Board of Trustees of University of Wyoming v. Bell, I-

• Decision Date: 19 April 1983
• Docket Number: I-,A,5811,Nos. 5810,s. 5810
• Citation: 662 P.2d 410
• Parties: 10 Ed. Law Rep. 1222 BOARD OF TRUSTEES OF the UNIVERSITY OF WYOMING, Kendall Baker, Doesppellants (Defendants), v. Rosemarie BELL, Appellee (Plaintiff). Rosemarie BELL, Appellant (Plaintiff), v. BOARD OF TRUSTEES OF the UNIVERSITY OF WYOMING, Kendall Baker, Doesppellees (Defendants).
• Court: Wyoming Supreme Court

Page 410

662 P.2d 410

10 Ed. Law Rep. 1222

BOARD OF TRUSTEES OF the UNIVERSITY OF WYOMING, Kendall Baker, Does I-V, Appellants (Defendants), v. Rosemarie BELL, Appellee (Plaintiff).

Rosemarie BELL, Appellant (Plaintiff), v. BOARD OF TRUSTEES OF the UNIVERSITY OF WYOMING, Kendall Baker, Does I-V, Appellees (Defendants).

Nos. 5810, 5811.

Supreme Court of Wyoming.

April 19, 1983.

William R. Jones and John P. McBride of Jones, Jones, Vines & Hunkins, Wheatland, for appellants in No. 5810 and appellees in No. 5811.

Barkley R. Bonine, Laramie, for appellee in No. 5810 and appellant in No. 5811.

Before ROONEY, C.J., and RAPER, THOMAS, ROSE and BROWN, JJ.

THOMAS, Justice.

The dispositive issue posed by this appeal is whether this court may recognize a judgment entered upon default of the Board of Trustees of the University of Wyoming for failure to answer a complaint which contains no allegation of the filing of a claim as required by statute. While both parties have appealed from the judgment in the district court, the issue which we have identified was not urged or argued either in this court or in the district court. The Board of Trustees of the University of Wyoming instead urges that good cause exists to set aside the default judgment because of the showing of a meritorious defense, in effect asserting abuse of discretion on the part of the district court in failing to set aside the default judgment. The Board of Trustees also disputes the right of Rosemarie Bell to damages for wrongful termination of an employment contract under the circumstances, which include the fact of her status as a probationary employee at the time of her resignation. Claiming that her resignation was coerced, in her appeal Rosemarie Bell has presented arguments rejecting the right of the Board of Trustees of the University of Wyoming to challenge factual allegations in her complaint after the entry of default, and contesting the refusal of the district court to award damages as to all aspects of her claims or causes of action at the damage hearing held after entry of the default judgment. The disposition that we shall make of this case causes it to be unnecessary to discuss the issues which the parties chose to debate. Because the district court was without jurisdiction over the subject matter or Rosemarie Bell's complaint we must dismiss the appeal on our own motion, and we will remand the case to the district court with instructions to dismiss the complaint.

In May of 1982 Rosemarie Bell brought her action against the Board of Trustees of the University of Wyoming and Kendall L. Baker. Rosemarie Bell represented herself in the proceeding without the assistance of counsel. Kendall L. Baker, according to the complaint, was the Director of the Political Science Department of the University of Wyoming in which Rosemarie Bell was employed as an administrative secretary. The gravamen of her complaint was the forced resignation of Rosemarie Bell from that position under threat of discharge. Rosemarie Bell also complained of the failure to grant her a hearing prior to requesting her resignation, slander by Kendall Baker, and threatening, harassing, and intimidating conduct by Baker causing emotional and financial distress. While the complaint filed by Rosemarie Bell alleges many things, it does not in any way allege that she filed a claim as required by § 9-2-332, W.S.1977 (Cum.Supp.1982), or § 1-39-113, W.S.1977 (Cum.Supp.1982). ¹

A motion to dismiss was filed on behalf of Kendall L. Baker by an Assistant Attorney General of the State of Wyoming. In that motion Kendall L. Baker asserted that Rosemarie Bell was a probationary employee; that the Wyoming Governmental Claims Act, §§ 1-39-101 through 1-39-119, W.S.1977 (Cum.Supp.1982), contains no exception to governmental immunity that relates to the matters asserted in the complaint; and that in any event Kendall L. Baker was immune from suit because of his status as a governmental employee. In August of 1982 a hearing was held on Baker's motion to dismiss, and the court entered an order dismissing him from the action. In so doing the district court found that the Wyoming Governmental Claims Act, supra, was applicable to this case, and noted specifically that the Board of Trustees of the University of Wyoming is a governmental entity under that statute. As the court stated in its order, the record reflected no service of the complaint upon the board of trustees or any of its members at the time of that order, and for that reason the court was careful to make no finding with respect to the Board of Trustees of the University of Wyoming.

About ten days later a return of a summons was filed reflecting service upon the Board of Trustees of the University of Wyoming by leaving a copy with a member of the board at his address in Laramie, Wyoming. No answer or pleading was filed on behalf of the Board of Trustees of the University of Wyoming, and approximately one month later Rosemarie Bell filed a Motion for Hearing in which she requested a hearing for the judge to assess the exact punitive damages on all four causes of action plus all costs and losses. On the same day she filed an affidavit and request for entry of default, and an entry of default was made in the record by the clerk of the district court. ² Also on the same day an order setting a hearing on the motion for default judgment was entered in the file. The hearing was set for September 8, 1982, and on September 1, 1982, the Board of Trustees of the University of Wyoming filed its motion to set aside the default. That motion was set for hearing at the same time and date as that previously set for the hearing for default judgment.

The failure to answer on the part of the Board of Trustees of the University of Wyoming is not satisfactorily explained in the record. An affidavit from the trustee who was served states that he took the summons and complaint to the administrative offices of the University of Wyoming. An affidavit from a responsible official in that office reflects that no copy of the summons and complaint could be located in that office.

In any event, after the hearing the district court proceeded to enter judgment against the University of Wyoming based upon the default which previously had been entered. In so doing the district court denied the motion to set aside the default which had been filed on behalf of the Board of Trustees of the University of Wyoming, finding no good cause had been shown under Rule 55(c), W.R.C.P. However, the judgment entered by the district court awarded Rosemarie Bell a judgment only on her first cause of action, premised upon a theory of wrongful discharge, in the total amount of $1,886.30. The court found that the Board of Trustees of the University of Wyoming was entitled to judgment against the plaintiff on her second, third and fourth causes of action. As noted previously, both the Board of Trustees of the University of Wyoming and Rosemarie Bell, now acting through counsel, filed timely notices of appeal from the judgment of the district court.

The complaint which Rosemarie Bell filed in this case sounds both in contract and in tort. The district court noted, in dealing with the dismissal of Kendall Baker, that the complaint sounded in tort. The judgment which was awarded in favor of Rosemarie Bell, and against the Board of Trustees of the University of Wyoming, however, seems to encompass only elements compatible with breach of contract. See Panhandle Eastern Pipe Line Company v. Smith, Wyo., 637 P.2d 1020 (1981). Except for filing fees and costs for the service fee of the sheriff the award was premised upon differences in salary in two jobs held by Rosemarie Bell together with an apparent award for loss of salary during a period in which she was not employed. As we view the issue presented by this appeal, it is not necessary to classify the claim because any classification would not affect the result which we reach.

If the action is treated as one sounding in contract, and in awarding damages that is the way the district court treated it, it traditionally would have been governed by concepts encompassed in our prior precedents. We know that an action brought against the Board of Trustees of the University of Wyoming is an action against the State of Wyoming. Section 1-35-101, W.S.1977; Retail Clerks Local 187 AFL-CIO v. University of Wyoming, Wyo., 531 P.2d 884 (1975). The same rule applied prior to the adoption of the statute. Hjorth Royalty Co. v. Trustees of University of Wyoming, 30 Wyo. 309, 222 P. 9 (1924). In Awe v. University of Wyoming, Wyo., 534 P.2d 97 (1975), in which this court dealt with a tort claim against the University of Wyoming, we noted the requirement of § 9-71, W.S.1957 (now found in § 9-2-332, W.S.1977 (Cum.Supp.1982)), for filing a claim with the State Auditor. We there held that the statute implements Art. 16, § 7 of the Constitution of the State of Wyoming, ³ and is a condition precedent to the filing of an action against the State of Wyoming, including the Board of Trustees of the University of Wyoming. The court in Awe v. University of Wyoming, supra, relied upon Price v. State Highway Commission, 62 Wyo. 385, 167 P.2d 309 (1946), another tort suit, and Utah Construction Co. v. State Highway Commission, 45 Wyo. 403, 19 P.2d 951 (1933), a contract case.

In Awe v. University of Wyoming, supra, the claim requirement was described as a condition precedent to the filing of the action against the Board of Trustees of the University of Wyoming. This court also said, however:

" * * * We are discussing and deciding questions of serious and important prerequisite jurisdictional procedures, without which we might as well abandon all rules of orderly conduct of lawsuits, disregard the mandates of the legislature and place everything upon an equitable basis of what we, as judges, might think the arrangement from day to day ought to be. * * * " Awe v....