offer to date, nor has the claim been rejected, but we have to file this case now or the statute of limitation will run, and I (we) expect the state to reject the claim.

Appearing initially for both the Wyoming Livestock Board and N.R. Swanson, Wyoming State Veterinarian, the Office of the Attorney General filed a Motion to Dismiss on the ground a timely claim was not filed,² and a copy of a claim presented by an attorney on behalf of Amrein was attached to the Motion to Dismiss. The letter, dated April 17, 1991, asserts that it is "a claim for the wrongful destruction of Hi Moon by that order of Dr. N.R. Swanson made on or about April 15th or 16th, 1989." Amrein filed a Reply to Motion to Dismiss to which he attached various reports of tissue samples, which reflect that the tissue samples were received on April 20, 1989. After filing answers, both Dr. Griggs and Dr. Johnson filed motions to dismiss, raising the statute of limitations. They alleged the injury occurred no later than April 16, 1989, and the complaint was filed on April 22, 1991. Amrein also filed a Reply to Motions to Dismiss by Griggs, and Reply to Motions to Dismiss by Richard Johnson, to which he attached copies of a transcript of testimony in connection with the prior criminal proceeding in which there is testimony the stallion was euthanised on April 15, 1989. The trial court disposed of the cases by granting the respective motions to dismiss, and it is from that resolution, ultimately made in an Order of Dismissal Nunc Pro Tunc, that Amrein has taken this appeal.
[¶5]      We affirm the dismissal with respect to Dr. Swanson, but for a different reason from that urged in the trial court and in Dr. Swanson's brief. Our rule states we can consider the question of jurisdiction upon our own motion and that it is never waived. Board of Trustees of the University of Wyoming v. Bell, 662 P.2d 410 (Wyo. 1983), and cases cited therein. We said in Bell:

[W]e hold that the failure to file a claim under that statute [Wyo. Stat. § 1-39-113] results in a district court having no jurisdiction over an action which is brought if the complaint fails to allege the filing of the claim pursuant to statute.

Bell, 662 P.2d at 415 (emphasis added). In this instance, Amrein alleged the filing of the claim, but we expand upon the rule articulated in Bell and now hold that, in order to invoke the jurisdiction of the district court, such an allegation must encompass a statement of the date the claim was filed to demonstrate the filing of the claim within two years of the date of the "alleged act, error or omission" or, alternatively, the statutory ground for the late discovery of the "alleged act, error or omission." Since Amrein failed to make this allegation, the complaint was subject to dismissal for failure to allege the jurisdiction of the court with specificity. We recognize dismissal is within the discretion of the trial court, and it would generally be appropriate to enter that dismissal without prejudice. Boller v. Key Bank of Wyoming, 829 P.2d 260 (Wyo. 1992); Johnson v. Aetna Casualty and Sur. Co. of Hartford, Connecticut, 608 P.2d 1299 (Wyo. 1980), appeal dismissed, cert. denied, 454 U.S. 1118, 102 S.Ct. 961, 71 L.Ed.2d 105 (1981), reh'g denied, 455 U.S. 1039, 102 S.Ct. 1743, 72 L.Ed.2d 157 (1982); Breazeale v. Radich, 500 P.2d 74 (Wyo. 1972). In this case, it appears from the file that it would be impossible for Amrein to present the requisite allegations and, consequently, we affirm the order of dismissal as to Dr. Swanson.
[¶6]      Turning then to the appeal as it involves Dr. Griggs and Dr. Johnson, we discern no jurisdictional problem with respect to the complaint against them. Instead, we rely upon our articulated rule that, in the absence of the citation of pertinent authority or cogent argument, we will not afford relief to an appellant. Wyo. R.App.P. 5.01 (1978) (now Wyo.R.App.P. 7.01 (1992)).³ While it is permissible under our system for litigants to represent themselves, such litigants do not receive any special benefit in the examination of papers that are presented to this court including briefs. Kipp v. Brown, 750 P.2d 1338 (Wyo. 1988), and cases cited therein. We hold the Revised Brief of Appellant With Appendix is woefully lacking in either the presentation of pertinent authority or cogent argument. Consequently, we invoke our rule that we will not consider the issues that are presented and, for that reason, we affirm the district court.
[¶7]      We add simply as a caveat for the edification of the bar that it appears, in this instance, the trial court considered "matters outside the pleading" in arriving at a decision to dismiss the complaint. In our view, the Wyoming Rules of Civil Procedure demand that the contemplation of a motion to dismiss focus only upon the allegations of the complaint and whether it states a claim. The specific relevant language of Wyo.R.Civ.P. 12(b) (emphasis added) is:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

It is from this premise that we could affirm the dismissal of the complaint as to Dr. Swanson. If, however, the trial court considers other materials, the result is the conversion of the motion to dismiss into a motion for summary judgment, and the rules require, according to our cases, that the plaintiff receive a ten-day notice of the decision to convert the motion to dismiss into a motion for summary judgment so that appropriate responses can be made to the materials apart from the complaint. E.g., Shriners Hospitals for Crippled Children, Inc. v. First Sec. Bank, 835 P.2d 350 (Wyo. 1992); Cranston v. Weston County Weed and Pest Bd., 826 P.2d 251 (Wyo. 1992); Brebaugh v. Hales, 788 P.2d 1128 (Wyo. 1990); Torrey v. Twiford, 713 P.2d 1160 (Wyo. 1986); Kirby Bldg. Systems v. Independence Partnership No. One, 634 P.2d 342 (Wyo. 1981); Wyoming Ins. Dep't. v. Sierra Life Ins. Co., 599 P.2d 1360 (Wyo. 1979).
[¶8]      We hold that the trial court properly dismissed the complaint as to Dr. Swanson because of the failure of the complaint to allege jurisdiction with requisite specificity, and we refuse to consider the issues raised in the appeal with respect to Dr. Johnson and Dr. Griggs for the reasons set forth above.
[¶9]      The Order of Dismissal Nunc Pro Tunc entered in the trial court is affirmed.
URBIGKIT, Justice, Retired, dissenting.
[¶10]   This case provides a continuing examination of the campaign by certain state (including judicial) officials against Terrence Amrein. See Amrein v. State, 836 P.2d 862 (Wyo. 1992).
[¶11]   In the present case, appellant, Terrence Amrein (Amrein), sued state veterinary officials who deliberately destroyed one of his animals suffering from an alleged incurable disease. At the same time, the State was prosecuting Amrein on various charges to which Justice of the Peace William W. Cramer originally sentenced Amrein to eight consecutive six-month sentences and a fine in the amount of $6,000, for a total confinement in county jail of four years. Amrein, 836 P.2d at 863.
[¶12]   In this civil damage case, taken on appeal pro se, Amrein presents two issues: (1) improper grant of summary judgment by the trial court when issues of fact existed, Cordova v. Gosar, 719 P.2d 625 (Wyo. 1986); and (2) insufficiency of the evidence to justify destruction of his property in compliance with state law.
[¶13]   Appellees, as state officials, changed the scope of the appeal attacking the lack of proof of satisfaction of the statute of limitation for professional malpractice, Wyo. Stat. § 1-3-107 (1988), as well as the technical insufficiency of the pro se appellate brief.
[¶14]   This court's majority resolves the case on a basis not submitted by any of the litigants. It is from that adjudicatory readjustment and its failure to provide Amrein due process to litigate his "state taking" claim that I dissent. Implicit in my disagreement is that Amrein's liberty interests were tried in the criminal prosecution by a far from disinterested jury, but he has also been denied even that access in this property deprivation litigation.
[¶15]   The court reaches this stage by creating an entirely new obstacle in the mine field litigants must pass. It is now deemed jurisdictional, in the case of a claim against a state official under the state's general claims statutes, Wyo. Stat. § 1-39-101 through § 1-39-120 (1988 & Cum.Supp. 1992), to allege pleading a date of filing the claim. In other words, to be defensible from a motion to dismiss, it is not now sufficient to allege timely filing or filing, but the date of filing must now be alleged so that adjudicatory review can be pursued on a motion to dismiss premise.
[¶16]   It might be true, as the majority now finds as a fact, that it "would be impossible for Amrein to present the requisite allegations," but it might also be possible, within contested issues found in abundance in this case of human and animal tragedy, to find the opposite. In any event, appellate implementation of this new principle of pleading at this stage as a jurisdictional requirement denies, in my opinion, Amrein due process and access to the courts. Wyo. Const. art. 1, § 6, due process; Wyo. Const. art. 1, § 8, open courts.
[¶17]   I am even less satisfied with the second segment of the majority opinion where, lacking a jurisdictional avenue for appellate disposition, the decision falls back into the pertinent authority and cogent argument disability for this pro se litigant.
[¶18]   Amrein contended that the litigation disposition was summary judgment. In view of the "evidence" in the record, I would agree. If this was a summary judgment conversion, W.R.C.P. 56, from a motion to dismiss, W.R.C.P. 12(b)(6), I would also accept the pro se litigant's presentation as adequate to present his argument and contention regarding summary judgment disposition without the necessity to recite the multitude of Wyoming cases directed to a principle of non-trial of issues of fact in summary judgment. See, in recent review, Drake v. Winkler, 838 P.2d 1177 (Wyo. 1992) and Stalkup v. State Dept. of Environmental Quality (DEQ), 838 P.2d 705 (Wyo. 1992). In general analysis, see also Cordova, 719 P.2d 625.
[¶19]   Consequently, I respectfully dissent and continue searching for a requirement for our courts to provide an avenue and access to justice without indispensably requiring participation by lawyers. Osborn v. Emporium Videos, 848 P.2d 237 (Wyo. 1993).

FOOTNOTES

¹ Wyo. Stat. §§ 1-39-101 to -120 (1988) (Supp. 1992).
² Wyo. Stat. § 1-39-113 (Supp. 1992) provides, in pertinent part:
(a) No action shall be brought under this act against a governmental entity unless the claim upon which the action is based is presented to the entity as an itemized statement in writing within two (2) years of the date of the alleged act, error or omission, except that a cause of action may be instituted not more than two (2) years after discovery of the alleged act, error or omission, if the claimant can establish that the alleged act, error or omission was:
(i) Not reasonably discoverable within a two (2) year period; or
(ii) The claimant failed to discover the alleged act, error or omission within the two (2) year period despite the exercise of due diligence.
The failure to file a timely claim under this statutory provision is an absolute bar to suit against the governmental entity. Duran v. Board of County Comm'rs of Sweetwater County, 787 P.2d 971 (Wyo. 1990); Davis v. City of Casper, 710 P.2d 827 (Wyo. 1985); Lafferty v. Nickel, 663 P.2d 168 (Wyo. 1983).
³ Our cases are legion in which we have stated that we need not consider errors asserted on appeal, but which are not supported by available authority or cogent argument. See, e.g., Triton Coal Co., Inc. v. Mobil Coal Producing, Inc., 800 P.2d 505 (Wyo. 1990); Kipp v. Brown, 750 P.2d 1338 (Wyo. 1988); Hance v. Straatsma, 721 P.2d 575 (Wyo. 1986); Young v. Hawks, 624 P.2d 235 (Wyo. 1981); Wyoming Timber Products Co. v. Crow, 500 P.2d 683 (Wyo. 1972); Nichols v. Pangarova, 443 P.2d 756 (Wyo. 1968); and Stolldorf v. Stolldorf, 384 P.2d 969 (Wyo. 1963).