State, Wyoming Game and Fish Com'n v. Thornock

• Decision Date: 13 May 1993
• Docket Number: No. 92-205,92-205
• Citation: 851 P.2d 1300
• Parties: STATE of Wyoming, WYOMING GAME AND FISH COMMISSION, Appellant (Respondent), v. J.R. THORNOCK, Appellee (Petitioner).
• Court: Wyoming Supreme Court

Page 1300

851 P.2d 1300

STATE of Wyoming, WYOMING GAME AND FISH COMMISSION, Appellant (Respondent), v. J.R. THORNOCK, Appellee (Petitioner).

No. 92-205.

Supreme Court of Wyoming.

May 13, 1993.

Joseph B. Meyer, Atty. Gen., Mary B. Guthrie, Deputy Atty. Gen., and Ron Arnold, Sr. Asst. Atty. Gen., for appellant.

Margo Harlan Sabec, Casper, for appellee.

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

THOMAS, Justice.

The dispositive issue for this case is whether arbitrators, appointed pursuant to Wyo.Stat. § 23-1-901(d) (1991), are vested with authority to award to a landowner the cost of materials and expense of constructing a stack yard fence which had been built by the landowner claimant partially with materials that were furnished by the Game and Fish Commission. Collateral issues are raised concerning the appointment of an arbitrator whose brother was married to the claimant's sister ¹ and hostility of the spectators at the arbitration hearing, which is claimed to have caused counsel for the Game and Fish Commission to limit his participation in the hearing. We are satisfied the statute does not authorize the award of the construction expenses claimed in this instance, and the decision of the district court, which affirmed the arbitration award, must be reversed and the award set aside. We find no error with respect to the other issues that assist in the disposition of this appeal.

The State of Wyoming, Wyoming Game and Fish Commission (Commission), as appellant in this case, summarizes the issues in its brief in this way:

I. Whether the arbitrators exceeded their powers by awarding monies for improvements not damaged by wildlife.

II. Whether there was partiality by an arbitrator related to the claimant, necessitating setting aside the award.

III. Whether the arbitrator's action in denying the appellant counsel necessitates setting aside the award.

Thornock, as appellee, describes the issues as follows:

I. The arbitration award was for actual damages, and was wholly within the authority of the statutory arbitration board. The district court judgment that the arbitrators did not exceed their powers in making the award should be affirmed.

A. Wyoming Statutes and regulations require payment of actual damages.

B. "Actual damages" are compensatory damages.

C. "Actual damages" include awards in restitution for unjust enrichment under quasi-contract.

D. The state may be liable under quasi-contract.

E. Appellee constructed the "game fence" yard at appellant's request and is entitled to restitution therefor.

F. Appellee constructed the "game fence" yard under duress from appellant and is entitled to restitution therefor.

G. The measure of actual damages in a restitution award is the value of labor and materials furnished, plus interest.

H. Arbitration award of actual damages was within the authority of the arbitration board and the statutory waiver of sovereign immunity.

I. The award does not include any award on punitive damages.

II. Appellant has failed to prove evident partiality or bias of an arbitrator which prejudiced its rights.

III. Appellant waived, by implied waiver, its rights to object to arbitrator Birch on the ground of partiality or bias, and cannot withdraw such waiver or reclaim its right to object.

IV. The arbitration board did not prohibit appellant's counsel from participating in the proceeding, and the action of the arbitrators did not prejudice the rights of appellant.

Thornock owns a ranch in Lincoln County. During the summer months, he farms his irrigated land and cuts and stores his hay crop in stacks near his fields. Thornock had constructed a "cow fence" style of stack yard enclosure which he maintained around his haystacks to keep his livestock out of the stored hay.

In 1991, Thornock presented several claims to the Wyoming Game and Fish Department (Department) for damage to stored hay and fences surrounding the stack yards caused by elk. The Department paid $2,795.80 on these claims, and those amounts were accepted by Thornock and are not at issue in this case. In addition to his other claims for damage to hay and fences, Thornock filed a claim with the Department for the cost of certain building materials and the expense of labor in constructing a new elk-proof stack yard fence. On April 10, 1991, without any charge to Thornock, some materials to be used in constructing this new fence were furnished to him by the Department. At the time the materials were delivered to Thornock, he was advised it was not the policy of the Department to pay construction costs nor to provide material for gates.

Thornock proceeded to construct the new stack yard fence designed to keep elk out of the hay. He kept track of his costs and, about August 20, 1991, submitted a claim in the amount of $1,850.50 to the Department. In that claim, Thornock requested that the Department pay the expense of the labor and the cost of the additional materials used to build the stack yard fence designed to keep wildlife away from his hay. The claim was presented pursuant to Wyo.Stat. § 23-1-901 (1991), which provides, in pertinent part:

(a) Any landowner, lessee or agent whose property is being damaged by any of the big or trophy game animals or game birds of this state shall, not later than fifteen (15) days after the damage is discovered by the owner of the property or the representative of the owner, report the damage to the nearest game warden, damage control warden, supervisor or commission member.

(b) Any landowner, lessee or agent claiming damages from the state for injury or destruction of property by big or trophy game animals or game birds of this state shall present a verified claim for the damages to the Wyoming game and fish department not later than sixty (60) days after the damage or last item of damage is discovered. The claim shall specify the damage and amount claimed. As used in this subsection, "verified claim" means a claim which the claimant has signed and sworn to be accurate before a person authorized to administer oaths.

In a letter dated September 27, 1991, the Department rejected this claim on the ground it was not a claim for damages caused by wildlife. Thornock appealed the decision of the Department to the Commission, pursuant to Wyo.Stat. § 23-1-901(c), which provides:

(c) The department shall consider the claims based upon a description of the livestock damaged or killed by a trophy game animal, the damaged land, growing cultivated crops, stored crops, seed crops, improvements and extraordinary damage to grass. Claims shall be investigated by the department and rejected or allowed within ninety (90) days after submission, and paid in the amount determined to be due. In the event the department fails to act within ninety (90) days, the claim, including interest based on local bank preferred rates, shall be deemed to have been allowed. No award shall be allowed to any landowner who has not permitted hunting on his property during authorized hunting seasons. Any person failing to comply with any provision of this section is barred from making any claim against the department for damages. Any claimant aggrieved by the decision of the department may appeal to the commission within thirty (30) days after receipt of the decision of the department as provided by rules of practice and procedure promulgated by the commission. The commission shall review the department decision at its next meeting following receipt of notice of request for review. The commission shall review the investigative report of the department, and it may approve, modify or reverse the decision of the department.

The Commission, upon review, rejected the claim for the same reason as the one given by the Department, and Thornock was notified of that decision on March 5, 1992.

On April 17, 1992, Thornock pursued the statutory claim process by calling for arbitration pursuant to Wyo.Stat. § 23-1-901(d). This section of the statute provides:

(d) Within ninety (90) days after receiving notice of the decision of the commission, the claimant may in writing to the department call for arbitration. Within fifteen (15) days after the department receives the call for arbitration, the claimant and the department shall each appoint a disinterested arbitrator who is an elector residing in the county where the damage occurred and notify each other of the appointment. Within twenty (20) days after their appointment, the two (2) arbitrators shall appoint a third arbitrator possessing the same qualifications. If the third arbitrator is not appointed within the time prescribed, the judge of the district court of the county or the court commissioner in the absence of the judge shall appoint the third arbitrator upon the application of either arbitrator.

A panel of three arbitrators was selected, which, in accordance with the required notice, heard the case on June 29, 1992, in Cokeville. On July 9, 1992, the Commission received a decision from the arbitrators, which awarded $850 to Thornock on his claim. The arbitration award then was appealed to the District Court of the Third Judicial District in Lincoln County by the Commission in accordance with Wyo.Stat. § 23-1-901(e). On September 2, 1992, the district court entered its order denying the petition to vacate the arbitration award and confirming the award. The Commission has taken a timely appeal from that order. ²

In his brief in this appeal, Thornock has asserted a plethora of facts, without including any page references to the record as required by Wyo.R.App.P. 5.01(3), now found in Wyo.R.App.P. 7.01(e)(2). The Commission has complied with this rule, because references to the record are encompassed in its Statement of the Facts. In order to provide a factual background to address the legal issues, we have relied upon the version of the proceedings in this case that the Commission has articulated in its Statement of the Case. Thornock failed to include...