Jung-Leonczynska v. Steup

• Decision Date: 16 November 1989
• Docket Number: JUNG-LEONCZYNSK,No. 89-91,A,89-91
• Parties: 57 Ed. Law Rep. 260 Malgorzatappellant (Plaintiff), v. Matthias STEUP, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 578

782 P.2d 578

57 Ed. Law Rep. 260

Malgorzata JUNG-LEONCZYNSKA, Appellant (Plaintiff), v. Matthias STEUP, Appellee (Defendant).

No. 89-91.

Supreme Court of Wyoming.

Nov. 16, 1989.

Malgorzata Jung-Leonczynska, pro se.

Steven R. Helling of Murane & Bostwick, Casper, for appellee.

Before CARDINE, C.J., and THOMAS, URBIGKIT, MACY and GOLDEN, JJ.

GOLDEN, Justice.

In this summary judgment appeal we hold that the question whether a public employee, who allegedly engaged in intentional tortious conduct, was acting within the scope of his duties under W.S. 1-39-104(a) (June 1988 Repl.), was a question of fact for the trier of fact, not one of law for the court as was determined by the trial court. In accordance with our discussion of this primary issue and the other issues presented, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Malgorzata Jung-Leonczynska (Leonczynska) filed an action against Professor Matthias Steup (Steup) seeking damages because of an incident which occurred at 1:00 p.m. on November 13, 1987, in a University of Wyoming classroom during an independent study course class being taught by Steup as a faculty member and attended by Leonczynska as a student. According to Leonczynska's complaint, Steup jumped up from his seat and ran four to five yards to where she was sitting. As he came toward her he was angry and yelling; he shook his fist in front of her face; he pounded the table in front of her face; and pounded her belongings on the table, which belongings were in her immediate possession and connected with her body. In her complaint Leonczynska alleged that Steup's intention was to create in her fear and apprehension of imminent bodily contact by him and that as a result of Steup's conduct, she had a fear and apprehension of imminent bodily contact by him. She sought damages on the alternative theories of assault, battery, intentional infliction of emotional harm, and duress and undue influence. Steup answered the complaint, generally denying the allegations of wrongdoing and asserting several affirmative defenses.

During the pendency of discovery, Steup moved for summary judgment, supporting his motion with an affidavit and memorandum of law. In his motion he asserted that: the trial court lacked subject matter jurisdiction because Leonczynska failed to allege that she had filed a claim under W.S. 1-39-113 (June 1988 Repl.) of the Wyoming Governmental Claims Act; he was immune from tort liability pursuant to the provisions of W.S. 1-39-104(a) (June 1988 Repl.); Leonczynska's claims were barred by the statute of limitations set forth in W.S. 1-3-105(a)(v); and the allegations within the complaint failed to state claims upon which relief could be granted.

The trial court granted Steup's motion for summary judgment, finding as a matter of law that Steup was a public employee acting within the scope of his duties as defined in W.S. 1-39-103(a)(v). The trial court concluded that the provisions of the Wyoming Governmental Claims Act applied; no statutory exception to the grant of immunity existed; Leonczynska's complaint failed to allege she had filed a claim under the act as required, as a result of which the court had no subject matter jurisdiction; and Steup was immune from liability for his conduct. The trial court found it unnecessary to rule on the statute of limitations issue. Following the trial court's adverse decision, Leonczynska filed this appeal.

From our reading of the parties' appellate briefs, we identify three issues that involve procedural questions; the fourth issue is substantive:

I. Is an appellant's notice of appeal deemed filed for purposes of the fifteen day requirement of W.R.A.P. 2.01 only upon the appellant's payment to the clerk of the district court of the twenty-five dollar transcript fee prescribed by W.S. 5-3-206(a) (Cum.Supp.1988)?

II. Is Leonczynska's failure to file a certificate of compliance with her notice of appeal as prescribed by W.R.A.P. 2.01 justification to dismiss her appeal?

III. Is Leonczynska's failure to make appropriate page references to the record on appeal in her statement of facts set forth in her appellate brief justification to dismiss her appeal?

IV. Did the trial court err in granting Professor Steup's motion for summary judgment?

I. Failure to Pay Transcript Fee Upon Filing of Appeal

A civil appeal from a district court to this court shall be taken by filing a notice of appeal with the clerk of the district court within fifteen days from entry of the judgment or final order appealed from. W.R.A.P. 2.01. ¹ Concurrently with this filing, the appellant shall order and arrange for the payment of the transcript. Id. For all civil matters filed or commenced, the clerk of the district court shall charge the sum of twenty-five dollars for all transcripts in cases appealed to this court. W.S. 5-3-206(a)(vii) (Cum.Supp.1988).

On March 15, 1989, two days after the trial court entered its summary judgment order against Leonczynska, she presented her notice of appeal for filing to the clerk of the district court. Leonczynska did not pay the twenty-five dollar transcript fee at that time; rather, she filed an affidavit seeking to proceed without payment of the fee. After the trial court denied her request to proceed without payment of the fee, she paid the fee on April 12, 1989. Steup argues, without citation of supporting case law, that Leonczynska's notice of appeal was not deemed filed for W.R.A.P. 2.01 purposes until she paid the transcript fee under W.S. 5-3-206(a)(vii). Under Steup's argument, since Leonczynska did not pay the transcript fee until thirty days after the entry of the summary judgment order, the notice of appeal was deemed filed then, causing the appeal to be filed beyond the fifteen-day period required by W.R.A.P. 2.01. Therefore, Steup argues, Leonczynska's appeal must be dismissed.

We reject Steup's argument. The plain language of W.R.A.P. 2.01 does not establish linkage with W.S. 5-3-206(a)(vii). The rule speaks only of the filing of the notice of appeal; it says nothing about payment of the transcript fee. It establishes no requirement that the appellant pay for a transcript when the notice is filed. To the contrary, all the appellant need do is arrange for the payment of the transcript. The clear import of this language is the recognition of future, not immediate, payment. W.R.A.P. 2.02 prescribes the contents of the notice of appeal; it likewise says nothing about the payment of the transcript fee. W.R.A.P. 3.02 provides that within forty days from the date of the filing of the notice of appeal, the appellant shall file the record on appeal and pay the docket fee fixed by W.R.A.P. 10.01. We hold that an appellant's notice of appeal is deemed filed for purposes of W.R.A.P. 2.01 upon the appellant's presenting the notice for filing to the clerk of the district court and not upon the appellant's payment to the clerk of the transcript fee prescribed by W.S. 5-3-206(a)(vii).

II. Failure to File Certificate of Compliance

W.R.A.P. 2.01, in relevant part, states Concurrently with filing of the notice of appeal, the appellant shall order and either arrange for the payment of a transcript of the portions of the evidence deemed necessary for the appeal or make application for payment thereof as provided in Rule 10.06; a certificate of compliance therewith shall be filed in the case or endorsed upon the notice of appeal * * *.

Steup alleges that Leonczynska failed to file the certificate of compliance evidencing that she ordered and arranged for the payment of a transcript of the evidence deemed necessary for the appeal. For this failure, he seeks the remedy of the dismissal of the appeal. Although the record on appeal does not contain such a certificate, the record clearly shows that Leonczynska ordered and arranged for the payment of a transcript. The record further shows that Leonczynska caused the record on appeal to be filed timely with this court and paid the requisite docket fee fixed by W.R.A.P. 10. Under these circumstances we find the absence of the certificate to be harmless and the remedy of dismissal too harsh and unjustified.

III. Failure to Make Page References to Record on Appeal

W.R.A.P. 5.01(3) states that the appellant's brief shall contain a statement of the case which shall include, among other things, "a statement of the facts relevant to the issues presented for review with appropriate page references to the record * * *." Steup points out that Leonczynska has failed to provide in her appellate brief appropriate page references to the record in her statement of the facts. Steup again seeks dismissal for this failure. Recently, in V-1 Oil Company v. The Honorable Robert B. Ranck, 767 P.2d 612, 613 (Wyo.1989), we cautioned litigants practicing before this court to comply with W.R.A.P. 5.01(3). We do not retreat from that caution. In this case, however, the record is not lengthy and the portions of the record relevant to the issues presented for review are easily found. Consequently, our review has not been hampered by Leonczynska's failure to make appropriate page references to the record. In light of this, we deem the remedy of dismissal too harsh and unwarranted.

IV. Summary Judgment

We review this summary judgment appeal under W.R.C.P. 56, in accordance with our well-established, often-stated standard of review, recently reiterated in part in Case v. Goss, 776 P.2d 188, 190-91 (Wyo.1989). The moving party, Steup, has the initial burden to show that no genuine issue of material fact exists. Stundon v. Sterling, 736 P.2d 317, 318 (Wyo.1987). "Conclusory affidavits are insufficient and specific facts must be shown." Davenport v. Epperly, 744 P.2d 1110, 1112 (Wyo.1987). We examine the record in the light most favorable to the nonmoving party, Leonczynska here, granting her all favorable inferences which can properly be drawn from the...