Cranston v. Weston County Weed and Pest Bd.

• Citation: 826 P.2d 251
• Decision Date: 14 February 1992
• Docket Number: No. 90-65,90-65
• Parties: Gene and Dorothy CRANSTON, Appellants (Plaintiffs), v. The WESTON COUNTY WEED AND PEST BOARD, Appellee (Defendant).
• Court: United States State Supreme Court of Wyoming

Page 251

826 P.2d 251

Gene and Dorothy CRANSTON, Appellants (Plaintiffs), v. The WESTON COUNTY WEED AND PEST BOARD, Appellee (Defendant).

No. 90-65.

Supreme Court of Wyoming.

Feb. 14, 1992.

Debra J. Hein, Newcastle, for appellants.

Tracy Hunt, Newcastle, for appellee.

Before URBIGKIT, C.J., THOMAS, CARDINE, GOLDEN, JJ., and HANSCUM, District Judge.

GOLDEN, Justice.

Appellants Gene and Dorothy E. Cranston (Cranstons) appeal from the trial court's orders dismissing their complaint against the Weston County Weed and Pest Board (WCWPB) and dismissing their amended complaint against the Weston County Board of Commissioners (Commissioners). The trial court's dismissals were based on the Cranstons' failure to serve a separate notice of claim on WCWPB, to show that Weston County owed them a duty of care, and to prove that the county had insurance available to cover appellant's claim against Weston County.

Appellants raise the following issues:

A. Whether the Weston County Weed and Pest [Board] is a "governmental entity" requiring separate service of a Notice of Claim?

B. Whether Weston County Weed and Pest [Board] is estopped from asserting that it was a separate and distinct governmental entity from the Weston County Board of Commissioners?

C. Whether Appellants substantially complied with W.S. 1-39-113 so as to confer subject matter jurisdiction upon the district court?

D. Whether the Weston County Commissioners waived their immunity from E. Whether the Weston County Board of Commissioners owe a duty to Plaintiffs in this case?

liability by purchasing liability insurance?

We affirm the order dismissing appellants' suit against WCWPB, reverse the order dismissing appellants' suit against the Commissioners, and remand for further proceedings.

FACTS

Appellants own a ranch adjoining state-owned property in Weston County. Historically, appellants' source of drinking water has been a well which pumps from an aquifer located beneath the surface of their property. Water from the aquifer has also been used for livestock purposes.

In August, 1987, after noticing that plants in his garden wilted when he watered them, Gene Cranston sent a sample of his tapwater to the Wyoming Department of Agriculture for testing. The test results showed that the water was contaminated with 18 parts per billion of Picloram (tradename "Tordon"), a herbicide used to control broadleaf weeds. The Department of Agriculture advised Cranstons that the amount of Tordon present in their water was sufficient to harm vegetable crops and broadleaf weeds. The Department recommended that the Cranstons find another source of drinking water.

The Cranstons notified the Wyoming Department of Environmental Quality (DEQ) of the contamination problem. After an investigation, the DEQ found that appellee WCWPB was responsible for spraying and applying pellets of the herbicide to the state land adjacent to and upgradient from the Cranstons' property. This herbicide polluted the groundwater from which the Cranstons obtained their drinking water. The DEQ issued a notice of violation to Weston County for the herbicide pollution.

Cranstons prepared a notice of claim against both the Commissioners and the WCWPB. The notice requested damages of $2 million based on various claims arising from negligent application of the herbicide by WCWPB employees. Cranstons sent a single copy of this document certified mail addressed to "Weston County Commissioners, Weston County Courthouse, Newcastle, Wy. 92701."

When the claim went unsatisfied, Cranstons filed suit in district court. Their complaint requested damages for negligence by the Commissioners and WCWPB. Both entities moved to dismiss the complaint, citing immunity under the Wyoming Governmental Claims Act and insufficiency of process.

The trial court found that WCWPB was a separate governmental entity which should have been served with a notice of claim before the suit; that the Commissioners could not be held vicariously liable for the acts and omissions of WCWPB under the doctrine of respondeat superior; that the complaint failed to allege that the County had liability insurance; and that no other exception to the Governmental Claims Act was applicable. The trial court dismissed Cranstons' complaint, but allowed them to file a claim with WCWPB if they could still do so during the limitations period. See W.S. 1-39-113 (June 1988 Repl.). If not, the court found no just cause for delay and stated it would enter judgment in favor of WCWPB.

Cranstons were given thirty days to file an amended complaint against Weston County. This complaint was required to allege that the Commissioners could be held liable because of insurance coverage. Cranstons were also given the opportunity to discover information about the county's insurance policies.

Cranstons were unable to file a claim with WCWPB because the two-year limitations period had expired; therefore, they appealed to this court that portion of the trial court's order granting judgment for WCWPB. Cranstons also filed an amended complaint, which included an allegation of insurance coverage, against the Commissioners. After a hearing the trial court granted the Commissioners' motion to dismiss the amended complaint. Cranstons appealed from that order, and we now consider

all of Cranstons' issues together in this appeal.

STANDARD OF REVIEW

As a threshold question we must determine whether the trial court's orders were dismissals under W.R.C.P. 12(b)(6) or whether the motions to dismiss had been converted to motions for summary judgment by the court's consideration of material outside the pleadings.

The record reveals the following discussion between counsel and the court at the hearing on appellees' first motion to dismiss:

Mr. Hunt [counsel for appellees]: I have a letter that Mrs. Hein has agreed to stipulate to admission of which, it comes from the Farm Bureau Insurance Company, Mountain West Farm Bureau Mutual Insurance Company, whereby the attorney for that company has denied liability on the claims of which it is aware * * *. I offer that to the court to--

Ms. Hein [counsel for appellants]: No objection, Your Honor.

The Court: Okay.

That will convert this from a 12(b) motion to a motion for summary judgment then?

Mr. Hunt: In that it--

The Court: Looks at matters outside the pleadings.

Mr. Hunt: --outside the pleadings. That's okay with me.

Ms. Hein: That's not okay with me then. That's going to change it.

Apparently, no further discussion was held on whether appellees' motion to dismiss had been converted to a motion for summary judgment. Nor was any determination made on Cranstons' objection to conversion.

A motion for dismissal under W.R.C.P. 12(b)(6) converts to a motion for summary judgment if the trial court considers matters other than the pleadings. Mostert v. CBL & Associates, 741 P.2d 1090, 1097 (Wyo.1987). For a more thorough explanation of this concept, see also Torrey v. Twiford, 713 P.2d 1160, 1162-63 (Wyo.1986). If the materials considered are affidavits attached to the motion, conversion occurs automatically. Torrey, 713 P.2d at 1165; W.R.C.P. 12(b). If affidavits have not been filed, but other materials are considered, such as discovery documents, conversion does not occur automatically. The court may still treat the motion as one for summary judgment, but the record must demonstrate that the parties had notice of the conversion and that the nonmovant had an opportunity to respond. Torrey, at 1164. See also Kimbley v. City of Green River, 642 P.2d 443, 445 (Wyo.1982), appeal after remand 663 P.2d 871 (Wyo.1983).

In this case, the trial court considered nonaffidavit materials which were outside the pleadings. Counsel for appellees presented the court with a letter from their insurance company at the first hearing. Cranstons provided insurance information to the court at the second hearing. The question is whether Cranstons had notice which appears in the record of the court's intent to convert the motion to one for summary judgment.

The court's statements in the colloquy reprinted above were sufficiently ambiguous that they did not satisfy the notice requirement. Also, although Cranstons presented the court with their own materials outside the pleadings, the trial court never ruled on Cranstons' objection to conversion. Furthermore, its orders were captioned and worded as orders to dismiss rather than orders for summary judgment. Because the requirement of clear, unambiguous notice for conversion was not satisfied, we will treat the court's orders in this case as orders to dismiss rather than as converted orders for summary judgment.

We set forth concisely our standard of review of a trial court's order dismissing a complaint:

According to our standard of review we will sustain a dismissal of a complaint only if it shows on its face that the plaintiff was not entitled to relief under any set of facts. In considering such a motion, the "facts alleged in the complaint Matter of Paternity of JRW, 814 P.2d 1256, 1259 (Wyo.1991) (quoting Mostert v. CBL & Associates, 741 P.2d 1090, 1092 (Wyo.1987)) (citations omitted).

                are admitted and the allegations must be viewed in the light most favorable to plaintiffs."   Dismissal is a drastic remedy, and is sparingly granted
                

DISCUSSION

In Cranstons' first two issues, they argue alternatively that either WCWPB is not a separate governmental entity entitled to notice of claim under the Wyoming Governmental Claims Act, or that WCWPB is estopped from asserting that it is a separate governmental entity.

Governmental entities and their public employees in Wyoming are immune from tort liability, except as provided for in W.S. 1-39-101 et seq. (June 1988 Repl.) (Wyoming Governmental Claims Act). See W.S. 1-39-104(a). Actions against governmental entities may only be pursued if brought in procedural and substantive compliance with the act. See Boehm v. Cody Country Chamber of Commerce, 748 P.2d...