Jeremy J. Hugus v. Brandon C. Reeder , 2022 WY 13 ( 2022 )

IN THE SUPREME COURT, STATE OF WYOMING
2022 WY 13OCTOBER TERM, A.D. 2021
January 27, 2022
JEREMY J. HUGUS,
Appellant
(Plaintiff),
v. S-21-0153
BRANDON C. REEDER,
Appellee
(Defendant).
Appeal from the District Court of Natrona County
The Honorable William J. Edelman, Judge
Representing Appellant:
Jeremy J. Hugus, pro se. Argument by Mr. Hugus.
Representing Appellee:
James C. Worthen and Whitney D. Boyd, Hall & Evans, LLC, Casper, Wyoming.
Argument by Mr. Worthen.
Before FOX, C.J., and DAVIS*, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
*Justice Davis retired from judicial office effective January 16, 2022, and, pursuant to Article 5, § 5 of the
Wyoming Constitution and Wyo. Stat. Ann. § 5-1-106(f) (LexisNexis 2021), he was reassigned to act on
this matter on January 18, 2022.
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] Jeremy Hugus filed suit against Brandon Reeder on the last day of the applicable
statute of limitations seeking damages for injuries incurred in a traffic accident. Mr. Hugus
later moved to dismiss the action without prejudice. The circuit court granted the motion
on November 4, 2019. On July 22, 2020, Mr. Hugus filed another complaint against Mr.
Reeder. The district court dismissed this suit as untimely holding that Wyoming’s saving
statute, Wyo. Stat. Ann. § 1-3-118, 1 did not apply to a plaintiff’s voluntary dismissal of the
first action. We reverse.
ISSUE
[¶2] Mr. Hugus presents one issue:
Did the district court err in holding that Wyo. Stat. Ann. § 1-3-
118 does not apply to a plaintiff’s voluntary dismissals?
FACTS
[¶3] On October 20, 2013, Mr. Hugus was a passenger in a vehicle that was “T-boned”
by a vehicle driven by Mr. Reeder. On October 20, 2017, Mr. Hugus, a Wyoming attorney,
filed a pro se negligence complaint claiming he sustained injuries to his upper back,
shoulders, and spine. He requested damages including economic damages for bodily
injuries and non-economic damages for “loss of enjoyment and quality of life, emotional
trauma, mental anguish and distress.” Mr. Hugus failed to comply with the circuit court’s
case management order and failed to produce materials in response to discovery requests.
On April 10, 2018, Mr. Reeder filed a motion to compel discovery and a request for
sanctions. After a hearing, the circuit court vacated the trial date and ruled it would not
reschedule trial until Mr. Hugus complied with discovery. On August 9, 2019, Mr. Reeder
filed a motion to dismiss for lack of prosecution based on Mr. Hugus’ failure to take any
action on the case since early 2018. On October 11, 2019, the circuit court set a trial date
for February 13, 2020. On November 1, 2019, Mr. Hugus filed a motion to dismiss the
case without prejudice. This motion was granted on November 4, 2019.
[¶4] On July 22, 2020, Mr. Hugus filed a new complaint. In it he reasserted his original
negligence claim and added a new claim for reckless driving. He, for the first time, sought
1
In many jurisdictions statutes have been enacted which, in varying terms,
provide that where an action, timely begun, fails in some manner described
in the statute, other than on the merits, another action may be brought
within a stated period from the failure of the former action. These statutes
are variously designated . . . by such shorthand expressions as “renewal,”
“extension,” or “saving” statutes.
79 A.L.R.2d 1270 (1961).
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punitive damages as well as pre-judgment and post-judgment interest. Mr. Reeder filed a
motion to dismiss the new complaint. Both parties argued the application of Wyo. Stat.
Ann. § 1-3-118, the saving statute, which provides:
Right to commence new action.
If in an action commenced in due time a judgment for
the plaintiff is reversed, or if the plaintiff fails otherwise than
upon the merits and the time limited for the commencement of
the action has expired at the date of the reversal or failure, the
plaintiff, or his representatives if he dies and if the cause of
action survives, may commence a new action within one (1)
year after the date of the failure or reversal. This provision also
applies to any claim asserted in any pleading by a defendant.
Wyo. Stat. Ann. § 1-3-118 (LexisNexis 2021). Mr. Reeder claimed the new action was
outside the four-year statute of limitations pursuant to Wyo. Stat. Ann. § 1-3-105(a)(iv)(C),
and the claims were not timely under Wyo. Stat. Ann. § 1-3-118. In the alternative, Mr.
Reeder argued that, even if the refiled negligence claim was timely under Wyo. Stat. Ann.
§ 1-3-118, the new liability and damage claims were not. Mr. Hugus responded that Wyo.
Stat. Ann. § 1-3-118 applied making his action timely, and the statute’s plain language
permitted consideration of all his claims.
[¶5] After hearing the parties’ arguments, the district court granted Mr. Reeder’s motion
to dismiss the case, holding that “Wyoming’s saving statute was intended to apply only to
dismissals initiated by an opposing party or sua sponte dismissals; it does not apply to
voluntary dismissals. Accordingly, Plaintiff’s previous action . . . did not fail otherwise
than upon the merits[.]” Mr. Hugus timely appealed.
DISCUSSION
[¶6] Mr. Hugus argues the district court erred in dismissing his case because the
unambiguous language of Wyo. Stat. Ann. § 1-3-118 does not limit its application to
dismissals initiated by an opposing party or sua sponte dismissals. This is a question of
first impression as we have not previously determined whether Wyo. Stat. Ann. § 1-3-118applies to a voluntary dismissal.
A. Standard of Review
[¶7] “Our review of a motion to dismiss, whether under W.R.C.P. 12(b)(6) or 12(b)(1),
is de novo.” Allred v. Bebout, 2018 WY 8, ¶ 29, 409 P.3d 260, 268 (Wyo. 2018). “[W]e
employ the same standards and examine the same materials as the district court: we accept
the facts alleged in the complaint or petition as true and view them in the light most
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favorable to the non-moving party.” Moose Hollow Holdings, LLC v. Teton Cnty. Bd. of
Cnty. Comm’rs, 2017 WY 74, ¶ 20, 396 P.3d 1027, 1033 (Wyo. 2017) (quoting Guy v.
Lampert, 2015 WY 148, ¶ 12, 362 P.3d 331, 335 (Wyo. 2015)). Dismissal is appropriate
only if it is certain on the face of the complaint that the plaintiff cannot assert any facts that
create entitlement to relief. Dowlin v. Dowlin, 2007 WY 114, ¶ 6, 162 P.3d 1202, 1204
(Wyo. 2007); Ecosystem Res., L.C. v. Broadbent Land & Res., L.L.C., 2007 WY 87, ¶ 8,
158 P.3d 685, 687 (Wyo. 2007); W.R.C.P. 12(b)(6).
B. Construction of Wyo. Stat. Ann. § 1-3-118[¶8] The applicable rules of statutory construction are:
[F]irst, statutory construction is a matter of law; second, we are
seeking legislative intent; third, we construe a statute only if it
is ambiguous, with the question of ambiguity being a question
of law; and fourth, a “statute is unambiguous if its wording is
such that reasonable persons are able to agree as to its meaning
with consistency and predictability.” Taylor v. State ex rel.
Wyo. Workers’ Safety & Comp. Div., 2003 WY 83, ¶ 10, 72
P.3d 799, 802 (Wyo. 2003) (quoting Allied-Signal, Inc. v. Wyo.
State Bd. of Equalization, 813 P.2d 214, 220 (Wyo. 1991)); see
also In re Interest of MN, 2007 WY 189, ¶ 4, 171 P.3d 1077,
1080 (Wyo. 2007). In addition, “[a] basic tenet of statutory
construction is that omission of words from a statute is
considered to be an intentional act by the legislature, and this
court will not read words into a statute when the legislature has
chosen not to include them.” Merrill v. Jansma, 2004 WY 26,
¶ 29, 86 P.3d 270, 285 (Wyo. 2004); see also Kennedy Oil v.
Dep’t of Revenue, 2008 WY 154, ¶ 14, 205 P.3d 999, 1004
(Wyo. 2008); and Mathewson v. City of Cheyenne, 2003 WY
10, ¶ 9, 61 P.3d 1229, 1232–33 (Wyo. 2003). . . .
Adelizzi v. Stratton, 2010 WY 148, ¶ 11, 243 P.3d 563, 566 (Wyo. 2010).
[¶9] We first must determine whether Wyo. Stat. Ann. § 1-3-118 is clear or ambiguous.
Wyodak Res. Dev. Corp. v. Wyoming Dep’t of Revenue, 2017 WY 6, ¶ 25, 387 P.3d 725,
732 (Wyo. 2017) (citing Lance Oil & Gas Co. v. Wyoming Dep’t of Revenue, 2004 WY
156, ¶ 4, 101 P.3d 899, 901 (Wyo. 2004)). “A ‘statute is unambiguous if its wording is
such that reasonable persons are able to agree as to its meaning with consistence and
predictability.’” Parker Land & Cattle Co. v. Wyoming Game & Fish Comm’n, 845 P.2d
1040, 1043 (Wyo. 1993) (quoting Allied-Signal, Inc. v. Wyoming State Bd. of Equalization,
813 P.2d 214, 220 (Wyo. 1991)). However, “[a] statute is ambiguous if it is vague or
uncertain and susceptible to more than one reasonable interpretation.” Wyodak, ¶ 27, 387
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P.3d at 732 (citing RME Petroleum Co. v. Wyoming Dep’t of Revenue, 2007 WY 16, ¶ 25,
150 P.3d 673, 683 (Wyo. 2007)). To discern whether a statute is clear or ambiguous, we
examine “the plain and ordinary meaning of the words.” Id. ¶ 25, 387 P.3d at 732 (quoting
RME, ¶ 25, 150 P.3d at 683). “If the statutory language is sufficiently clear and
unambiguous, the Court simply applies the words according to their ordinary and obvious
meaning.” Id. ¶ 26, 387 P.3d at 732 (quoting In re CRA, 2016 WY 24, ¶ 16, 368 P.3d 294,
298 (Wyo. 2016)). Once a statute is determined to be clear and unambiguous, “there is no
room for construction, and a court may not look for and impose another meaning.” Adekale
v. State, 2015 WY 30, ¶ 12, 344 P.3d 761, 765 (Wyo. 2015) (citing Crain v. State, 2009
WY 128, ¶ 8, 218 P.3d 934, 938 (Wyo. 2009)).
[¶10] As stated above, Wyo. Stat. Ann. § 1-3-118 provides:
Right to commence new action.
If in an action commenced in due time a judgment for
the plaintiff is reversed, or if the plaintiff fails otherwise than
upon the merits and the time limited for the commencement
of the action has expired at the date of the reversal or failure,
the plaintiff, or his representatives if he dies and if the cause of
action survives, may commence a new action within one (1)
year after the date of the failure or reversal. This provision also
applies to any claim asserted in any pleading by a defendant.
Wyo. Stat. Ann. § 1-3-118 (emphasis added).
[¶11] Mr. Hugus filed his initial lawsuit on the last day of the applicable statute of
limitations. By the time his motion for a voluntary dismissal was granted, the statute of
limitations had run. He filed this action on July 22, 2020, well outside the statute of
limitations but within one year of the November 4, 2019 dismissal of his original action.
[¶12] Mr. Reeder argues a voluntary dismissal, especially in cases where the party who
seeks the dismissal after being sanctioned for numerous discovery violations, is not a
situation where “the plaintiff fails otherwise than upon the merits.” He contends “the
Wyoming saving statutes should not be construed as a ‘do-over’ mechanism which affords
lawyers a second chance at litigating a case after repeat[edly] ignoring discovery
obligations and court deadlines.”
[¶13] We appreciate Mr. Reeder’s concerns, but they do not change the language of the
statute. As Mr. Reeder notes, some states’ saving statutes carve out negligent prosecution
of a claim or voluntary dismissal, and in those states the statute does not “save” such
actions. See Ind. Code Ann. § 34-11-8-1 (negligent prosecution); Iowa Code Ann. § 614.10(negligent prosecution); N.M. Stat. Ann. § 37-1-14 (negligent prosecution); Mont. Code
4
Ann. § 27-2-407 (saving statute does not apply to a voluntary dismissal); N.Y. C.P.L.R.
§ 205(a) (same); Or. Rev. Stat. Ann. § 12.220(1) (same); 42 Pa. Stat. and Cons. Stat. Ann.
§ 5535(a)(2)(ii) (same); 9 R.I. Gen. Laws Ann. § 9-1-22 (same); W. Va. Code Ann. § 55-
2-18 (same).
[¶14] As Mr. Hugus points out, other states—such as Ohio, Kansas, Utah, and
Oklahoma—employ language similar to or the same as that used in the Wyoming statute—
“if the plaintiff fails otherwise than upon the merits.” Each of these jurisdictions have held
the saving statute will be triggered where failure is based on voluntary dismissal. Frysinger
v. Leech, 512 N.E.2d 337, 342 (Ohio 1987) (“a voluntary dismissal pursuant to Civ.R.
41(A)(1) constitutes failure ‘otherwise than upon the merits’ within the meaning of the
savings statute”); Taylor v. Int’l Union of Elec., Elec., Salaried, Mach. & Furniture
Workers, 968 P.2d 685, 689 (Kan. Ct. App. 1998) (holding that plaintiff’s voluntary
dismissal of lawsuit did not constitute failure “upon the merits,” meaning that plaintiff
could refile lawsuit under K.S.A. 60-518’s saving statute); Luke v. Bennion, 106 P. 712,
715 (Utah 1908) (“We are therefore of the opinion that the voluntary dismissal of the action
in the justice court was a failure of the action otherwise than upon the merits, and within
the meaning of section 2893, and that the court erred in holding the action brought in the
district court barred by the statute of limitations.”); Bruner v. Sobel, ¶ 12, 961 P.2d 815,
818 (Okla. 1998) (Suit “was not time-barred because § 100 gave appellant one year from
the first suit’s dismissal without prejudice to file a new action against her.”); see generally
79 A.L.R.2d 1290 (1961).
[¶15] Wyo. Stat. Ann. § 1-3-118 is unambiguous. It contains no “carve outs” or
exceptions for voluntary dismissals. “A basic tenet of statutory construction is that
omission of words from a statute is considered to be an intentional act by the legislature,
and this court will not read words into a statute when the legislature has chosen not to
include them.” Merrill v. Jansma, 2004 WY 26, ¶ 29, 86 P.3d 270, 285 (Wyo. 2004) (citing
Mathewson v. City of Cheyenne, 2003 WY 10, ¶ 9, 61 P.3d 1229, 1233 (Wyo. 2003)). Once
a statute is determined to be clear and unambiguous, “there is no room for construction,
and a court may not look for and impose another meaning.” Adekale, ¶ 12, 344 P.3d at 765
(citing Crain, ¶ 8, 218 P.3d at 938). We reverse the district court’s determination that the
statute does not apply to dismissals without prejudice at the request of the plaintiff and
reinstate Mr. Hugus’ suit.
[¶16] On appeal, Mr. Reeder renews his argument that, even if the saving statute applies,
the new claim for reckless driving and the claims for damages requesting pre- and post-
judgment interest and punitive damages should be dismissed from the case. The district
court did not reach this issue. Generally, “[s]ince a savings statute extends the time to file
because the new action is considered a continuation of the former one, the two actions must
be substantially the same.” 51 Am. Jur. 2d Limitation of Actions § 257 (2021).
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While a plaintiff’s substantial rights or a defendant’s liability
cannot be enlarged in a renewal action, the renewal action need
not be identical to the first one. It has also been said that
although the two complaints need not be identical, the
allegations must arise out of the same transaction or
occurrence, or same operative facts.
Id. (footnotes omitted). “The ‘saving statute’ accords unto a plaintiff who files his second
action within one year of the voluntary non-suit of his first suit the same procedural and
substantive benefits which were available to the plaintiff in the first action.” Energy Sav.
Prod., Inc. v. Carney, 737 S.W.2d 783, 785 (Tenn. Ct. App. 1987). Whether Mr. Hugus’
new action is substantially the same as the former and the measure of appropriate damages,
if any, should he prevail, are questions that must be determined in the district court.
CONCLUSION
[¶17] The dismissal of Mr. Hugus’ complaint is reversed.
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