Bird v. Rozier

• Decision Date: 03 December 1997
• Docket Number: No. 95-232,95-232
• Parties: Chester L. BIRD, Appellant (Plaintiff), v. Steven ROZIER, in his official capacity and individually, and Monty Trenary, in his official capacity and individually, Appellees (Defendants).
• Court: Wyoming Supreme Court

Page 888

948 P.2d 888

Chester L. BIRD, Appellant (Plaintiff), v. Steven ROZIER, in his official capacity and individually, and Monty Trenary, in his official capacity and individually, Appellees (Defendants).

No. 95-232.

Supreme Court of Wyoming.

Dec. 3, 1997.

Chester L. Bird, pro se.

Hugh Kenny, Senior Assistant Attorney General, and Joanna J. Shaff, Law Student/Extern, for Rozier and Trenary in their individual capacities; Ann M. Rochelle of Williams, Porter, Day & Neville, Casper, for Rozier in his official capacity; and Judith Studer and Kathleen J. Doyle of Schwartz, Bon, Walker & Studer, Casper, for Trenary in his official capacity.

Before TAYLOR, C.J., and THOMAS, MACY, GOLDEN and LEHMAN, JJ.

LEHMAN, Justice.

Chester L. Bird, appellant, filed a civil complaint against Kathy Heppner, who allegedly deposited his paycheck into her account without his permission, as well as Officer Steven Rozier and Deputy Monty Trenary, whom he alleges breached their duty to investigate Heppner's actions. He sought declaratory relief and compensatory, nominal and punitive damages. The district court dismissed the action for failure to state a claim upon which relief could be granted pursuant to W.R.C.P. 12(b)(6). Bird appeals only the dismissal of the claim against the officers.

We affirm.

Bird, acting pro se, presents the issue as follows:

Was the Sixth Judicial District Court in error when it adopted and entered p 2 of In his consolidated reply brief, Bird restates the issues in the following way:

its Order of Dismissal, upon false statements of facts interposed by the appellees, through their individual capacity counsel; less than an honest representation of pertinent legal authorities by appellees, through their individual capacity counsel; and when the Honorable Dan R. Price II was barred from continued action in the case, upon appellant filing a peremptory disqualification?

I. The appellees were subject to liability for their refusal and/or failure to investigate Ms. Heppner for forgery.

II. The trial court did improperly consider "evidence" from outside the complaint when granting appellees' motions to dismiss.

III. Appellant's motion for peremptory disqualification as to Judge Price was timely.

FACTS

Bird alleges in his complaint that on February 23, 1994, Kathy Heppner wrote her personal checking account number on the back of Bird's payroll check and deposited the check into her account. Bird states that Heppner had previously been advised by Julie Bird that she was not to cash Bird's payroll checks, but to send them to him at the Campbell County Detention Center. After Heppner cashed Bird's check on February 23, Julie Bird contacted Officer Steve Rozier of the Gillette Police Department and Deputy Monty Trenary of the Campbell County Sheriff's Office on behalf of Bird to request an investigation of Heppner's conduct. According to Bird, both Rozier and Trenary refused to investigate Heppner on the basis that Bird was a convict and not entitled to enforcement of the law on his behalf.

Bird filed this civil action against Heppner, Rozier and Trenary. Bird claims that Heppner breached her legal and moral duty to act in accordance with his request not to cash his paycheck. He sought from Heppner compensatory damages of $392.05 for replacement of his payroll check, pre- and post-judgment interest, and punitive damages of $1,000. Bird states that the police officers' failure to investigate rendered them accessories after the fact to Heppner's forgery of his paycheck in violation of W.S. 6-3-602. He claims that the officers had a legal, moral and ethical duty to investigate Heppner's actions, that their failure to investigate and cause Heppner to be prosecuted constituted a conscious and intentional wrongdoing against Bird, that they breached their duties to abide by and to uphold and enforce the laws of Wyoming, and that their conduct was legally and professionally negligent and careless, as well as unconscionable. He sought judgment against the officers as follows:

(a) A Declatory [sic] Order, setting forth that the defendants had the legal, moral and/or ethical duty to abide by or uphold and enforce the laws of the State of Wyoming and that the conduct of the defendants, as set forth herein, violated said legal, moral and/or ethical duty.

* * * * * *

(c) Punitive Damages in the amount of one thousand dollars ($1,000.00) from * * * defendant Rozier and defendant Trenary in their individual capacities, each.

(d) Nominal Damages from defendant Rozier and defendant Trenary in the amount of five thousand dollars ($5,000.00) each, in their official capacities.

(e) Costs of this action and such and further relief the Court deems just and finds to be necessary.

Motions to dismiss Bird's complaint were filed on behalf of Rozier in his official capacity, Trenary in his official capacity, Rozier and Trenary in their individual capacities, and Heppner. A hearing was held on July 10, 1995, with all parties present. Pursuant to that hearing, the court filed an Order of Dismissal on July 25, 1995. The court dismissed the claim against Heppner for lack of subject matter jurisdiction because the amount in controversy did not meet the $7,000 jurisdictional threshold requirement for the district court. The court dismissed the claims against Rozier and Trenary with prejudice. The court determined that Bird's complaint did not set forth a justiciable controversy and did not present a fit subject for relief under Wyoming's Declaratory Judgment

Act. In addition, the court found the complaint did not set forth a claim upon which relief could be granted because Bird failed to establish that the officers had a duty to investigate Bird's complaint that Heppner converted Bird's personal property to her own use. Bird appeals only that portion of the order which dismisses the claims against Rozier and Trenary in their individual and official capacities (hereinafter appellees).

DISCUSSION

As a preliminary matter, we address Bird's contention that he timely moved for disqualification of Judge Price, barring Judge Price from taking further action in the case. Parties may peremptorily disqualify a judge by filing a motion within the prescribed time frame. In a multi-judge district (as is the Sixth Judicial District), a plaintiff must file a motion "within five days after the name of the assigned judge has been provided by a representative of the court to counsel for plaintiff by * * * a mailed notice." W.R.C.P. 40.1(b)(1).

The record before us contains a "Notice of Assignment of Judge" stating the case was assigned to Judge Dan R. Price II. The notice was dated and filed May 16, 1995, signed by an administrative assistant of the court, and indicates that a copy was distributed to Bird. Pursuant to Rule 40.1(b)(1), Bird had until May 26, 1995, to file a motion for peremptory disqualification. ¹ Bird did not file his motion until June 22, 1995. In that motion, Bird stated that Julie Bird, who personally filed Bird's complaint, was informed that Judge O'Brien was assigned to the case. In addition, Bird asserted that he had no knowledge that Judge Price was acting in the case until he received the Case Management Order on June 15, 1995. ² On June 27, 1995, the court issued an order denying Bird's motion as untimely. Bird filed an objection to the denial on July 7, 1995.

A notation in the court file that a representative of the court distributed a notice raises a presumption that the notice was sent and received, absent a finding to the contrary. See Morelli v. Manpower, Inc., 34 Conn.App. 419, 642 A.2d 9, 11 (1994); cf. Employment Sec. Comm'n v. Young, 713 P.2d 198, 200-01 (Wyo.1986) (noting presumption of regularity of acts of public administrative officials and recognizing presumption that delivery of mail matter occurs when it is properly addressed, stamped and mailed). Bird had the burden of rebutting this presumption by producing evidence that he did not receive notice. 2 JOHN W. STRONG, MCCORMICK ON EVIDENCE § 343 (4th ed.1992). This burden is not met by merely claiming in a late motion for peremptory disqualification, unsupported by affidavit or other competent evidence, that he did not know Judge Price was acting in the case until he received the Case Management Order. Welborn-Hosler v. Hosler, 870 S.W.2d 323, 328 (Tex.App.1994).

A sworn affidavit stating that the filing was not received will not automatically overcome the presumption, but such an affidavit will create an issue of fact which must be resolved by the trial court. Camerota v. Kaufman, 666 So.2d 1042, 1045 (Fla.App.1996). On November 6, 1995, Bird filed a statement from an officer at the Wyoming State Penitentiary indicating that the prison mail logs showed Bird did not receive any legal mail from the state district court from May 16 through May 23, 1995. This evidence, like a sworn affidavit, would have We turn, then, to Bird's contention that the district court erred in dismissing his complaint. When reviewing a W.R.C.P. 12(b)(6) dismissal, this court accepts all facts stated in the complaint as being true and views them in the light most favorable to the plaintiff. Darrar v. Bourke, 910 P.2d 572, 575 (Wyo.1996). Dismissal is a drastic remedy and is sparingly granted. Id. Nevertheless, we will sustain a W.R.C.P. 12(b)(6) dismissal when it is certain from the face of the complaint that the plaintiff cannot assert any set of facts that would entitle him to relief. Id. A district court judgment may be affirmed on any proper legal grounds supported by the record. Del Rossi v. Doenz, 912 P.2d 1116, 1119 (Wyo.1996).

created an issue of fact to be resolved by the trial court. However, Bird did not present the statement to the trial court, nor make it a part of the record below. Instead, he offered it for the first time as a supplement to the record on appeal. This court, when exercising its appellate jurisdiction, is not the proper forum in which to develop...