Hopeful, a Wyoming partnership consisting of Edward F. Murray, Jr., Donald F. Murray, William M. Murray, Mary Ann Kulas f/k/a Mary Ann Hollis, and Ted Simola Hopeful Ltd., a Wyoming partnership consisting of Edward F. Murray, Jr., Donald F. Murray, William M. Murray, Mary Ann Hollis, and Ted Simola and Ted Simola, an individual v. Etchepare, L.L.C., a Wyoming limited liability company Ned Murray Co., a Wyoming partnership GBK Investments, L.L.C., an Oklahoma limited liability company and EOG Resources, Inc., a Delaware corporation , 2023 WY 33 ( 2023 )

THE SUPREME COURT, STATE OF WYOMING
2023 WY 33APRIL TERM, A.D. 2023
April 20, 2023
HOPEFUL, a Wyoming partnership
consisting of Edward F. Murray, Jr.,
Donald F. Murray, William M. Murray,
Mary Ann Kulas f/k/a Mary Ann Hollis, and
Ted Simola; HOPEFUL LTD., a Wyoming
partnership consisting of Edward F. Murray,
Jr., Donald F. Murray, William M. Murray,
Mary Ann Hollis, and Ted Simola; and
TED SIMOLA, an individual,
Petitioners,
S-22-0171
v.
ETCHEPARE, L.L.C., a Wyoming limited
liability company; NED MURRAY CO.,
a Wyoming partnership;
GBK INVESTMENTS, L.L.C., an
Oklahoma limited liability company; and
EOG RESOURCES, INC., a Delaware
corporation,
Respondents.
Original Proceeding
Petition for Writ of Review
District Court of Laramie County
The Honorable Peter H. Froelicher, Judge
Representing Petitioners:
Bernard Q. Phelan, The Phelan Law Firm, Cheyenne, Wyoming. Argument by Mr.
Phelan.
Representing Etchepare, L.L.C. and Ned Murray Co.:
Jason D. Wasserburger and Rio D. Smith, WSH Law, P.C., Cheyenne, Wyoming.
Argument by Mr. Wasserburger.
Representing GBK Investments, L.L.C.:
Amanda K. Roberts and J. Kyle Hendrickson, Lonabaugh and Riggs, LLP,
Sheridan, Wyoming.
Representing EOG Resources, Inc.:
Lori A. McMullen, Lindsay A. Woznick, and Amanda M. Good, Crowley Fleck
PLLP, Cheyenne, Wyoming. Argument by Ms. Good.
Before FOX, C.J., and KAUTZ, GRAY, and FENN, JJ., and PEASLEY, D.J.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. Readers are
requested to notify the Clerk of the Supreme Court, Supreme Court Building, Cheyenne, Wyoming 82002, of
any typographical or other formal errors so that correction may be made before final publication in the
permanent volume.
GRAY, Justice.
[¶1] Hopeful partnership, Hopeful Ltd. (together, Hopeful entities), and Ted Simola, an
individual, (Petitioners) filed a Petition for Writ of Review with this Court seeking
interlocutory review of the district court’s orders denying their motion to dismiss and
motion to set aside default. Petitioners claim the district court lacked subject matter
jurisdiction and personal jurisdiction in the underlying declaratory judgment action
because all parties were served by publication and no summons were issued. We find the
district court had subject matter jurisdiction. The district court erred, however, in finding
the service by publication conferred personal jurisdiction over the defendants with a known
address. While the Hopeful entities waived their objections to personal jurisdiction by
voluntarily submitting to the jurisdiction of the district court, the district court abused its
discretion in denying their motion to set aside the default judgment. Affirmed in part and
reversed in part.
ISSUES
[¶2] We phrase the issues as:
1. Does the failure to issue a summons to parties served by
publication deprive the district court of subject matter
jurisdiction and/or personal jurisdiction?
2. Did service by publication on parties with a known
address in Wyoming confer personal jurisdiction?
3. Did Hopeful partnership, Hopeful Ltd., and Ted Simola
waive personal service?
4. Did the district court err in entering a default judgment
and denying the motion to set aside default?
FACTS
[¶3] On March 26, 2021, Etchepare, a Wyoming limited liability company, filed a
Petition for Quiet Title and Declaratory Judgment naming Hopeful partnership and Hopeful
Ltd., two Wyoming entities, and fourteen other entities, individuals and unknown claimants
as defendants. The partners in both Hopeful entities consisted of the same individuals,
Edward F. Murray, Jr., Donald F. Murray, William M. Murray, Mary Ann Kulas (nee
1
Hollis), 1 and Ted Simola. 2 The petition sought to establish ownership of mineral interests
located in Laramie County, Wyoming.
[¶4] In conjunction with the filing of its petition, Etchepare filed an Affidavit for Service
by Publication. The affidavit stated that the address of one defendant, a Pennsylvania
entity, could not be ascertained after a reasonable and diligent search and that there were
unknown putative defendants with claims against the identified mineral interests. The
affidavit declared, “All other defendants have addresses which are known or through
reasonable diligence were ascertained.” The affidavit did not contain the known addresses
of the defendants but asserted that “after the first publication” “the notice of publication
. . . will be mailed to each defendant whose address is known by certified mail.” On March
31, Notice of Complaint and Service by Publication, signed by the district court clerk, was
sent by certified mail to all defendants with a known address. Etchepare filed Proof of
Service and Proof of Publication on May 6, 2021. Service by publication was completed
on May 21, 2021, which was the last date of publication. No defendant was personally
served and no summons were issued.
[¶5] Etchepare filed two Applications for Entry of Default, one on May 24, 2021, and
the other on May 26, 2021. Together, these applications requested an entry of default
against ten defendants but did not request entry of default against the Hopeful entities or
Ted Simola. Each application was granted by the district court on the same day it was
filed. On June 8, 2021, Ned Murray Co. and Etchepare filed a Joint Motion and Stipulation
to Realign Parties asking that Ned Murray Co. be removed as a Defendant and named as a
Plaintiff on the grounds that Ned Murray Co. agreed with Etchepare’s claims regarding the
current mineral interests. The same day, Ned Murray Co. and Etchepare filed a Motion to
Bifurcate the claims against the Hopeful entities from the other defendants stating:
Etchepare and Ned Murray Co. are in agreement with the
allegations Etchepare made in its [petition] regarding the
mineral interests owned by Hopeful and Hopeful Ltd. . . .
Issues have arisen regarding the distribution of the mineral
interests of Hopeful and Hopeful Ltd. between the current
partners Ned Murray Co.,[3] Ted Simola, and Mary Ann Kulas
. . . . These issues do not concern Etchepare nor involve the
mineral interests to which Etchepare seeks to quiet title to and
obtain a declaratory judgment . . . . Defendant Ted Simola has
1
Mary Ann Kulas was known as Mary Ann Hollis at the inception of the partnerships.
2
William M. Murray died on March 23, 1990. Edward F. Murray, Jr., died on March 7, 2000. Donald F.
Murray died on May 29, 2002. Ms. Kulas and Mr. Simola are the surviving original partners of the Hopeful
defendants.
3
Ned Murray Co. was not named as a partner in the Hopeful entities in the Complaint or in the Motion to
Bifurcate. During the proceedings, an issue arose regarding the status of Ned Murray Co. in relation to the
interests of Edward F. Murray, Jr.
2
raised concerns regarding ownership of the partnership
interests, distribution of the mineral interests to the current
partners, payment of proceeds of production, and several other
issues that remain unresolved.
Etchepare and Ned Murray Co. requested the bifurcation so that claims against the other
parties might proceed while the Hopeful entities addressed their unique claims in a separate
proceeding.
[¶6] On June 14, 2021, Mary Ann Kulas and Ted Simola filed a joint Answer of
Defendants in their individual capacities. 4 They affirmatively asserted the Hopeful entities
dissolved as a matter of law in March 1990 upon the death of William M. Murray and that
Ms. Kulas and Mr. Simola now held the mineral interests, together with certain other
parties, as tenants in common.
[¶7] The district court granted the motion to realign the parties on July 2, 2021, and on
August 23, 2021, issued its order granting the bifurcation of the proceedings. 5 On
September 16, 2021, the district court entered an order granting a Partial Decree for Quiet
Title and Declaratory Judgment. The order determined the interests of all defendants,
including the Hopeful partnership, Hopeful Ltd., and Mr. Simola, subject to the issues
addressed in the Order to Bifurcate.
[¶8] The next relevant procedural event occurred on January 5, 2022, when the Hopeful
entities, Ms. Kulas, and Mr. Simola filed a Motion to Amend Answer Clarifying the Status
of the Partnerships; Asserting Counterclaims for Quiet Title, and Conversion of Funds and
Cross Claims for Quiet Title and Trespass and Third Party Action for Conversion (Motion
to Amend). Ned Murray Co. filed an objection to the Hopeful entities’ Motion to Amend
asserting the Hopeful entities had not answered the Petition or entered an appearance.
[¶9] A hearing was set for March 23, 2022. On the morning of the hearing, Etchepare
and Ned Murray Co. filed an Application for Entry of Default against the Hopeful entities
for failure to timely answer the petition. The court orally denied the Hopeful entities’
Motion to Amend finding they had never filed an answer, no attorney had previously
entered an appearance on behalf of Hopeful partnership or Hopeful Ltd and as a result,
there was no answer to amend. The district court entered default against the Hopeful
entities following the hearing.
4
While Mr. Simola was named as an individual defendant based on his separate interest in some of the
mineral leases, Ms. Kulas was sued only in her capacity as a partner in the Hopeful entities. Her response
as an individual went unchallenged until recently. The parties have not resolved whether she will continue
to be an individual party to this suit.
5
The Order to Bifurcate described Ned Murray Co. as a current partner in the Hopeful partnership and
Hopeful Ltd.
3
[¶10] Two days later, the Hopeful entities filed an objection to the entry of default. They
claimed they had never been served a summons, were not properly served, and had no
obligation to answer. The Hopeful entities averred that they were amenable to accepting
personal service, and if service of process was accomplished, they were ready to proceed
with this matter. In an alternative request for relief, they requested the matter be dismissed
for lack of jurisdiction.
[¶11] Five days after the Hopeful entities’ motion to set aside default, the district court
issued an Order Granting [Mr.] Simola’s and [Ms.] Kulas’ Motion to Amend Answer. This
order did not address the motion to set aside default against the Hopeful entities.
[¶12] On April 13, 2022, the district court entered its written partial order denying the
Hopeful entities’ motion to amend. On April 19, 2022, the Hopeful entities renewed their
motion to dismiss the case based on jurisdictional defects.
[¶13] The district court held a hearing on the Hopeful entities’ Motion to Set Aside Default
on June 1, 2022. During the Hopeful entities’ argument, the district court read the
following statement from JAG v. State:
In order for a court to acquire jurisdiction over a
defendant, that defendant must be properly served or must
“voluntarily” appear. A judgment entered without the court
having jurisdiction is null and void. A defendant may waive
his right to challenge a court’s jurisdiction. Such a challenge
should be made at the defendant’s soonest opportunity. Failure
to timely broach the issue with the court may result in waiver
of that defense. Most importantly for this case, where a
defendant appears voluntarily, without questioning the court’s
personal jurisdiction, that appearance is the equivalent of
proper service of process. We have held that a party will be
deemed to have appeared in an action, even though no formal
pleadings have been entered, when contacts between the
parties clearly demonstrate an intent to defend.
JAG v. State, Dep’t of Fam. Servs., Div. of Pub. Assistance & Soc. Servs., 2002 WY 158,
¶ 13, 56 P.3d 1016, 1019 (Wyo. 2002) (citations omitted). The district court asked why
that statement would not apply to the Hopeful entities in this case. The Hopeful entities’
attorney responded, “The keyword is ‘service.’ . . . [S]ervice is delivering the summons
with the complaint together so as to give notice to the defendant of the courts taking
jurisdiction having issued a summons. There must be a summons.”
[¶14] Ned Murray Co. moved to dismiss the motion to set aside default. In an oral ruling,
the district court dismissed the request to set aside default. It held the Hopeful entities did
4
not present any evidence in relation to the three-factor test to set aside default: “whether
the plaintiff [would] be prejudiced, whether the defendant has a meritorious defense, and
three, whether there’s culpable conduct of the defendant that led to the default.” The
district court further ruled that service by publication under W.R.C.P. 4(k) does not contain
a requirement that a summons be issued before service is valid. After this ruling, Ned
Murray Co. requested that the court deny the Hopeful entities’ motion to dismiss the
complaint for lack of subject matter and personal jurisdiction based on their failure to prove
insufficient service of process by clear and convincing evidence.
[¶15] The district court entered two written orders on June 22, 2022, one denying Hopeful
entities’ motion to set aside default and one denying the motion to dismiss. In the order
denying the motion to set aside default, the district court reiterated its oral finding that the
Hopeful entities had failed to present sufficient evidence to support their motion under
W.R.C.P. 55 (Rule 55). In the order denying the motion to dismiss, the court ruled that
Etchepare and Ned Murray Co. complied with all of the rules regarding service by
publication, and there is no requirement for a summons when serving a defendant by
publication. The district court held the actions of Mr. Simola and Ms. Kulas did not inure
a benefit to the Hopeful entities and constitute an answer or appearance on behalf of the
Hopeful entities prior to default and Mr. Simola and Ms. Kulas could not and did not
represent all of the partnership interest in the Hopeful entities, which are currently in
opposition to one another.
[¶16] The Hopeful entities and Mr. Simola filed a Petition for Writ of Review with this
Court on July 7, 2022. After reviewing all responsive pleadings, the petition was granted
on August 2, 2022. The district court issued an order staying all current pleadings,
deadlines to respond to pleadings, and a hearing scheduled for August 26, pending this
Court’s resolution of the writ of review.
STANDARD OF REVIEW
[¶17] When a writ of review is granted, the reviewing court “may set forth the particular
issue or point of law which will be considered.” W.R.A.P. 13.07(a). The reviewing court’s
review is not limited to only an issue defined by the respondent. Instead the reviewing
court may “reverse, vacate, remand or modify the decision for errors appearing on the
record.” W.R.A.P. 13.08; Wofford v. City of Laramie, 2016 WY 59, ¶ 14, 375 P.3d 740,
745 (Wyo. 2016) (quoting Bd. of Cnty. Comm’rs for Sublette Cnty. v. Exxon Mobil Corp.,
2002 WY 151, ¶ 21, 55 P.3d 714, 721 (Wyo. 2002)).
[¶18] Jurisdictional questions are reviewed de novo review pursuant to “the inherent
power, and the duty, to address jurisdictional defects on appeal . . . .” Walton v. State ex
rel. Wood, 2002 WY 108, ¶ 6, 50 P.3d 693, 695 (Wyo. 2002) (quoting Gookin v. State
Farm Fire & Cas. Ins. Co., 826 P.2d 229, 232 (Wyo. 1992)). “If a lower court acts without
jurisdiction, ‘this court will notice the defect and have jurisdiction on appeal, not on the
5
merits, but merely for the purpose of correcting the error of the lower court in maintaining
the suit.’” Id. (quoting Gookin, 826 P.2d at 232).
[¶19] “We review the question of whether the district court correctly interpreted the rules
of civil procedure de novo.” Dishman v. First Interstate Bank, 2015 WY 154, ¶ 13, 362
P.3d 360, 365 (Wyo. 2015) (citing Windham v. Windham, 2015 WY 61, ¶ 12, 348 P.3d
836, 840 (Wyo. 2015) (applying de novo standard of review to Rule 37 interpretation)).
The words of a court rule, like those of a statute, must be taken
and construed in the sense in which they were understood and
intended at the time the rule was promulgated. We do not
examine the rules in isolation, but instead read them in light of
one another and interpret them according to their purpose.
Shamrock Dev., Inc. v. Smith, 754 N.W.2d 377, 382 (Minn. 2008) (citations and internal
quotation marks omitted).
ANALYSIS
I. Does the failure to issue a summons to parties served by publication deprive the
district court of subject matter jurisdiction and/or personal jurisdiction?
[¶20] This appeal raises issues of subject matter jurisdiction and personal jurisdiction
based on service by publication. The Hopeful entities claim that the failure to serve the
defendants with a summons deprived the district court of both subject matter jurisdiction
and personal jurisdiction. With equal vehemence, Ned Murray Co. and Etchepare argue
that subject matter jurisdiction vested with the district court upon filing their claim, service
of process by publication is proper if there is but one defendant who resides out of state
with an unknown address, and service by publication on this premise is sufficient to
accomplish personal jurisdiction over all parties. For reasons discussed below, both
arguments are flawed.
A. Subject Matter Jurisdiction
[¶21] The Hopeful entities claim that W.R.C.P. 4 requires a plaintiff to request a summons
in every case before subject matter jurisdiction resides with the district court. “Subject
matter jurisdiction is the power to hear and determine cases of the general class to which
the proceedings in question belong.” MH v. First Jud. Dist. Ct. of Laramie Cnty., 2020
WY 72, ¶ 5, 465 P.3d 405, 407 (Wyo. 2020) (quoting Devon Energy Prod. Co., LP v.
Grayson Mill Operating, LLC, 2020 WY 28, ¶ 11, 458 P.3d 1201, 1205 (Wyo. 2020)). “If
a court lacks subject matter jurisdiction, ‘action taken by that court, other than dismissing
the case, is considered to be null and void.’” Id. (quoting Devon, ¶ 11, 458 P.3d at 1205).
Subject matter jurisdiction cannot be waived. Pilcher v. Elliott, 2020 WY 130, ¶ 16, 473
6
P.3d 1251, 1255 (Wyo. 2020). When “construing the subject matter jurisdiction of district
courts, we presume that jurisdiction exists and any intent to limit it must be clearly stated.”
MH, ¶ 5, 465 P.3d at 407 (citing Harmon v. Star Valley Med. Ctr., 2014 WY 90, ¶ 48, 331
P.3d 1174, 1188 (Wyo. 2014)).
[¶22] Wyoming courts derive their subject matter jurisdiction from the Wyoming
Constitution art. 5, § 10 which states the district courts have “original jurisdiction of all
causes both at law and in equity . . . in which jurisdiction shall not have been by law vested
exclusively in some other court[.]” “Our precedent makes clear that Wyoming courts have
jurisdiction over mineral disputes between private parties, even where federal leases may
be concerned.” BTU W. Res., Inc. v. Berenergy Corp., 2019 WY 57, ¶ 13, 442 P.3d 50, 54
(Wyo. 2019) (citations omitted).
[¶23] The Hopeful entities argue that even if the district court had general jurisdiction
over the matter, failure of a plaintiff to request a summons invoking the court’s authority
prevents subject matter jurisdiction over any matter until a summons is issued pursuant to
W.R.C.P. 4. They cite to a line of North Carolina cases which hold that a failure to serve
a summons negates personal jurisdiction, but a failure to issue a summons is a matter of
subject matter jurisdiction. Matter of Mitchell, 485 S.E.2d 623, 624 (N.C. Ct. App. 1997)
(“Where no summons is issued the court acquires jurisdiction over neither the persons nor
the subject matter of the action.” (citing Swenson v. All Am. Assur. Co., 235 S.E.2d 793(N.C. Ct. App. 1977))); Wayne Cnty. ex rel. Williams v. Whitley, 323 S.E.2d 458, 461 (N.C.
Ct. App. 1984) (“Under G.S. 1A–1, Rule 4(a), a summons must be issued within five days
of the filing of the complaint. Where a complaint has been filed and a proper summons
does not issue within the five days allowed under the rule, the action is deemed never to
have commenced.”).
[¶24] The North Carolina Supreme Court has since negated the holding in Mitchell. In In
re K.J.L., the court held that the failure to legally issue a summons does not implicate the
court’s jurisdiction over the subject matter of an action. In re K.J.L., 677 S.E.2d 835, 837–
38 (N.C. 2009). “The allegations of a complaint determine a court’s jurisdiction over the
subject matter of the action,” and “the summons affects jurisdiction over the person rather
than the subject matter.” Id. at 837.
[¶25] Wyoming law is similar. “[S]ubject matter jurisdiction is invoked with the filing of
a complaint stating a case belonging to a general class over which the authority of the court
extends.” Brown v. City of Casper, 2011 WY 35, ¶ 44, 248 P.3d 1136, 1146 (Wyo. 2011)
(citing State v. Kusel, 29 Wyo. 287, 297, 213 P. 367, 369 (1923)). “[A] court does not lose
subject matter jurisdiction over an action for failure to comply with statutory procedural
requirements unless the statute contains an ‘unequivocal expression’ that failure to comply
shall result in a loss of jurisdiction.” Linch v. Linch, 2015 WY 141, ¶ 32, 361 P.3d 308,
316 (Wyo. 2015) (citations omitted); Fleet v. Guyette, 2020 WY 78, ¶¶ 17–18, 466 P.3d
812, 818–19 (Wyo. 2020).
7
[¶26] Rule 4 contains no “unequivocal expression” that the failure to issue a summons
causes a loss of subject matter jurisdiction. Indeed, we have held that “[a] summons is ‘the
means of compelling a defendant to subject his person to the jurisdiction of the court from
which the summons issues.’” Hoke v. Motel 6 Jackson, 2006 WY 38, ¶ 7, 131 P.3d 369,
374 (Wyo. 2006) (emphasis added) (quoting Pease Bros. v. Am. Pipe & Supply Co., 522
P.2d 996, 1001 (Wyo. 1974)).
[¶27] The district court acquired subject matter jurisdiction on the filing of Etchepare’s
complaint. W.R.C.P. 3 (“A civil action is commenced by filing a complaint with the
court[.]”).
II. Did service by publication on parties with a known address in Wyoming confer
personal jurisdiction?
A. Personal Jurisdiction
[¶28] “[W]hile subject matter jurisdiction refers to the power of a court to hear and
determine certain classes of cases,” “[p]ersonal jurisdiction refers to the power of a court
to make an adjudication applicable to a person.” Pilcher, ¶ 16, 473 P.3d at 1255 (quoting
Crofts v. State ex rel. Dep’t of Game & Fish, 2016 WY 4, ¶ 38, 367 P.3d 619, 628 (Wyo.
2016)). Subject matter jurisdiction cannot be waived. Personal jurisdiction, however, can
be waived if a party does not object to personal jurisdiction at the earliest opportunity.
Pilcher, ¶ 16, 473 P.3d at 1255; Cotton v. Brow, 903 P.2d 530, 531 (Wyo. 1995).
[¶29] “The proper service of process is necessary to acquire [personal] jurisdiction under
the due process provisions of both the federal and Wyoming constitutions. Wyo. Const.
art. 1, § 6; U.S. Const. amend. XIV, § 1.” Gookin, 826 P.2d at 232. “It has long been the
rule that a valid judgment imposing a personal obligation or duty in favor of the plaintiff
may be entered only by a court having jurisdiction over the person of the defendant.” Id.
(quoting Kulko v. Superior Ct. of California In & For City & Cnty. of San Francisco, 436
U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978)). “While a court may have subject
matter jurisdiction, it is clear that without adequate notice to the defendant and opportunity
to be heard, jurisdiction does not exist for the proceeding.” Gookin, 826 P.2d at 233 (citing
Goss v. Goss, 780 P.2d 306, 310 (Wyo. 1989); 62B Am. Jur. 2d Process § 4 (1990)).
[¶30] Courts allow infringement on the fundamental due process rights to notice and an
opportunity to be heard only to the extent permitted by legislative or judicially promulgated
rules of procedure. Goss, 780 P.2d at 310. The general rule requires strict compliance
with statutes or rules setting forth the requirements for service of process. Id. (citing
Midway Oil Corp. v. Guess, 714 P.2d 339, 342 (Wyo. 1986)).
8
[¶31] The Hopeful entities claim the district court did not have jurisdiction because they
were never personally served with a summons. The district court held that, because
Etchepare filed an affidavit stating that, after a diligent search, the whereabouts of one of
the defendants could not be found, and that there were unknown defendants, all of the
defendants could be served by publication. It found that Etchepare had complied with
the requirements of service by publication, and therefore the court had personal jurisdiction
over all the defendants, including the Hopeful entities. The district court also determined
that a summons was not necessary when accomplishing service by publication.
[¶32] We begin by discussing the propriety of applying service by publication to all
defendants if only one named defendant or the presence of unknown defendants falls within
the rule’s requirements. We then address whether a summons is required when service of
process is accomplished by publication.
B. Service of Process
[¶33] W.R.C.P. 4 (Rule 4) governs the service of process, consistent with specific
Wyoming statutory requirements. Rule 4 divides service of process into two categories:
personal service and constructive service. In Int. of DG, 825 P.2d 369, 374–77 (Wyo.
1992).
1. Personal Service
[¶34] Personal service is the preferred method to notify a defendant subject to a lawsuit.
First Wyo. Bank, N. A., Rawlins v. Trans Mountain Sales & Leasing, Inc., 602 P.2d 1219,
1225 (Wyo. 1979). Under Rule 4, personal service begins with the issuance of a summons:
Rule 4. Summons.
(a) Contents.—A summons must:
(1) name the court and the parties;
(2) be directed to the defendant;
(3) state the name and address of the plaintiff’s attorney
or—if unrepresented—of the plaintiff;
(4) state the time within which the defendant must appear
and defend;
9
(5) notify the defendant that a failure to appear and defend
may result in a default judgment against the defendant for
the relief demanded in the complaint;
(6) be signed by the clerk; and
(7) bear the court’s seal.
(b) Issuance.—On or after filing the complaint, the plaintiff
may present a summons to the clerk for signature and seal. If
the summons is properly completed, the clerk must sign, seal,
and issue it to the plaintiff for service on the defendant. A
summons—or a copy of a summons that is addressed to
multiple defendants—must be issued for each defendant to be
served.
(c) By Whom Served.—Except as otherwise ordered by the
court, process may be served:
(1) By any person who is at least 18 years old and not a
party to the action;
(2) At the request of the party causing it to be issued, by the
sheriff of the county where the service is made or sheriff’s
designee, or by a United States marshal or marshal’s
designee;
(3) In the event service is made by a person other than a
sheriff or U.S. marshal, the amount of costs assessed
therefor, if any, against any adverse party shall be within
the discretion of the court.
(d) Personal Service.—The summons and complaint shall be
served together. The plaintiff shall furnish the person making
service with such copies as are necessary.
W.R.C.P. 4(a)–(d).
2. Service by Publication
[¶35] “The second category of service is generally defined to be constructive service.”
DG, 825 P.2d at 375. “Constructive service differs significantly from personal service
made within the jurisdiction and may include service by publication[.]” Id. “Publication
10
is an inferior form of service to personal delivery.” First Wyo. Bank, 602 P.2d at 1225
(citing In re Lonquest’s Est., 526 P.2d 994, 998 (Wyo. 1974)). Service by publication must
strictly conform to the authorizing statute and Rule 4. Id.[¶36] Rule 4 limits service by publication to specific defendants. Rule 4(k) states:
(k) Service by Publication.—Service by publication may be
had where specifically provided for by statute, and in the
following cases:
(1) When the defendant resides out of the state, or the
defendant’s residence cannot be ascertained, and the
action is:
(A) For the recovery of real property or of an estate or
interest therein;
(B) For the partition of real property;
(C) For the sale of real property under a mortgage,
lien or other encumbrance or charge;
(D) To compel specific performance of a contract of
sale of real estate;
W.R.C.P. 4(k)(1) (emphasis added). Here, the Hopeful entities usual place of business was
Laramie County, and at least one of the original surviving partners resided in Laramie
County with a known address.
[¶37] To ensure each defendant is eligible for service by publication, Rule 4(l) requires
counsel to file an affidavit explaining why that defendant qualifies for service by
publication. Rule 4(l) states:
(l) Requirements for Service by Publication.—
(1) Affidavit Required.—Before service by publication
can be made, an affidavit of the party, or the party’s agent
or attorney, must be filed stating:
(A) that service of a summons cannot be made within
this state, on the defendant to be served by publication,
and
11
(B) stating the defendant’s address, if known, or that
the defendant’s address is unknown and cannot with
reasonable diligence be ascertained, and
(C) detailing the efforts made to obtain an address, and
(D) that the case is one of those mentioned in
subdivision (k), and
(E) when such affidavit is filed, the party may proceed
to make service by publication.
(2) Publication and Notice to Clerk.
(A) Address in publication.—In any case in which
service by publication is made when the address of a
defendant is known, it must be stated in the publication.
(B) Notice to and from clerk.—Immediately after the
first publication the party making the service shall
deliver to the clerk copies of the publication, and the
clerk shall mail a copy to each defendant whose name
and address is known by registered or certified mail and
marked “Restricted Delivery” with return receipt
requested, directed to the defendant’s address named
therein, and make an entry thereof on the appearance
docket.
(C) Affidavit at time of hearing.—In all cases in which
a defendant is served by publication of notice and there
has been no delivery of the notice mailed to the
defendant by the clerk, the party who makes the service,
or the party’s agent or attorney, at the time of the
hearing and prior to entry of judgment, shall make and
file an affidavit stating
(i) the address of such defendant as then known
to the affiant, or if unknown,
(ii) that the affiant has been unable to ascertain
the same with the exercise of reasonable diligence,
and
12
(iii) detailing the efforts made to obtain an
address.
Such additional notice, if any, shall then be given
as may be directed by the court.
W.R.C.P. 4(l) (emphasis added).
[¶38] In this case, once Etchepare identified one defendant that could not be found and
that there were possibly other unknown defendants, it eschewed personal service on all
defendants. As conceded by counsel in oral argument, Etchepare could have personally
served the Hopeful entities and the surviving original partners. Nonetheless, it determined
that, due to the large number of defendants in this lawsuit, personal service on each
defendant was “impracticable.” The district court validated Etchepare’s choice, finding
Etchepare had complied with all Rule 4 requirements regarding service by publication
resulting in its personal jurisdiction over all defendants. 6 As discussed below, the
assumption that one defendant’s due process rights can control the rights of all other
defendants is contrary to the specific language in Rule 4. Etchepare did not comply with
the rule’s specific requirements to effectuate service.
[¶39] Etchepare filed its complaint on March 26, 2021. The same day, without seeking
any summons, it filed its Affidavit for Service by Publication. The affidavit stated in full:
1. I am an attorney at law with an office in Cheyenne,
Wyoming, am an adult, and have personal knowledge of all
matters stated herein.
2. Service of a Summons on each of the Defendants identified
herein cannot be made.
3. Holmes Jones Petroleum is a purported Pennsylvania entity
whose physical address and/or successor-in-interest address
cannot be ascertained.
4. A reasonable diligent search for the address of Holmes
Jones Petroleum was conducted in the entity and business
records on file with the Wyoming Secretary of State and the
Pennsylvania Secretary of State and in addition to a search of
the Grantor/Grantee index in the Clerk’s Office of Laramie
6
We address only the claims filed by the Hopeful entities, although we note there were numerous
defendants served by publication who did not appear before the district court and were defaulted for failing
to answer Etchepare’s complaint. See infra ¶ 57.
13
County, Wyoming. A general search online also found no
results.
5. The other putative claimants against the identified lands, all
situate in Laramie County, Wyoming, are unknown.
6. This is a proper case for Service by Publication under
W.R.C.P. 4(k)(1)(A), (k)(3)(A)-(C), (k)(4)(A) and (E), and (o)
of the Wyoming Rules of Civil Procedure.
7. All other defendants have addresses which are known
or through reasonable diligence were ascertained.
8. Pursuant to W.R.C.P. 4(l)(2)(B) and after the first
publication, I will deliver to the district court clerk a copy of
the notice of publication, which will be mailed to each
defendant whose address is known by certified mail with return
receipt requested directed to the respective defendant’s
address.
9. Answers from all defendants shall be due within 30 days
after the date of last publication pursuant to W.R.C.P.
12(a)(1)(A)(iii).
(Emphasis added.)
[¶40] Etchepare argues its affidavit and all other procedures strictly complied with the
rules for service by publication. It maintains that “Because there were unknown claimants
and a defendant with an unknown address, this matter was a case ripe for service by
publication.” It cites no case law for the proposition that because one defendant meets the
criteria for service publication, all defendants including those located in the county with a
known address may be served by publication, so we must assume Etchepare’s argument
rests on the plain language of the rule itself. “We interpret rules in the same manner as
statutes, looking first to the plain language.” RME Petroleum Co. v. Wyo. Dep’t of
Revenue, 2007 WY 16, ¶ 43, 150 P.3d 673, 688 (Wyo. 2007).
[¶41] Under the plain language of Rule 4(l)(1)(A) and (B), an affidavit must establish that
“service of a summons cannot be made within this state, on the defendant to be served by
publication” and must “stat[e] the defendant’s address, if known.” (Emphasis added.)
This language unambiguously refers to each defendant to be served by publication. The
affidavit does not list the address of each defendant, nor does it state that service of
summons cannot be made on the defendants to be served by publication. Rather, it
identifies only one out-of-state defendant that could not be served by summons and it cites
14
unknown “putative” defendants. Etchepare’s proof of service by certified mail lists at least
ten of the defendants with known addresses in Cheyenne, Wyoming. Each could have been
personally served with a proper summons. 7
[¶42] In Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed.
865 (1950), and Walker v. City of Hutchinson, Kan., 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d
178 (1956), the United States Supreme Court determined that due process requires notice
and opportunity for hearing appropriate to the nature of the case and that process which is
a mere gesture does not satisfy the requirements of due process. Although Mullane
approved publication notice to those whose addresses were unknown, the Court stated that
where an address is “at hand, the reasons disappear for resort to means less likely than the
mails to apprise them of its pendency.” Mullane, 399 U.S. at 318, 70 S.Ct. at 659. See
also Indian Hills Holdings, LLC v. Frye, 337 F.R.D. 293, 299 (S.D. Cal. 2020) (“Under
California law, ‘[c]onsistent with the notions of fair play and due process, substituted
service by publication is “a last resort” when “reasonable diligence to locate a person in
order to give him notice before resorting to the fictional notice afforded by publication”
has been exercised.’” “Personal service remains the method of choice under the statutes
and the constitution . . . .” (citations omitted)); O’Donnell v. Kaye, 2015 WI App 7, ¶ 11,
859 N.W.2d 441, 445 (“[E]very measure which the legislature has adopted for the purpose
of securing . . . that the [defendant] may receive actual notice, should be particularly carried
into effect.” (citation omitted)); Johnson v. Cintas Corp. No. 2, 2012 WI 31, ¶ 43, 811
N.W.2d 756, 768 (“[A]ctual notice alone is not enough to confer jurisdiction upon the
court. Service must be made in accordance with the manner prescribed by statute.”
(citations omitted)); 2A Stephen A. Hess, Colo. Prac., Methods Of Practice § 75:11 n.2
(7th ed. 2022 update) (“In cases affecting specific property or status or in other proceedings
in rem, C.R.C.P. 4(g) specifically authorizes service by publication only upon those
defendants who cannot be served personally.”). 8
[¶43] Etchepare’s interpretation of Rule 4 would allow service by publication on all
defendants in every case where a plaintiff cannot find one of any number of defendants or
7
“Prejudice [to the plaintiff] does not factor into our analysis because we have long required strict
compliance with rules governing service by publication.” Tarter v. Tarter, 2020 WY 80, ¶ 13, 466 P.3d
829, 832 (Wyo. 2020) (citing Goss, 780 P.2d at 312 (The requirements of W.R.C.P. 4 concerning service
by publication “are minimal and demand strict compliance.”)).
8
Personal service, where possible, should be employed. It is
considered a more desirable method of giving notice than is any form of
substituted or constructive service, and it is required that an affidavit be
filed if other than personal service is desired setting forth the reasons why
personal service cannot be obtained. If such an affidavit is filed as to a
person who is present in the jurisdiction, and could be personally served
without difficulty, then there is a possibility of subsequent attack on any
judgment rendered on grounds of extrinsic fraud.
1 Marlin M Volz, Jr., Ia. Prac., Methods of Practice § 3:5 (1917) (citing Main v. Kick, 180 Iowa 50, 161
N.W. 711 (1917)).
15
avers there may be unknown claimants. Such an interpretation would eviscerate the due
process protections contained with Rule 4. “[W]e will not interpret a statute in a way that
renders any portion meaningless or in a manner producing absurd results.” Solvay
Chemicals, Inc. v. Wyo. Dep’t of Revenue, 2022 WY 124, ¶ 17, 517 P.3d 1146, 1152 (Wyo.
2022) (quoting Delcon Partners LLC v. Wyo. Dep’t of Revenue, 2019 WY 106, ¶ 11, 450
P.3d 682, 686 (Wyo. 2019)); see also Adekale v. State, 2015 WY 30, ¶ 13, 344 P.3d 761,
765–66 (Wyo. 2015) (“This Court will not interpret a statute in . . . a manner producing
absurd results.” (citing Stutzman v. Off. of Wyo. State Eng’r, 2006 WY 30, ¶ 16, 130 P.3d
470, 475 (Wyo. 2006))); State, Dep’t of Corr. v. Watts, 2008 WY 19, ¶ 23, 177 P.3d 793,
799 (Wyo. 2008) (“We construe a statutory provision to harmonize it with other provisions
relating to the same subject matter.”); Wilson Advisory Comm. v. Bd. of Cnty. Comm’rs,
2012 WY 163, ¶ 31, 292 P.3d 855, 863 (Wyo. 2012).
[¶44] Service by publication is not a shortcut on the way to the courthouse. “The attorney
for a litigant is responsible for strict compliance with the rules and statutes authorizing
substituted service.” Gookin, 826 P.2d at 235 (citing Nat’l Supply Co. v. Chittim, 387 P.2d
1010, 1012 (Wyo. 1964)). “The court’s inquiry must be as to whether the requisites of the
controlling statute have been complied with and such compliance appears on record.” Id.(citing Napoleon B. Broward Drainage Dist. v. Certain Lands Upon Which Taxes Were
Due, 33 So. 2d 716, 718 (Fla. 1948)). Etchepare’s affidavit for service by publication was
deficient on its face. The record indisputably reflects the Hopeful entities’ usual place of
business was Laramie County and that Ted Simola resided in Laramie County with a
known address. The Hopeful entities and Ted Simola were not subject to substitute service.
Personal service with a summons and complaint were necessary to provide the district court
with personal jurisdiction. Unless personal jurisdiction is waived, “[a] judgment entered
without proper service of the summons is void and subject to attack directly or collaterally.”
Hoke, ¶ 7, 131 P.3d at 374.
3. Summons in Service by Publication
[¶45] The Hopeful entities claim that the district court erred when it determined that a
request for a summons is not required when service of process is proper under Rule 4(k)
and (l). In its written order, the district court held the service by publication was properly
effectuated and added, “The Court additionally notes that there is no requirement to request
a summons in order to do service by publication as alleged by Defendants Hopeful
Partnerships.” As we have not previously addressed this issue, we consider the reasoning
of the decisions of other courts which have considered this question.
[¶46] In McCoy v. McCoy, the court reviewed the North Carolina rule regarding service
by publication and its requirement of due diligence. It reasoned:
Adoption of our new Rules of Civil Procedure has made
no change in our practice in this regard. Rule 4(j)(9)c, which
16
sets forth the procedure for service of process by publication,
reads in pertinent part as follows:
c. Service by publication.—A party subject to service of
process under this subsection (9) may be served by
publication whenever the party’s address, whereabouts,
dwelling house or usual place of abode is unknown and
cannot with due diligence be ascertained, Or there has
been a diligent but unsuccessful attempt to serve the
party under either paragraph a or under paragraph b or
under paragraphs a and b of this subsection (9).
This subparagraph appears in Rule 4(j), which deals
with the manner of service of process to exercise personal
jurisdiction. It is noteworthy that every subparagraph of Rule
4(j) speaks of or clearly contemplates “delivering a copy of the
summons and of the complaint,” with the sole exception of
subparagraph c of subsection (9) quoted above. The omission
of any reference to a summons in subparagraph 9(c) is, we
think, significant. Had the Legislature intended to make a
change in our practice so as to require the “useless formality”
of issuance of a summons and return thereon that defendant
was not to be found in the county as a prerequisite to validity
of a service by publication, surely some reference to a
summons would have been made in subparagraph 9(c) as it was
in all other subparagraphs of Rule 4(j). It should also be noted
that subparagraph 9(c) is itself expressed in the disjunctive; it
does not require a showing Both that the whereabouts of the
party to be served cannot with due diligence be ascertained
And that there has been a diligent but unsuccessful attempt to
serve him under one of the preceding subparagraphs of
subsection (9) under which a summons would necessarily have
been issued.
We see no reason why, now more than formerly, due
diligence should require performance of a useless formality.
Nothing in the Rules of Civil Procedure indicates that the
Legislature intended that it should. Logical interpretation of
the language employed suggests strongly to the contrary.
McCoy v. McCoy, 223 S.E.2d 513, 515–16 (N.C. Ct. App. 1976) (emphasis added). This
ruling was recognized in Wayne Cnty. ex rel. Williams v. Whitley, where the court stated:
17
[I]f the circumstances are such to justify service of process by
publication (in other words, even with due diligence the
defendant cannot be personally served) and the plaintiff’s
cause of action has not yet abated, then as this Court indicated
in McCoy, we see no reason to require the “useless formality”
of having an alias or pluries summons issued.
Whitley, 323 S.E.2d at 462 (citing McCoy, 223 S.E.2d at 515).
[¶47] Similarly, in Shaffer v. Shaffer, the court reasoned:
The issuance of the summons is a clerical act and, of
course, takes place before the service of the summons upon the
defendant. It is this act of the Clerk in conjunction with the
filing of the petition which completes the commencement of
the action as ordinarily understood under G.C. § 11279. It has
been stated that, “Where actions are commenced by issuance
of process, an action is commenced as of the time when the
writ or summons is properly issued, with a bona fide intention
that it be served, although service is not actually had.”
(Emphasis ours.) 1 C.J.S. Actions § 129, p. 1397.
It would seem appropriate that the issuance of a
summons should only answer the purposes of the statute, if
done with the intention that it be served. So that, in a situation
such as is found in the instant case, the issuance of a summons
would have been a vain and futile act for the obvious reason
that the plaintiff knew at the time of the filing of her petition
that the defendant could not be served with summons. If the
statute be given literal interpretation, then, notwithstanding the
knowledge of the plaintiff that a summons could not be served,
she would be required to have it issued because the letter of the
statute so required. Having done so, this act, though obviously
not made in good faith, would constitute the commencement
of her action. But the filing of her affidavit for service by
publication in due form, without first the issuance of a
summons would not constitute the commencement of her
action. Such a holding seems contrary to the spirit and
manifest purposes of G.C. § 11279.
Shaffer v. Shaffer, 42 N.E.2d 176, 179 (Ohio Ct. App. 1941); see also Martin v. Pond, 30
F. 15, 18 (C.C.D. Minn. 1887) (“it may be conceded that notice to the defendant is essential
to divest him of his rights and interests. But the publication is the notice,—it is the
18
equivalent to the personal service of a summons; and it is not pretended that there was any
defect in the publication in the case at bar. The defect alleged is in the affidavit for
publication.”).
[¶48] W.R.C.P. 4(m)(4) sets forth the specific information which must be included in the
published notice:
(m) Publication of Notice.
. . .
(4) publication must contain
(A) a summary statement of the object and prayer
of the complaint,
(B) mention the court wherein it is filed,
(C) notify the person or persons to be served when
they are required to answer, and
(D) notify the person or persons to be served that
judgment by default may be rendered against them
if they fail to appear.
W.R.C.P. 4(m)(4). 9 In comparison, a summons under Rule 4(a) requires:
9
The published Notice of Publication of Summons and Notice of Hearing stated:
TO: Each of the Above-Named Defendants and Claimants
You are notified that on March 26, 2021, Plaintiffs Etchepare LLC
(hereinafter referred to as Plaintiff) filed its Petition for Quiet Title and
Declaratory Judgment (hereinafter the Petition) in the District Court of the
First Judicial District, Laramie County, Wyoming, being Civil Action No.
194574. The object and prayer of the Petition in this matter is for the
recovery of interest in, certain real property (mineral interests) situate in
Laramie County, Wyoming, more particularly as either a 3.125% or 12.5%
mineral interest in and under the following described lands [listing legal
descriptions].
You are hereby summoned to serve upon the Plaintiff an Answer to the
Petition within thirty (30) days after the last day of publication of this
notice. Should you fail to file an Answer, the allegations of such Petition
shall be taken as true, and the relief sought, [describing relief sought] will
be granted and judgment entered against you. . . .
A current address for Holmes Jones Petroleum is unknown at this time.
Addresses for [named defendants] are known at this time and Notice will
19
(a) Contents.—A summons must:
(1) name the court and the parties;
(2) be directed to the defendant;
(3) state the name and address of the plaintiff’s attorney
or—if unrepresented—of the plaintiff;
(4) state the time within which the defendant must appear
and defend;
(5) notify the defendant that a failure to appear and defend
may result in a default judgment against the defendant for
the relief demanded in the complaint;
(6) be signed by the clerk; and
(7) bear the court’s seal.
W.R.C.P. 4(a).
[¶49] The information required in a summons is generally the same as that provided in a
notice by publication other than a summons must be signed by the clerk and bear the court’s
seal. There is no mention of a summons in Rule 4(m). Given that a proper defendant for
service by publication could not be personally served a summons, we agree with the
reasoning of the cases cited above. Requiring a summons when service is accomplished
by publication, absent a statute or rule to the contrary, would only demand the exercise of
a futile act. Such acts are generally not required. See Jontra Holdings Pty Ltd v. Gas
Sensing Tech. Corp., 2021 WY 17, ¶ 61, 479 P.3d 1222, 1240 (Wyo. 2021) (“the proponent
is not required to engage in futile acts to procure a witness”); Farmer v. State, 2005 WY
162, ¶ 14, 124 P.3d 699, 705 (Wyo. 2005) (“The prosecution is not required to engage in
futile acts to procure a witness.”); Weston Cnty. Hosp. Joint Powers Bd. v. Westates Constr.
Co., 841 P.2d 841, 849 (Wyo. 1992) (“the law does not require [litigant], or any other
claimant similarly situated, to engage in the futile act of providing further documentation
under such circumstances. A contrary result would indeed elevate form over substance.”).
The district court correctly held that a request for a summons on a defendant who cannot
be found or is not known, under Rule 4(k), is not required by Rule 4(m).
be mailed via certified mail and marked as Restricted Delivery from the
District Court Clerk.
20
[¶50] We now turn to whether, and to what extent, the Hopeful entities waived their
objection to personal jurisdiction.
III. Did Hopeful partnership, Hopeful Ltd., and Ted Simola waive personal service?
A. Waiver
[¶51] Etchepare and Ned Murray Co. maintain that, even if the Hopeful entities were not
properly served, they waived any defect in service when they did not raise a jurisdictional
issue in their Motion to Amend.
[¶52] “[W]here a defendant appears voluntarily, without questioning the court’s personal
jurisdiction, that appearance is the equivalent of proper service of process.” Knight ex rel.
Knight v. Est. of McCoy, 2015 WY 9, ¶ 27, 341 P.3d 412, 419 (Wyo. 2015) (quoting
Operation Save Am. v. City of Jackson, 2012 WY 51, ¶ 54, 275 P.3d 438, 456 (Wyo. 2012)).
An objection to personal jurisdiction must be made at the earliest opportunity, otherwise it
is waived. Operation Save Am., ¶ 54, 275 P.3d at 455–56 (quoting JAG, ¶ 13, 56 P.3d at
1019); see also Walton, ¶ 10, 50 P.3d at 697 (personal jurisdiction deemed waived if not
questioned at the earliest opportunity); Matter of Adoption of MSVW, 965 P.2d 1158, 1162
(Wyo. 1998). “[T]he general rule [is] that it is necessary to question [the] jurisdiction of
the court over the person at the earliest opportunity, failing in which the defense will be
considered waived.” Pease, 522 P.2d at 1002. “When a defendant voluntarily appears
without questioning the court’s personal jurisdiction over him, his appearance is the
equivalent of proper service of process.” MSVW, 965 P.2d at 1162 (citing Pease, 522 P.2d
at 1002).
[¶53] Mr. Simola, although not properly served, filed an answer to the complaint in his
individual capacity on June 14, 2021. The answer did not raise any jurisdictional claims.
Ted Simola waived his personal jurisdictional defenses. 10
[¶54] On the other hand, the Hopeful entities did not file any pleading or motion with the
district court until January 5, 2022, when the Hopeful entities filed their Motion to Amend.
Their motion also failed to raise any jurisdictional defense and affirmatively requested
action by the district court. At that point, the Hopeful entities also waived their personal
jurisdictional defenses; a waiver which cannot be withdrawn. Quenzer v. Quenzer, 653
P.2d 295, 305 (Wyo. 1982) (“By invoking the power of the district court to grant
affirmative relief, the appellant waived his special appearance and made a general
appearance.” Father “cannot withdraw his earlier appearance and escape the jurisdiction
of the court.” (citations omitted)).
10
Ms. Kulas is not a named as an appellant in this appeal. To the extent she will remain an individual party
in this case, she also waived her jurisdictional defense on that date.
21
B. Effect of Waiver
[¶55] Although the Hopeful entities waived their jurisdictional defenses on January 5,
2022, we must determine the scope and effect of that waiver. As discussed above, the law
is clear that personal jurisdiction may be waived. It is equally clear, however, that “for a
court to acquire jurisdiction there must be a proper service of summons or an entry of
appearance, and a judgment rendered without proper service or entry of appearance is a
nullity and void.” Pease, 522 P.2d at 1000 (quoting Lincoln Tavern, Inc. v. Snader, 133
N.E.2d 606, 610 (Ohio 1956)). The question becomes whether the January 2022 waiver
retroactively granted the district court jurisdiction which would validate the district court’s
previous orders and judgments affecting the Hopeful entities. 11
[¶56] In Pease, we held the entry of a default judgment by the district court was void
because it was entered before the court had personal jurisdiction over the defendant. We
said, “Judgments without personal service of process within the state issuing it, or its
equivalent, or upon a service of process in a manner not authorized by law, are void
judgments, and may be so treated in any proceeding, direct or collateral.” Pease, 522 P.2d
at 1000 (citation omitted). “[A] party who submits to the court’s jurisdiction does so only
prospectively and the appearance does not retroactively validate orders entered prior to that
date.” In re Marriage of Verdung, 535 N.E.2d 818, 820 (Ill. 1989) (citations omitted).
“‘[W]here a judgment is void when entered, it remains void,’ despite subsequent
submission by a party to the circuit court’s jurisdiction.” BAC Home Loans Servicing, LP
v. Mitchell, 2014 IL 116311, ¶ 36, 6 N.E.3d 162, 170 (quoting J.C. Penney Co. v. West,
449 N.E.2d 188, 190 (Ill. App. Ct. 1983)). A waiver does not “serve to validate
retroactively the void orders entered prior to defendant’s submission to the court’s
jurisdiction.” BAC Home Loans, ¶ 44, 6 N.E.3d at 171.
[¶57] We recognize the default judgment in this case occurred shortly after the Hopeful
entities filed their motion to amend the answer. We discuss the waiver as applied to the
default judgment below. However, to highlight the scope of the problems created by the
insufficient service of process in this case, we note the district court had entered, among
other orders, an Order to Bifurcate the proceedings, setting aside the Hopeful entities
internal disagreements about the distribution of the Hopeful entities’ mineral interests.
Later, it issued a Partial Decree for Quiet Title and Declaratory Judgment determining the
Hopeful entities’ mineral interest in total (subject to the Bifurcation Order) and determining
the mineral and leasehold interests of the other litigants. Because the district court did not
have personal jurisdiction over the Hopeful entities (and possibly others included in these
orders), these orders are void and subject to collateral attack. Given that service by
publication, without summons, was utilized for all the defendants, the entire proceeding is
now at risk.
11
Ms. Kulas and Mr. Simola waived their jurisdictional defense prior to the substantive orders of the district
court.
22
IV. Did the district court err in entering a default judgment and denying the motion
to set aside default?
A. Entry of Default
[¶58] As determined above, the Hopeful entities waived prospective objections to
personal jurisdiction through their Motion to Amend in January 2022. On that date, the
Hopeful entities had submitted to the jurisdiction of the district court. In an oral ruling at
the hearing, the district court held the Hopeful entities’ motion must be denied because
they had not filed an answer to the complaint, and therefore could not amend a nonexistent
answer. Just prior to the March 23, 2022 hearing, Etchepare and Ned Murray Co. filed for
a default under Rule 55(b). The entry of default judgment was entered the same day. It
stated:
[The Hopeful entities] are in default for failure to plead or
otherwise defend as required by law . . . . Said Petition for
Quiet Title and Declaratory Judgment was filed with the First
Judicial District Court of Laramie County on March 26, 2021,
service by publication was completed on April 21, 2021, and
any and all answers were due from Defendants on May 21,
2021.
The problem here, of course, is that the Hopeful entities were not properly served and were
not required to answer on May 21, 2021. Their waiver of personal jurisdiction did not
occur until January 2022.
1. Denial of Motion to Set Aside Default
[¶59] Two days after the court entered the default judgment, the Hopeful entities filed an
objection to the entry of default under Rule 55(c) claiming the service of process by
publication on these defendants was insufficient to confer subject matter or personal
jurisdiction on the district court. As alternative relief, they moved for dismissal of the
action based on lack of jurisdiction. At the hearing on the motion to set aside default, the
district court dismissed the motion because the Hopeful entities had not shown good cause
under Rule 55(c) and had not shown improper service by clear and convincing evidence.
[¶60] The entry of a default judgment is controlled by Rule 55 which states in relevant
part:
(a) Entering a Default.—When a party against whom a
judgment for affirmative relief is sought has failed to plead or
23
otherwise defend, and that failure is shown by affidavit or
otherwise, the clerk must enter the party’s default.
(b) Entering a Default Judgment.—
. . .
(2) By the Court.—In all other cases, the party must apply
to the court for a default judgment. . . . If the party against
whom a default judgment is sought has appeared personally
or by a representative, that party or its representative must
be served with written notice of the application at least 7
days before the hearing.
. . .
(c) Setting Aside a Default or a Default Judgment.—The court
may set aside an entry of default for good cause, and it may set
aside a final default judgment under Rule 60(b).
W.R.C.P. 55(a)–(c) (emphasis added). “[G]ood cause for setting aside an entry of default,
pursuant to [W.R.C.P.] 55(c), is to be found in the justifications for relief from a final
judgment articulated in [W.R.C.P] 60(b).” In re HLL, 2016 WY 43, ¶¶ 27–38, 372 P.3d
185, 191–93 (Wyo. 2016) (quoting Fluor Daniel (NPOSR), Inc. v. Seward, 956 P.2d 1131,
1134 (Wyo. 1998)); see also In re ARW, 2015 WY 25, ¶ 18, 343 P.3d 407, 412 (Wyo.
2015) (“We have previously held that the factors described in Rule 60(b) are relevant to
our determination of whether the defendant has shown ‘good cause.’” (citation omitted)).
[¶61] Rule 60(b) provides:
(b) Grounds for Relief from a Final Judgment, Order, or
Proceeding.—On motion and just terms, the court may relieve
a party or its legal representative from a final judgment, order,
or proceeding for the following reasons:
(1) mistake, inadvertence, surprise, or excusable neglect;
(2) newly discovered evidence that, with reasonable
diligence, could not have been discovered in time to move
for a new trial under Rule 59(b);
(3) fraud (whether previously called intrinsic or extrinsic),
misrepresentation, or misconduct by an opposing party;
24
(4) the judgment is void;
(5) the judgment has been satisfied, released, or discharged;
it is based on an earlier judgment that has been reversed or
vacated; or applying it prospectively is no longer equitable;
or
(6) any other reason that justifies relief.
W.R.C.P. 60(b).
We review the district court’s denial of [a] W.R.C.P. 60(b)
motion for abuse of discretion. An abuse of discretion occurs
where the district court could not reasonably have concluded
as it did. [I]t is the movant’s burden to bring his cause within
the claimed grounds of relief and to substantiate these claims
with adequate proof. An order denying relief will be reversed
only if the trial court was clearly wrong.
Olson v. Schriner, 2020 WY 36, ¶ 15, 459 P.3d 453, 458–59 (Wyo. 2020) (internal citations
and quotation marks omitted) (quoting SWC Prod., Inc. v. Wold Energy Partners, LLC,
2019 WY 95, ¶ 5, 448 P.3d 856, 858 (Wyo. 2019)).
[¶62] “A default judgment is not a trial on the merits.” Loeffel v. Dash, 2020 WY 96,
¶¶ 24–29, 468 P.3d 676, 682–84 (Wyo. 2020); Rosty v. Skaj, 2012 WY 28, ¶ 29, 272 P.3d
947, 957 (Wyo. 2012) (“[T]his court has long recognized that ‘default judgments are not
favored in the law’ and ‘it is preferable that cases be tried on their merits.’” (quoting
Vanasse v. Ramsay, 847 P.2d 993, 997 (Wyo. 1993))). “Default judgments are punitive
sanctions against an unresponsive party that serve as a protection to a diligent party.”
Loeffel, ¶¶ 24–29, 468 P.3d at 682–84 (citing Multiple Resort Ownership Plan, Inc. v.
Design-Build-Manage, Inc., 2002 WY 67, ¶ 22, 45 P.3d 647, 654–55 (Wyo. 2002)).
[¶63] When determining a motion set aside a default judgment, “[t]he court first must
consider whether the filed motion articulates a reason for relief under [W.R.C.P.] 60, and
that is a question of law to be reviewed for correctness.” Multiple Resort Ownership, ¶ 11,
45 P.3d at 651–52 (quoting Fluor Daniel, 956 P.2d at 1134). Here, the district court
concluded that the Hopeful entities had not articulated a reason for relief. As discussed,
the district court erred in concluding the service by publication was effective as to these
defendants.
[¶64] W.R.C.P. 60(b)(6) provides a judgment should be set aside when the defendant
presents “any other reason that justifies relief.” “[T]he express purpose of this rule is to
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provide the courts with the means of relieving a party from the oppression of a final
judgment . . . on a proper showing where such judgments are unfairly or mistakenly
entered.” MSC v. MCG, 2019 WY 59, ¶ 9, 442 P.3d 662, 665 (Wyo. 2019) (quoting
Kennedy v. Kennedy, 483 P.2d 516, 518 (Wyo. 1971)). Here, the Hopeful entities correctly
argued that the service by publication did not achieve personal jurisdiction over them.
[¶65] At the time the default judgment was entered, the Hopeful entities had voluntarily
submitted themselves to the jurisdiction of the district court and had not raised the
jurisdictional defense. The jurisdictional argument was first made in their motion to set
aside the default judgment. “When an appropriate reason is set forth, the exercise of
discretion in granting or denying relief depends upon the facts of the case.” Multiple Resort
Ownership, ¶¶ 10–11, 45 P.3d at 651–52 (quoting Fluor Daniel, 956 P.2d at 1134).
[¶66] Here, in their first appearance—their motion to amend the answer—the Hopeful
entities attempted to answer or otherwise defend the case. There was no basis for a finding
that they had not diligently attempted to do so once personal jurisdiction was established.
We conclude the district court erroneously found that the Hopeful entities answer was due
on May 21, 2021, and it abused its discretion in failing to grant the Hopeful entities request
to set aside the default judgment. There was no reason for these defendants to be subject
to “punitive sanctions against an unresponsive party” or that default judgment would “serve
as a protection to a diligent party.” The plaintiffs chose an inappropriate and invalid
shortcut to initiate service on all the defendants and should not be rewarded for those
efforts. We find the district court abused its discretion and reverse the district court’s denial
of the motion to set aside the default judgment.
CONCLUSION
[¶67] The district court’s subject matter jurisdiction was established when Etchepare filed
its quiet title and declaratory judgment action. However, service by publication on all
defendants did not establish personal jurisdiction over the Hopeful entities. The district
court erred in entering a default judgment against these defendants and abused its discretion
when it failed to set aside that judgment. We affirm the district court’s determination that
a summons is not required as to those defendants who are properly subject to service by
publication. We reverse on the ability to serve defendants with known addresses by
publication, and the district court’s denial of the motion to set aside the default judgment.
This case is remanded for further proceedings in accordance with this opinion.
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