Robbins v. South Cheyenne Water and Sewage Dist., s. 89-272

• Decision Date: 04 June 1990
• Docket Number: Nos. 89-272,89-273,s. 89-272
• Citation: 792 P.2d 1380
• Parties: Alfred V. ROBBINS, Appellant, (Defendant), v. SOUTH CHEYENNE WATER AND SEWAGE DISTRICT, Appellee, (Plaintiff). Alfred V. ROBBINS, Appellant, (Plaintiff), v. SOUTH CHEYENNE WATER AND SEWAGE DISTRICT, Appellee, (Defendant).
• Court: Wyoming Supreme Court

Page 1380

792 P.2d 1380

Alfred V. ROBBINS, Appellant, (Defendant), v. SOUTH CHEYENNE WATER AND SEWAGE DISTRICT, Appellee, (Plaintiff).

Alfred V. ROBBINS, Appellant, (Plaintiff), v. SOUTH CHEYENNE WATER AND SEWAGE DISTRICT, Appellee, (Defendant).

Nos. 89-272, 89-273.

Supreme Court of Wyoming.

June 4, 1990.

Douglas J. Mickey, Park Ridge, Ill., for appellant.

Edwin H. Whitehead, Whitehead, Gage & Davidson, P.C., Cheyenne, for appellee.

Before CARDINE, C.J., and THOMAS, MACY and GOLDEN, JJ., and PATRICK, District Judge.

THOMAS, Justice.

How does one assert and foreclose a lien on the property of another when no services, work, or materials have been furnished to the owner? The answer is that one cannot, and that answer is dispositive of the first case in these consolidated appeals although the decision is premised on an issue that is somewhat different from the questions posed to the district court. In that case, No. 89-272, we resolve a question of jurisdiction that we are entitled to consider even though it was not raised in the district court. In the second case, No. 89-273, we treat with the question of whether A.V. Robbins (Robbins) was entitled to a contested case hearing with respect to his claim that his two mobile homes had been joined in such a way that they constituted a single structure so that only one water and one sewer connection was required instead of two. We conclude that this record reveals that the jurisdictional facts that must be demonstrated in order for the South Cheyenne Water and Sewer District (District) to foreclose its lien are not present. Consequently, the case docketed here as No. 89-272 must be reversed and remanded with directions to dismiss the District's complaint. We affirm the determination by the district court that Robbins was not entitled to the contested case hearing that he sought by a declaratory judgment action in the second case. The judgment of the trial court in that case is affirmed.

Robbins appealed from the decisions of the district court in two different cases. These appeals were consolidated, and in his brief in the consolidated appeals, Robbins asserts the issues to be:

"1. Whether the District Court erred as a matter of law in concluding that the Wyoming Legislature did not contemplate a trial-type hearing prior to lien foreclosure under the provisions of W.S. § 41-10-113(a)(xxi).

"2. Whether the District Court erred as a matter of law in failing to find that Robbins has been deprived of due process because of South Cheyenne Water and Sewer District's (hereinafter District) failure to provide Robbins with a trial-type hearing in accord with the provisions of the Wyoming Administrative Procedure Act.

"3. Whether the District Court erred as a matter of law in failing to find that the District's Resolution of July 7, 1987 is an ex post facto law as applied to Robbins, in violation of Article One, Section Thirty-Five of the Wyoming Constitution.

"4. Whether the District Court erred as a matter of law in failing to conclude that the District lacked proper statutory authority to impose its lien against Robbins' property, because the District had provided no services to Robbins in exchange for the sum of money demanded by it.

"5. Whether the District Court erred as a matter of law in failing to conclude that the District lacks proper statutory authority to compel property owners within the District to connect with the District's water system.

"6. Whether the District Court erred as a matter of law in failing to conclude that the District's Resolution of July 17, 1987 violates Article One, Section Thirty-Four of the Wyoming Constitution because the same is not uniformly applied to property owners within the District's boundaries.

"7. Whether there was substantial evidence of record to support the District Court's conclusion that Robbins' two mobile homes were not incorporated into a single structure and that therefore, each mobile home requires its own separate water and sewer taps."

In its brief as appellee, the District asserts the issues to be:

"I. The hearing provided Robbins pursuant to the provisions of W.S § 41-10-113(a)(xxi) was not required to be a trial type hearing in accord with the provisions of the Wyoming Administrative Procedure Act, nor was Robbins deprived of due process as a result of the hearing.

"II. The District Court did not err in failing to find that the District's resolution of July, 7, 1987 is an ex post facto law as applied to Robbins, in violation of Article One, Section Thirty-Five of the Wyoming Constitution.

"III. The District Court did not err as a matter of law in failing to conclude that the District lacked proper authority under the statutes to impose a lien against Robbins' property, because the District had provided no services to Robbins in exchange for the sum of money demanded by it and it had authority to compel property owners to connect to its system.

"IV. The District Court did not err as a matter of law in failing to conclude that the District's resolution of July, 7, 1987 violates Article One, Section Thirty-Four of the Wyoming Constitution because the same is not uniformly applied to property owners within the District's boundaries.

"V. There was substantial evidence presented at trial to support the District Court's conclusion that Robbins' two trailers were not incorporated into a single structure and that therefore, each trailer requires its own separate water and sewer line and tap."

These appeals are the products of separate actions initiated in the district court. In the case that is identified as No. 89-272, the District filed its complaint on February 17, 1989 seeking a judgment and decree of foreclosure against Robbins on the premise of a valid perpetual lien on Robbins's property in favor of the District according to statute. The District's complaint alleged that the District had published a notice of hearing prior to judicial foreclosure of a perpetual lien directed to the Robbins's property pursuant to § 41-10-113(a), W.S.1977. In the complaint, the District asserted that Robbins owed it $2,860 for a water tap, a water utility fee, a sewer permit, a sewer facility fee, and the cost of advertising the hearing on the lien. On the record before us, none of these items were actually furnished to Robbins prior to the initiation of the action, nor have they been furnished to Robbins since. The District simply made a determination that Robbins was indebted to it according to the tenor of its complaint. That decision was made after a hearing before the Board of Directors of the District (Board) at which there was testimony by the District's foreman that on Robbins's property there were situated two separate mobile homes that had no common walls, doors, or roof and had not otherwise been incorporated into a single dwelling. The Board determined that this arrangement of dwellings required two connections rather than one.

Robbins's position in the proceedings before the Board was that these mobile homes constituted only one dwelling. Robbins had connected the second mobile home into the sewer system for the first mobile home, and he also had made a water connection between the two mobile homes. ¹ The record establishes that Robbins did receive notice of the first Board meeting at which his protest was considered. He was not, however, given notice of the two subsequent meetings where that issue was discussed further and at which the decision was made to proceed with the perfecting of a lien against his property.

The decision of the district court, in the case identified as No. 89-272, incorporated specific findings of fact and conclusions of law. Those findings included the facts that the District reached a preliminary conclusion, after inspecting Robbins's property, that he had a second mobile home on his property that did not have a separate water and sewer tap as required by the District; a hearing was held on November 1, 1988 at which Robbins was afforded the opportunity to demonstrate to the District why he should not be required to pay the required fees for a second connection to the District's systems; following that hearing, a decision was deferred until the foreman for the District had inspected Robbins's property; after the inspection and after the receipt of the report from the foreman, the District decided to file the lien against Robbins's property and gave him notice of the lien on December 15, 1988; and when Robbins did not satisfy the demands by the District for payment of the amount secured by the lien, the suit was filed to foreclose it. In the course of those proceedings, the parties agreed that there would be no need to obtain a foreclosure decree because Robbins had posted cash with the court so that, if the District prevailed, the District would be paid what it claimed to be owed out of the cash posted.

The parties agree that Robbins owned a mobile home that was properly connected to the District's systems prior to the spring of 1987. They also agreed that, prior to July of 1987, Robbins had moved a second mobile home onto the property and had connected it into the sewer line that serviced the first mobile home. The District then passed, in July of 1987, its resolution that required each individual structure to have its own separate water and sewer connections. One of Robbins's primary contentions before the District Court was that no services ever were rendered with respect to the second mobile home by the District, so that there was no subject matter to justify foreclosure of a lien. Ultimately, the district court determined that the District was in full compliance with all the governing statutes, rules, and regulations, and the District was granted a judgment on its lien. Robbins paid the amount due the District, and then prosecuted his appeal from the judgment of the...