Gose v. City of Douglas

• Decision Date: 13 October 2008
• Docket Number: No. S-07-0242.,S-07-0242.
• Citation: 2008 WY 126,193 P.3d 1159
• Parties: Richard V. GOSE and Celeste M. Gose, Appellants (Plaintiffs), v. CITY OF DOUGLAS, Wyoming, Appellee (Defendant).
• Court: Wyoming Supreme Court

193 P.3d 1159

2008 WY 126

Richard V. GOSE and Celeste M. Gose, Appellants (Plaintiffs), v. CITY OF DOUGLAS, Wyoming, Appellee (Defendant).

No. S-07-0242.

Supreme Court of Wyoming.

October 13, 2008.

Representing Appellants: Pro se.

Representing Appellee: Rick L. Koehmstedt and Peter J. Timbers of Schwartz, Bon, Walker & Studer, LLC, Casper, Wyoming.

Before VOIGT, C.J., and GOLDEN, HILL, KITE, BURKE, JJ.

GOLDEN, Justice.

[¶ 1] The City of Douglas (City) did not approve a subdivision proposed by Appellants Richard and Celeste Gose (the Goses). The Goses filed a complaint seeking money damages from the City, based on a claim of inverse condemnation. The district court dismissed the damages claim, with prejudice, because, among other reasons, the Goses' complaint did not allege that their notice of governmental claim complied with the certification and signature requirements contained in Wyo. Const. art. 16, § 7. While we agree that dismissal of the damages claim was proper, we find that the dismissal should have been without prejudice. Also, we will affirm the district court's denial of mandamus relief, because the City does not have an absolute and incontrovertible duty to approve the subdivision.

ISSUES

[¶ 2] The Goses present this statement of the issues:

1. The first issue in this case is the question of jurisdiction as is contested by Appellee under Rule 12(b)(1) of the Wyoming Rules of Civil Procedure raising the issue as to jurisdiction of the subject matter and framing the Motion and Brief as failing to follow the requirements of Article 16 Section 7 of the Wyoming Constitution, when the perfected demand under Article 16 Section 7 of the Wyoming Constitution was properly served on the City of Douglas and pled in the Complaint.

2. The second issue in this case is the question of whether the 2 year limitation of actions set out in W.S. 1-39-113 which states "(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, * * *" started to run when the act of preventing the approval of the Cheyenne Subdivision was meaningful to damage Appellants started when the County Commissioners of Converse County approved the Subdivision in 2006 or the Appellee alleged at some earlier time, 2002, when the Converse County Planning and Zoning Commission gave a conditional approval which condition had not been met and the act by the City of Douglas was raised but of no effect.

3. The third issue in this case is whether the City of Douglas had the Statutory Authority to demand of Appellant, Richard V. Gose, an agreement to improve a portion of County Road No. 56 to City of Douglas requirements by the paving, sidewalking, curbing and guttering of a portion of County Road No. 56 located on another person's property before approving the Cheyenne Subdivision or was precluded from this demand by its violating the tax laws of Wyoming.

4. The fourth issue in this case is the question of [the district court's] legal ability to make decisions as to elect which fact to use to decide the motion of dismissal before the Court when on each issue before the Court, [the district court] elected a set of facts in opposition to the facts presented by Appellants to make his decision when this is a jury case with the Appellants not having waived a Jury determination of the facts and the contradicted facts decided upon should have been decided by a jury and not [the district court].

FACTS

[¶ 3] Appellants Richard and Celeste Gose (father and daughter) own land just outside the City of Douglas (City). This case arises from the Goses' attempts to subdivide that property.

[¶ 4] Mr. Gose purchased the property in May of 1979. In June of 1980, the City annexed the Clearfield East Subdivision. The Goses' property lies adjacent to the Clearfield East Subdivision property. In August of 1993, the Douglas City Council passed a resolution that vacated the plat for the Clearfield East Subdivision. The resolution stated that it operated "to divest all public rights in the streets, alleys, commons and public ground laid out or described in such plat."

[¶ 5] In 2001, Mr. Gose submitted a proposed subdivision, the "Cheyenne Subdivision," to Converse County officials. Because the proposed subdivision lies within one mile of City limits, the City was provided with a copy of the subdivision application. The City did not approve the subdivision. The proposed plat map indicates that the subdivision would be accessed by "unimproved" County Road No. 56, which passes through the Clearfield East Addition. The City took this position: "The portion of the roadway to serve this subdivision appears to be located within the city limits in the Clearfield East Addition to the City of Douglas [and] will need to be designed and developed to city street specifications."¹ City street standards mandate paved roads, curb, gutter, and sidewalk. The City also questioned whether the proposed access road was a county road.

[¶ 6] On March 19, 2002, the Converse County Planning and Zoning Commission conditionally approved the subdivision plat, "subject to the necessity of the developer to resolve the access issue with the City of Douglas." In June of 2002, Mr. Gose proposed a city ordinance that would allow county roads within the city limits to be gravel. The City Council rejected the proposed ordinance.

[¶ 7] In a September 11, 2002, letter to Mr. Gose, the City Administrator stated that the "City's position continues to be that we have the ability to control how roadways are developed within the city limits, whether they are city or county roads." The letter also stated:

The City would be willing to enter into a Deferred Development Agreement with you, whereby the road could be developed to gravel street standards until the Clearfield East Subdivision develops. At that time, we would insist that this roadway be paved with a percentage of that development appropriately belonging to all who benefit from it, including your county subdivision users.

[¶ 8] In November of 2002, Mr. Gose sued the City (and its mayor, administrator, and council members) in Federal District Court for the District of Wyoming. In August of 2003, the Federal District Court dismissed the suit. The Federal District Court found that Mr. Gose's claims were not ripe because he had not pursued an inverse condemnation claim in state court.

[¶ 9] Next, Mr. Gose filed suit, in state district court, to establish that the proposed subdivision's access road was in fact a county road. He was successful in this effort, and the district court entered a decree on June 16, 2006. On August 1, 2006, the County Commissioners conducted a hearing on the proposed subdivision. According to the Goses' brief, the County Commissioners approved the proposed subdivision the next day.

[¶ 10] However, the City again did not approve the proposed subdivision. In a letter to the Converse County Commissioners, the City Administrator indicated that the City "stands by its existing city subdivision standards, which require that streets within the city limits be developed to city standards." The letter also indicated "the City would still be willing to enter into a Deferred Development Agreement with Mr. Gose." The matter next proceeded to this litigation.

[¶ 11] On March 8, 2007, the Goses submitted a letter to the City in which they claimed damages of $456,000. This notice of claim was notarized and signed under penalty of perjury. On April 20, 2007, the Goses filed this suit seeking damages and other relief. First, the Goses alleged the City was depriving them of the beneficial use of their land. The Goses cited Wyoming's inverse condemnation statute, Wyo. Stat. Ann. § 1-26-516 (LexisNexis 2007).² Second, the Goses requested the district court order the City to approve the proposed subdivision and refrain from requiring them to improve the access road (i.e., pave, sidewalk, curb and gutter). The City filed a motion to dismiss.

[¶ 12] On September 17, 2007, the district court entered its "Order Granting Motion to Dismiss with Prejudice." The district court dismissed the inverse condemnation claim for two reasons. First, the judge found that the Goses' complaint was jurisdictionally deficient because it did not allege compliance with the constitutional signature requirements for a notice of claim. Beaulieu v. Florquist, 2004 WY 31, ¶¶ 14-15, 86 P.3d 863, 868-69 (Wyo.2004). Second, the judge ruled that the Goses' claims were untimely. The judge found that the notice of claim was not filed "within two (2) years of the date of the alleged act, error or omission." Wyo. Stat. Ann. § 1-39-113(a) (LexisNexis 2007). The judge found that the "act, error or omission" giving rise to the Goses' claim was "the denial of his subdivision application in 2002." The judge rejected Goses' argument that their claim did not accrue until the County approved the subdivision in August of 2006.

[¶ 13] With respect to the Goses' request that the City be required to approve the subdivision, the judge ruled that the Goses were seeking mandamus relief. The judge found that mandamus relief was not proper because the City had no clear legal obligation to approve the subdivision. This timely appeal followed.

DISCUSSION

A. Notice of governmental claim

[¶ 14] The Goses contend that, contrary to the district court's decision, their complaint adequately alleged compliance with the Constitution's signature requirements. The Goses also submit that their notice of claim met the constitutional signature requirements.

[¶ 15] There is little question that the Goses' claim for inverse condemnation is subject to the time limits for filing claims set forth in the Wyoming Governmental Claims Act, as well as the requirements of Wyo. Const. art. 16, § 7. Waid v. State ex rel. Dept. of Transp.,...