Sundance Mountain Resort v. Union Telephone

• Decision Date: 19 January 2007
• Docket Number: No. 05-300.,05-300.
• Parties: SUNDANCE MOUNTAIN RESORT, INC.; and Cecil A. Cundy, Appellants (Defendants), v. UNION TELEPHONE COMPANY, a Wyoming corporation, Appellee (Plaintiff).
• Court: Wyoming Supreme Court

150 P.3d 191

2007 WY 11

SUNDANCE MOUNTAIN RESORT, INC.; and Cecil A. Cundy, Appellants (Defendants), v. UNION TELEPHONE COMPANY, a Wyoming corporation, Appellee (Plaintiff).

No. 05-300.

Supreme Court of Wyoming.

January 19, 2007.

COPYRIGHT MATERIAL OMITTED

Representing Appellants: Cecil A. Cundy of Cundy Law Office, Sundance, Wyoming.

Representing Appellee: Paul J. Drew of Drew Law Office, P.C., Gillette, Wyoming.

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

KITE, Justice.

[¶ 1] Cecil A. Cundy was held in contempt of court for violating a district court order enjoining him and Sundance Mountain Resort, Inc. (Sundance) from interfering with Union Telephone Company's (Union) access to its leasehold. Mr. Cundy appeals from the contempt order, claiming: 1) the district court improperly exercised its jurisdiction when it held the contempt hearing in Weston County rather than Crook County; and 2) the injunction sought to be enforced by the contempt proceeding exceeded the rights granted in the lease. We affirm.

ISSUES

[¶ 2] In his initial brief, Mr. Cundy states the issues as follows:

1. Whether or not the district court had jurisdiction for proceedings in Weston County, Wyoming in a contempt proceeding affecting an estate in real property in Crook County, Wyoming where Defendant/Appellant resided in Crook County, Wyoming.

2. Whether or not the injunction sought to be enforced exceeded the rights granted Appellee in its Communication Site Lease.

Union concurs in Mr. Cundy's initial statement of the issues, but asserts the first issue really concerns venue, not jurisdiction. In his reply brief, Mr. Cundy acknowledges the distinction between jurisdiction and venue and restates his first issue as follows:

Whether or not the District Court properly exercised jurisdiction by ordering Defendants to appear and show cause in Weston County in contempt proceedings affecting an estate in real property in Crook County where Appellants/Defendants resided in Crook County, Wyoming.

FACTS

[¶ 3] This appeal arises from facts we previously considered in Cundy v. Range Tel. Coop., Inc. and Union Telephone Co., 2005 WY 153, 123 P.3d 901 (Wyo.2005). As it relates to the current appeal, in Cundy we affirmed a district court order enjoining Sundance and Mr. Cundy from interfering with Union's use of its leasehold on Sundance Mountain and access to it across lands belonging to Sundance. The district court's order we affirmed in Cundy stated in pertinent part as follows:

IT IS THEREFORE ORDERED AND DECLARED by the court that the plaintiff Union Telephone Company has the right to ingress to and egress from its leasehold tract described above, over and across the above described lands of the defendant Sundance Mountain Resort, Inc.

* * *

IT IS FINALLY ORDERED that the defendants Sundance Mountain Resort, Inc. and Cecil A. Cundy be, and they hereby are, enjoined from interfering with the plaintiff's ingress to and egress from its above described leasehold across the lands of the defendant Sundance Mountain Resort, Inc., and are enjoined from interfering with the plaintiff's use of its leasehold tract.

[¶ 4] Prior to our decision in Cundy, but after the district court's order enjoining Mr. Cundy, Union attempted to arrange for delivery of concrete from Croell Redi-Mix, Inc. (Croell) to its leasehold. Mr. Cundy sent a letter to Croell stating in relevant part:

In no circumstances will Sundance Mountain Resort, Inc. grant permission to Union, or any agent thereof, to use the site or the right-of-way thereto. The right-of-way is strictly limited to that road which is known as the old road. Neither deviation from the course of the old road, nor damage to the old road will be tolerated in any circumstance. In particular, no travel whatsoever will be allowed upon the new roads constructed by Sundance Mountain Resort, Inc.

Union filed a motion for order to show cause why Sundance and Mr. Cundy should not be held in contempt for violating the district court's order enjoining them from interfering with Union's access to its leasehold. The district court entered an order to show cause stating that it appeared Mr. Cundy and Sundance had violated the injunction by interfering with Union's access. The district court ordered them to appear for a telephone conference on August 23, 2005.

[¶ 5] Several days later, upon the request of counsel, the district court vacated the telephone hearing and reset the hearing for personal appearance by the parties on the same date, but at the Weston County Courthouse in Newcastle, Wyoming. The record does not disclose who made the request to reschedule the hearing: counsel for Union, Mr. Cundy, or both.

[¶ 6] On the day of the hearing, Mr. Cundy presented an objection to holding the hearing outside the venue of Crook County. The district court proceeded with the hearing as scheduled. If a transcript was made of the hearing, it is not part of the appellate record. However, it appears that following the arguments of counsel the district court found Mr. Cundy had violated the injunction by interfering with Union's access to its leasehold, held him in contempt and asked Union to prepare a proposed order to that effect. Upon receipt of Union's proposed order, Mr. Cundy filed an objection to which he attached his own proposed order. Among other things, Mr. Cundy's proposed order stated that the district court had disregarded his objection to venue and proceeded with the contempt hearing, stating there was no courtroom available in Crook County on the date the hearing was scheduled. Subsequently, the district court entered an order of contempt different from Mr. Cundy's proposed order. We paraphrase the district court's findings as follows:

1. The court previously enjoined Sundance and Mr. Cundy from interfering with Union's access to its leasehold across Sundance land;

2. By his letter to Croell, Mr. Cundy interfered with Union's access to its leasehold;

3. By interfering with Union's access, Mr. Cundy is in indirect criminal contempt of this court;

4. Mr. Cundy may purge himself of this contempt by allowing Union and its agents, including Croell, to access Union's leasehold by the most efficient and practical route across Sundance lands, including access by cement trucks as may be necessary to Union's construction project on the lease.

The district court's order of contempt did not address Mr. Cundy's venue objection. Mr. Cundy timely appealed from the order of contempt. After Mr. Cundy filed his notice of appeal in the instant case, this Court published its opinion in Cundy affirming the order enjoining Sundance and Mr. Cundy from interfering with Union's access to its leasehold.

STANDARD OF REVIEW

[¶ 7] Determinations concerning venue are within the district court's discretion and we review the denial of a motion for change of venue only for abuse of discretion. Duke v. State, 2004 WY 120, ¶ 25, 99 P.3d 928, 939 (Wyo.2004). The power to summarily punish for contempt is likewise vested in the district court. Horn v. Welch, 2002 WY 138, ¶ 8, 54 P.3d 754, 758 (Wyo.2002). We will not overturn a district court contempt order absent an abuse of discretion. Id. The ultimate question in determining whether an abuse of discretion has occurred is whether the district court could reasonably conclude as it did. Id.

DISCUSSION

1. Venue

[¶ 8] Mr. Cundy asserts the district court improperly exercised its jurisdiction by holding the show cause hearing in a different county than the one in which the action was brought. Union contends it complied with the applicable venue statute by bringing the action in Crook County and there was nothing improper about convening the show cause hearing in Weston County. Despite Mr. Cundy's continued use of the word "jurisdiction" in his re-statement of the issues, the parties appear to be in agreement that the issue does not concern the district court's jurisdiction to hear and decide Union's motion; rather, the issue is one of venue.

[¶ 9] "Venue" as a modern legal concept refers to the county, district, or other geographical location in which, "for the sake of fairness, convenience, or other commanding policy considerations, a cause is to be tried." 77 Am.Jur.2d Venue § 1 (2006).

Venue is not a substantive right, but is a procedural matter designed for the convenience of the litigant and for allocating judicial resources. A venue provision is not a substantive limitation on court power; it neither limits nor creates specific powers in a specific court.

Id. As this Court has said, venue does not affect the court's power to hear and determine a matter and render a binding judgment. George v. Allen (In re Estate of George), 2003 WY 129, ¶ 18, 77 P.3d 1219, 1225 (Wyo.2003).

Venue is the place where the power to adjudicate is to be exercised, that is the place where the suit may or should be heard.

77 Am.Jur.2d Venue § 1.

[¶ 10] The instant case began as an action to enjoin Sundance and Mr. Cundy from interfering with Union's access to its leasehold. Thus, it was an action affecting an interest in real property and Wyo. Stat. Ann. § 1-5-101 (LexisNexis 2005) was the controlling venue provision. Section 1-5-101 provides in pertinent part:

(a) Actions for the following causes shall be brought in the county in which the subject of the action is situate, . . .:

(i) For the recovery of real property, or of an estate or interest therein;

[¶ 11] In accordance with this provision, Union brought the action in the county in which its leasehold is situated, Crook County. All papers concerning the action were filed there and, until the show cause hearing, all proceedings involving the action were held there. The question, therefore, is whether the district court abused its discretion by holding the show cause hearing in a county other than the one in which the action was brought.

[¶ 12] Under the circumstances presented, we conclude the district court did not abuse...