Find Legal Information

DAVID VEILE V. MICHAEL BRYANT, and BRYANT FUNERAL HOME, INC.
2005 WY 150
123 P.3d 562
Case Number: 05-48
Decided: 11/28/2005

OCTOBER TERM, A.D. 2005

DAVID VEILE,

Appellant

(Petitioner),

v.

MICHAEL BRYANT, and

BRYANT FUNERAL HOME, INC.

Appellees

(Respondents).

Appeal from the District Court of Washakie County

Representing Appellant:

David Veile, Pro Se

Representing Appellee:

Michael Bryant, Pro Se, and Francisco L. Romero, Ft. Collins, Colorado

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

GOLDEN, Justice.

[1]      David Veile appeals from a district court order denying his motion for payment of costs for his appeal in Veile v. Bryant, 2004 WY 107, 97 P.3d 787 (Wyo. 2004).  Finding Veiles argument on appeal to be without merit, we affirm the order of the district court and, finding no reasonable cause for this appeal, award sanctions against Veile.

ISSUE

[2]      Veile presents this statement of the issue:

Should the district courts order denying payment of costs to Appellant Veile be reversed because it violates:

A)                the Wyoming Supreme Courts Mandate Reversing Judgment?; and/or

B)        Rule 10.04, Wyoming Rules of Appellate   Procedure?

Appellee Michael Bryant rephrases the issue as follows:

Is Veile entitled to costs on appeal when he is not the prevailing party and did not move for costs in this Court?

FACTS

[3]      Veile and Bryant operate competing funeral homes in Worland, Wyoming.  In 1996, Veile filed a complaint with the Wyoming State Board of Embalming (Board) against Bryant and Bryant Funeral Home alleging numerous violations of Wyo. Stat. Ann. 33-16-310 (LexisNexis 2005).  After investigation by the Boards investigative committee, the Board closed the case for lack of evidence of any violation by Bryant.  In 1998, Veile filed a petition with the Board alleging Bryant had capped, steered and/or solicited funeral business in violation of 33-16-310, requesting revocation or suspension of Bryants license, and requesting reimbursement of Veile for the costs incurred in filing the petition.  Veile filed the petition pursuant to Wyo. Stat. Ann. 33-16-311 (LexisNexis 2005), which allows such a petition to be filed by the Attorney General, the county attorney of the county in which the licensee resides, or by any citizen residing in this state.

[4]      After protracted legal maneuvering, a hearing on Veiles petition was held before the Board in 2002.  At the close of Veiles evidence, the Board granted Bryants motion for a directed verdict finding Veile failed to present sufficient evidence to support his allegations.  Veile filed a petition for review with the district court.  The district court dismissed the petition for review holding that the hearing before the Board was not a contested case hearing under the Wyoming Administrative Procedure Act.  The district court characterized the hearing as an investigation after which the Board found no basis to prosecute Veiles claims.  The district court reasoned that because the hearing was not a contested case hearing under the Wyoming Administrative Procedure Act, the court did not have jurisdiction to consider Veiles petition for judicial review.

[5]      Veile appealed the district courts decision to this Court.  We reversed the district courts ruling that the hearing before the Board was not a contested case hearing and held that the Court did have jurisdiction to hear Veiles appeal.  Veile, 14, 97 P.3d at 793.  In this Courts ruling on the merits of Veiles appeal, though, we upheld in all respects the Boards finding that Veile had presented insufficient evidence to prove his case against Bryant, and we affirmed the Boards decision denying all relief requested by Veile.  Id., 16, 26, 97 P.3d at 796, 799.

[6]      On September 30, 2004, this Court issued its Mandate Reversing Judgment, which provided that [c]osts are awarded to the prevailing party.  On November 3, 2004, Veile filed in district court a Motion for Order of Payment of Costs Pursuant to Wyoming Supreme Courts Mandate Reversing Judgment, seeking to recover $1,698.80 in costs.  On January 3, 2005, the district court issued an order denying Veiles motion for payment of costs.  In so ordering, the district court ruled that Mr. Veile is not the prevailing party in the Supreme Court matter and because of the uniqueness of the Supreme Courts opinion in the matter, Rule 10.04, W.R.A.P., is not applicable . . . .  This appeal followed.

STANDARD OF REVIEW

[7]      This Court ordered in its mandate that costs were awarded to the prevailing party.  The determination of which party is the prevailing party is a question of law, and our standard of review for questions of law is de novo.  See Gray v. Stratton Real Estate, 2001 WY 125, 5, 36 P.3d 1127, 1128 (Wyo. 2001). 

DISCUSSION

[8]      Veile contends the district court erred in finding that he was not the prevailing party in Veile, 2004 WY 107, 97 P.3d 787.  In support of this contention, Veile argues that he clearly improved his position by appealing the District Courts Dismissal to this Court.  We disagree.

[9]      In considering whether a party should be awarded costs as a prevailing party in litigation, we have defined prevailing party according to the following:

A party should not be deemed the prevailing party for purposes of taxing costs unless the party improves his or her position by the litigation. * * *  To hold otherwise would encourage unnecessary litigation.

Schaub v. Wilson, 969 P.2d 552, 561 (Wyo. 1998).  Our decision in Veile cannot reasonably be read to have improved Veiles position in any way in his petition against Bryant.

[10]   Veiles position in his litigation against Bryant was that which he presented to the Board: that Bryant had engaged in unlawful funeral practices; that Bryants license should be revoked or suspended; and that the Board should reimburse Veile for expenses he incurred in pursuing his action before the Board.  The Board found against Veile on all of his claims.  The district court, on the other hand, took no position on the merits of Veiles claims and instead dismissed Veiles petition for review after finding it did not have jurisdiction to consider the petition.  We disagreed with the district court and took jurisdiction of Veiles appeal.  We then, however, ruled against Veile on all of his claims and upheld the Boards decision in its entirety.  The effect of the district courts decision, had it stood, would have been to leave in place the Boards decision denying Veile all relief he requested.  Although we disagreed with the district courts reasoning, the effect of our decision on Veile was the same.  We affirmed the Boards finding that Veile had not proven his case against Bryant, and we upheld the Boards decision denying Veile all requested relief.  Veile clearly did not improve his position in his litigation against Bryant through his appeal to this Court.

[11]   As a final issue, Bryant claims that there is no reasonable cause for this appeal and this Court should award sanctions pursuant to W.R.A.P. 10.05.  Generally, this Court is reluctant to impose sanctions, but we will make such an award in those rare circumstances where an appellate brief lacks cogent argument, is devoid of pertinent authority to support the claims of error, and/or fails to make adequate references to the record.  Gray, 11, 36 P.3d at 1129-30.  In this case the lack of any cogent argument to support the appeal provides the circumstance making sanctions appropriate.

[12]   As explained above, this Court in its Veile decision ruled against Veile on all of his claims of Board error.  Veiles interests in his litigation against Bryant were in no way vindicated through his appeal to this Court, and no reasonable argument could be proffered to support his request for payment of costs.  We can discern no good faith legal basis for this action, and we do not excuse pro se litigants from the requirement that an appeal be supported by cogent argument.  See Welch v. Welch, 2003 WY 168, 13, 81 P.3d 937, 940 (Wyo. 2003).  We therefore certify that there is no reasonable basis for this appeal and that sanctions are appropriate.

CONCLUSION

[13]   We agree with the district court that Veile was not a prevailing party entitled to an award of costs following our decision in Veile.  We therefore affirm the district courts order denying Veiles motion for payment of costs.  Bryant shall submit a statement of costs and attorneys fees associated with responding to this appeal.  Upon review, we will award an appropriate amount in the form of sanctions.

Citationizer Summary of Documents Citing This Document