                IN THE SUPREME COURT, STATE OF WYOMING

                                         2014 WY 42

                                                            OCTOBER TERM, A.D. 2013

                                                                    March 31, 2014

ROBERT C. CARSON,

Appellant
(Petitioner),

v.
                                                     S-13-0144
STATE OF WYOMING, ex rel.,
WYOMING WORKERS’ SAFETY AND
COMPENSATION DIVISION,

Appellee
(Respondent).

                      Appeal from the District Court of Teton County
                         The Honorable Timothy C. Day, Judge

Representing Appellant:
      Katherine L. Mead of Mead & Mead, Jackson, WY

Representing Appellee:
      Peter K. Michael, Wyoming Attorney General; John D. Rossetti, Deputy Attorney
      General; Michael J. Finn; Senior Assistant Attorney General; and John A. Brodie,
      Assistant Attorney General

Before KITE, C.J., and HILL, VOIGT*, BURKE, and DAVIS, JJ.

*Justice Voigt retired effective January 3, 2014.



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.
HILL, Justice.

[¶1] On January 19, 2006, Robert Carson and his passenger Hugh Sharp were involved
in a serious car accident in Snake River Canyon. Carson sustained multiple injuries,
including a severe head injury, and Sharp was killed in the accident. In 2007 the
Wyoming Workers’ Safety and Compensation Division (Division) denied Carson’s
claims for worker’s compensation benefits because he failed to show that the injuries he
sustained in the automobile accident arose out of and in the course of his employment
with Metrocities Mortgage, LLC (Metrocities). After a contested case hearing, the
Division’s denial of benefits was upheld. Carson did not appeal this determination.

[¶2] Eight months after the Office of Administrative Hearings (OAH) denied Carson’s
claim for worker’s compensation benefits, a jury sitting in a federal district court case
brought by Hugh Sharp’s widow against Carson for wrongful death found that Carson
was acting within the course and scope of his employment at the time of the accident.
After the federal district court jury verdict, Carson sought to reopen this case contending
there was newly discovered evidence to support that he was acting within the course of
his employment at the time of the accident. After rulings by the district court and this
Court, the OAH eventually affirmed its earlier decision from 2008 that Carson was not
acting within the course of his employment. We will affirm.

                                         ISSUE

[¶3]   Carson presents one issue for our review:

             As a matter of law, did the OAH commit error when it failed
             to apply collateral estoppel to the issue of whether Robert
             Carson was in the course and scope of employment at the time
             of his injury?

                                         FACTS

[¶4] On January 19, 2006, Robert Carson and his passenger Hugh Sharp were involved
in a serious car accident in Snake River Canyon. Carson sustained multiple injuries
including a severe head injury and was in a coma for one month. Sharp was killed in the
accident.

[¶5] Originally this matter began as a worker’s compensation claim filed on behalf of
Robert Carson by his wife, Rachel Carson. Rachel filed a claim in which the theory was
that the car accident occurred while he was in the course of his employment with
Metrocities. The claim elaborated that Robert was traveling from his home in Alpine to
Jackson to discuss a mortgage with Shane Gunderson and Trish Reynolds. The Division



                                             1
issued a final determination denying benefits. 1 A contested case hearing was held on
June 28, 2007, after which the OAH found that claimant had not met his burden to prove
he was acting within the course of his employment at the time of the accident. No appeal
was taken from this decision.

[¶6] In the meantime, Sharp’s widow filed a wrongful death action in federal district
court against Carson and Metrocities. After a trial, a federal jury found that at the time of
the accident Carson was acting within the course and scope of his employment with
Metrocities and thus a judgment was entered against Metrocities under the theory of
respondeat superior and in favor of Sharp’s widow.

[¶7] On the basis of the federal judgment, in September of 2008 Carson submitted a
Motion to Reopen Claim to the OAH. Carson based his motion on W.R.C.P. 60(b) and
contended that there was newly discovered evidence that he was indeed acting within the
course of his employment at the time of the accident. Carson specifically relied upon
federal court testimony from Trish Reynolds who testified that she was scheduled to meet
Carson in Jackson on the day of the accident. Without a hearing the OAH denied
Carson’s motion on October 29, 2008.

[¶8] Carson appealed to the district court. There, the court granted Carson’s motion to
supplement the record with (1) deposition testimony from Trish Reynolds; (2) federal
trial testimony from two Metrocities employees; and (3) an agreement between
Metrocities and Salt River Financial (which also employed Carson). The court also
reversed the OAH’s decision denying Carson’s motion and directed the OAH to reopen
Carson’s claim.

[¶9] In response, the Division appealed to this Court. In State ex rel. Wyo. Workers’
Safety & Comp. Div. v. Carson, 2011 WY 61, 252 P.3d 929 (Wyo. 2011) (Carson I), we
concluded that the district court properly granted supplementation of the record but that
the district court erred by ruling on the merits of Carson’s motion to reopen rather than
remanding the case to the OAH for that body to consider the motion in light of the
supplemented record.

[¶10] Based upon this Court’s decision and its remand to the OAH, the parties agreed
that the OAH should decide the matter without further hearing. After due consideration,
the OAH again denied Carson relief and affirmed its original September 27, 2007 order
denying benefits. The OAH wrote:

                         48. A review of the foregoing supplemental materials
                   does not change the decision in this case. Again, even with
                   the supplemental materials, the only offered evidence of a

1
    Initially, Metrocities objected to the Division’s denial, but later it opposed the claim altogether.


                                                         2
             causal connection between Carson’s trip to Jackson on January
             19, 2006, and his employment with Metrocities was the
             testimony of Gunderson and Reynolds that an appointment
             had been arranged in Jackson to discuss a refinance. The other
             suggestion that he may have been distributing or picking up
             marketing materials is simply speculation.

                  49. The testimony of Reynolds and Gunderson is not
             deemed persuasive because,

                    a. their testimony is not consistent. As set forth above
             Gunderson testified that Reynolds was instrumental in setting
             up the meeting. Reynolds states it was all Gunderson’s
             doings.

                    b. their testimony is not supported by any
             documentation. Gunderson and Reynolds’ testimony that they
             had not filled out a loan application was not disputed and
             therefore evidence of the loan application is not expected. The
             evidence does however show that Carson kept his other
             employer, Salt River Financial Inc., well advised of his
             business contacts and did not mention Gunderson or Reynolds.
             Further, to get the figures and rates for their meeting as
             Gunderson referenced in his testimony, some prequalification
             steps such as a good faith estimate should have been
             generated, but there is no record of such.

                    c. the evidence showed that Gunderson and Reynolds
             may have had some bias in favor of or motivation to assist
             Carson given their relationship both business and personal
             with Gerre McClintock [Carson’s father-in-law]. It is also
             noted in the prior Order that McClintock was also found not to
             be credible and indeed had blatantly misrepresented his son in
             law’s continued employment with Salt River[.]

Carson appealed this second OAH decision to the district court, which affirmed the OAH.
The district court rejected Carson’s argument that the federal decision should be given
res judicata or collateral estoppel effect in the administrative proceeding and noted that
Carson failed to “cite any authority that supports a retroactive application of collateral
estoppel or res judicata.” This appeal followed.




                                             3
                              STANDARD OF REVIEW

[¶11] On appeal from a district court’s review of an administrative agency’s decision,
we give no deference to the district court’s decision. We review the case as if it had
come directly to us from the administrative agency. Taylor v. State ex rel. Wyo. Workers’
Safety & Comp. Div., 2010 WY 76, ¶ 12, 233 P.3d 583, 586 (Wyo. 2010); Dale v. S & S
Builders, LLC, 2008 WY 84, ¶ 8, 188 P.3d 554, 557 (Wyo. 2008).

[¶12] Judicial review of an agency’s decision is governed by Wyo. Stat. Ann. § 16-3-
114(c) (LexisNexis 2013):

               (c) To the extent necessary to make a decision and when
             presented, the reviewing court shall decide all relevant
             questions of law, interpret constitutional and statutory
             provisions, and determine the meaning or applicability of the
             terms of an agency action. In making the following
             determinations, the court shall review the whole record or
             those parts of it cited by a party and due account shall be
             taken of the rule of prejudicial error. The reviewing court
             shall:

              (i) Compel agency action          unlawfully   withheld    or
             unreasonably delayed; and

               (ii) Hold unlawful and set aside agency action, findings and
             conclusions found to be:

                   (A) Arbitrary, capricious, an abuse of discretion or
                 otherwise not in accordance with law;

                  (B) Contrary to constitutional right, power, privilege or
                 immunity;

                   (C) In excess of statutory jurisdiction, authority or
                 limitations or lacking statutory right;

                  (D) Without observance of procedure required by law;
                 or

                   (E) Unsupported by substantial evidence in a case
                 reviewed on the record of an agency hearing provided by
                 statute.


                                            4
In accordance with § 16-3-114(c), we review the agency’s findings of fact by applying
the substantial evidence standard. Dale, ¶ 22, 188 P.3d 561. Substantial evidence means
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Bush v. State ex rel. Workers’ Comp. Div., 2005 WY 120, ¶ 5, 120 P.3d
176, 179 (Wyo. 2005) (citations omitted). Findings of fact are supported by substantial
evidence if, from the evidence preserved in the record, we can discern a rational premise
for the findings. Id. We review questions of law de novo. Boe v. State ex rel. Wyo.
Workers’ Safety & Comp. Div., 2009 WY 115, ¶ 7, 216 P.3d 494, 496 (Wyo. 2009).

                                     DISCUSSION

[¶13] In his only issue, Carson argues that the OAH erred when it did not apply collateral
estoppel to the issue of whether or not he was in the course of his employment at the time
of the automobile accident. He claims all four requirements of collateral estoppel have
been met.

[¶14] The Division submits that collateral estoppel is not properly before the Court but
even if the merits are reached on the issue, the original result favors the Division because
two of the four requirements of collateral estoppel are not met. In the alternative, the
Division submits that Carson did not prove that he was acting within the course of his
employment at the time of the accident.

[¶15] The doctrines of collateral estoppel and res judicata do apply in the administrative
context. Slavens v. Board of County Comm’rs, 854 P.2d 683, 685-86 (Wyo. 1993). This
Court has explained that although the doctrines are often used interchangeably, collateral
estoppel is more often appropriately used in an administrative setting.

              In Salt Creek Freightways [v. Wyoming Fair Employment
              Practices Comm’n, 598 P.2d 435, 437 (Wyo. 1979)], we noted
              that although many cases speak of res judicata in the
              administrative context, they actually apply collateral estoppel.
              Salt Creek Freightways, 598 P.2d at 437. Collateral estoppel
              is the appropriate doctrine since collateral estoppel bars
              relitigation of previously litigated issues. Salt Creek
              Freightways, 598 P.2d at 438 (quoting Roush v. Roush, 589
              P.2d 841, 843 (Wyo. 1979) (per curiam)). See also Bresnahan
              v. May Dep’t Stores Co., 726 S.W.2d 327, 329 (Mo. 1987)
              (when a fact is properly determined in one legal proceeding, it
              is given effect in another lawsuit). Res judicata on the other
              hand bars relitigation of previously litigated claims or causes
              of action. Salt Creek Freightways, 598 P.2d at 437. See also
              Batson v. Shiflett, 602 A.2d [1191,] 1201 [(Md. 1992)]


                                             5
             (quoting Parklane Hosiery Co., Inc. v. Shore, 439 U.S. 322, 99
             S.Ct. 645, 58 L.Ed.2d 552 (1979)). Since administrative
             decisions deal primarily with issues rather than causes of
             action or claims, collateral estoppel is the appropriate doctrine.
             Salt Creek Freightways, 598 P.2d at 437.

Slavens, 854 P.2d at 685-86 (emphasis in original). With regard to collateral estoppel, we
consider four factors in determining whether the doctrine applies:

             (1) whether the issue decided in the prior adjudication was
             identical with the issue presented in the present action; (2)
             whether the prior adjudication resulted in a judgment on the
             merits; (3) whether the party against whom collateral estoppel
             is asserted was a party or in privity with a party to the prior
             adjudication; and (4) whether the party against whom
             collateral estoppel is asserted had a full and fair opportunity to
             litigate the issue in the prior proceeding.

Wilkinson v. State ex rel. Wyo. Workers’ Safety & Compensation Div. (In re: Wilkinson),
991 P.2d 1228, 1234 (Wyo. 1999) (emphasis in original) (quoting Slavens, 854 P.2d at
686).

[¶16] At the district court level the court rejected Carson’s argument that collateral
estoppel was relevant at all at that stage of the litigation. It stated:

             Petitioner cites the leading Wyoming cases on the doctrine[s]
             of res judicata and collateral estoppel; however, Petitioner
             fails to cite a single case from any jurisdiction that
             demonstrates either doctrine being applied retroactively.
             Absent any authority to support the retroactive application of
             collateral estoppel or res judicata, the Court cannot support
             Petitioner’s argument. Instead, in this case, the administrative
             agency made a final determination that Petitioner did not
             appeal. It was only after a later determination made in a
             different case (and arguably under a different legal standard)
             was rendered that Petitioner sought to challenge the OAH’s
             decision. In light of Petitioner’s failure to cite any authority
             that supports a retroactive application of collateral estoppel or
             res judicata, Petitioner’s argument that the OAH’s decision
             was not in accordance with law fails.

[¶17] We agree with the district court and the Division that collateral estoppel does not
apply in this case, for several reasons. First, this Court is not comfortable completely


                                             6
distinguishing the differences between tort scope of employment tests and workers’
compensations injury tests for the purposes of collateral estoppel. There is a difference in
the rationale for allowing benefits under the workers’ compensations law and the rationale
for imposing liability on an employer for the negligent acts of his employee under the
principles of vicarious liability. We stated in Mills v. Reynolds, 807 P.2d 383, 388 (Wyo.
1991) (citing Barnette v. Doyle, 622 P.2d 1349 (Wyo. 1981) (other citations omitted)):

                [Workers’ Compensation laws were developed to] counter the
                lack of recovery that was attributed to assumption of risk,
                contributory negligence, and the fellow servant rule. These
                doctrines, as well as other common law principles, had
                effectively shielded employers from liability. In order to
                provide compensation not based upon fault or the breach of a
                duty owed by the employer to the injured employee, the
                compromise was adopted that afforded immunity to the
                employer.

“[T]he worker’s compensation system in Wyoming is authorized by Art. 10, § 4 of the
Wyoming Constitution and provides tort immunity to employers in exchange for
employees receiving a type of industrial-accident insurance.” Perry v. State ex rel. Wyo.
Workers’ Safety & Comp. Div., 2006 WY 61, ¶ 22, 134 P.3d 1242 at 1249 (citing Spera v.
State ex rel. Wyo. Worker’s Comp. Div. 713 P.2d 1155, 1156 (Wyo. 1986)). “[T]he
worker’s compensation system is not a tort-based system but is, instead, based upon
contract.” Id. This Court said in Beard v. Brown, 616 P.2d 726, 736 (Wyo. 1980): 2

                To be injured within the course or scope of one’s employment
                in the context of the worker’s compensation system is not the
                same thing as to be in the course or scope of one’s
                employment and cause injury to a third person who is foreign
                to the employee-employer relationship, which is the
                foundation of the worker’s compensations system. . . .

                       The rule which we have adopted for worker’s
                compensation cases cannot be applied to a negligence case.
                Our general negligence theory is one based on fault worker’s
                compensation and many other statutory schemes are of a no-
                fault nature. Within the general negligence sphere, the rules


2
   As the Division points out, the Wyoming legislature amended the Wyoming Worker’s Compensation
Act in 1994 rejecting the rule of liberal construction. The statute now provides: “It is the specific intent
of the legislature that benefit claims cases be decided on their merits and that the common law rule of
‘liberal construction’ based on the supposed ‘remedial’ basis of workers’ benefits legislation shall not
apply in these cases.” Wyo. Stat. Ann. § 27-14-101(b) (LexisNexis 2013).


                                                      7
              regarding “scope of employment” are somewhat different.
              This is so for a number of reasons. A liberal statute designed
              to benefit workers is not involved. There is no special
              relationship giving rise to a special duty as in worker’s
              compensation. There is no sound reason for finding liability
              without fault for social or economic reasons.

[¶18] Contrast that explanation with general tort principles where fault is a fundamental
basis for imposing liability. See Wyo. Stat. Ann. § 1-1-109 (LexisNexis 2013). The test
of liability in the workers’ compensation setting is not the relation of an individual’s fault
or negligence to an event, as it is within the tort arena, but rather the relationship of an
event to the employment. As observed in Larson’s Workers’ Compensation Law:

              Tort litigation is an adversary contest to right a wrong between
              the contestants; workers’ compensation is a system, not a
              contest, to supply security to injured workers and distribute the
              cost to the consumers of the product.

1 Arthur K. Larson & Lex K. Larson, Larson’s Workers’ Compensation Law, § 1.03
(2013).

[¶19] While the tests for each are not identical, they do overlap. See Cottonwood Steel
Corp. v. Hansen, 655 P.2d 1226 (Wyo. 1982); Beard, 616 P.2d 726. In Cottonwood, we
developed this concept a bit further and stated:

                     In order to grasp the distinction that we will make
              between Beard v. Brown and the case at bar, it is important to
              keep in mind that Beard presents a tort question and in no
              way concerns itself with employer or employee immunity
              under the Worker's Compensation Act, while the case with
              which we are concerned in this appeal presents an exercise in
              interpreting a worker’s compensation statute. In Beard, we
              were asked to decide whether, under applicable tort law, the
              employee was, when going home from the workplace,
              furthering the interests and subject to the control of the
              employer to such a degree that the employer became
              vicariously liable for her negligent acts. Here, on the other
              hand, we are asked to decide, in a worker’s compensation
              case, whether a covered driver of his covered passenger co-
              employees who is en route home from the work place is in the
              “scope of * * * [his] employment” as that term is employed in
              the co-employee immunity section of the worker’s
              compensation law.



                                               8
       In Beard v. Brown we very carefully distinguished
between the meaning of the term “scope of employment”
when used in the law of tort as compared to its employment
in worker’s compensation law. After referring to opinions
from this court in which we held that a worker going to and
from work will be held to be in the “scope or course”
(emphasis added) of employment where the employer pays
for the time consumed in this work-related activity, we said,
distinguishing Beard from this body of law:

     “The rule stated in the above citation is considerably
     broader than was necessary to accommodate the facts of
     the cases in which it has been used. In two of the above-
     cited cases, the employer was either active in arranging
     or providing transportation for an employee. By saying
     this, we do not intend to overrule or limit in any way the
     holdings of those cases. It is sufficient to point out that
     they are all worker’s compensation cases and, as such,
     their holdings are not generally applicable in the
     negligence area. To be injured within the course or
     scope of one’s employment in the context of the worker’s
     compensation system is not the same thing as to be in
     the course or scope of one’s employment and cause
     injury to a third person who is foreign to the employee-
     employer relationship, which is the foundation of
     worker’s compensation system. Worker’s compensation
     is a creature of statute and one designed especially to
     protect workers injured in the course of their work. The
     statute is liberally construed to provide coverage to the
     worker. Within the context of the statute, the employer
     has a special duty vis-a-vis the employees who work for
     him. Under worker’s compensation, an employee is
     covered for injuries which arise ‘* * * out of and in the
     course of employment while at work in or about the
     premises occupied, used or controlled by the employer,
     incurred while at work in places where the employer’s
     business requires an employee’s presence * * *,’ § 27-
     12-102(a)(xii), W.S.1977. This states a problem of
     proof different from that which is encountered in the
     negligence area.

     “The rule which we have adopted for worker’s
     compensation cases cannot be applied to a negligence


                               9
    case. Our general negligence theory is one based on
    fault--worker’s compensation and many other statutory
    schemes are of a no-fault nature. Within the general
    negligence sphere, the rules regarding ‘scope of
    employment’ are somewhat different. This is so for a
    number of reasons. A liberal statute designed to benefit
    workers is not involved. There is no special relationship
    giving rise to a special duty as in worker’s
    compensation. There is no sound reason for finding
    liability without fault for social or economic reasons.

    “The Arizona Supreme Court recently addressed this
    question:
      “ ‘* * * [T]he going and coming rule was largely
      judicially developed in order to provide compensation
      to workmen for injuries which were incurred while
      within the range of dangers associated with their
      employer's premises. There can therefore be no
      reason to apply it to a situation where the recipient of
      the benefits of the rule is not an injured workman.’
      Driscoll v. Harmon, 1979, 124 Ariz. 15, 601 P.2d
      1051, 1052.”

    “We agree with this reasoning.

    “The rule as regards ‘scope of employment’ in the
    general negligence sphere is that set out in Miller v.
    Reiman-Wuerth Co. [598 P.2d 20], supra, i.e., there must
    be some direct benefit to the employer and the employer
    must exercise some control over the employee. Buller
    was in no different status than her two passengers who
    were likewise being paid and doing nothing but being
    carried to the place where they too would commence the
    duties for which they were employed. To the extent that
    rule is inconsistent with the worker’s compensation rule,
    the inconsistency is explainable, sound, and well-
    grounded as discussed above.” (Emphasis added.) 616
    P.2d at 736-737.

      From this quote from Beard v. Brown it should be clear
to all that we were distinguishing “scope of employment” in
the area of tort from “course or scope” of employment in the
worker’s compensation context. And it is to be noted in


                              10
              Beard that the terms “course of employment” and “scope of
              employment” are used interchangeably when alluding to the
              liberal interpretation rules of worker’s compensation law. We
              do not differentiate in Beard between the words “scope” on
              the one hand and “course” on the other. “Course or scope” is
              the language we use. We considered that, for worker’s
              compensation purposes, these terms are interchangeable. In
              other words, they mean the same thing. This being our
              intention, it follows that the distinction that the appellants
              urge is without merit. That is, we do not, for purposes of the
              worker’s compensation law, distinguish between the meaning
              of “scope of their employment” as it appears in the immunity
              section, § 27-12-103(a), supra n.2, and “course of
              employment” as it appears in § 27-12-102(a)(xii), supra n.3,
              which is the definition of compensable injuries section of the
              Act. To make such a distinction would lead to the
              incongruous holding which would say that, under the facts of
              this case, the workers were, when returning home from work,
              within the “course of their employment” for the purpose of
              granting worker’s compensation benefits for their injuries and
              deaths, but the covered driver was not, at that time, within the
              “scope of * * * [his] employment” for the purpose of
              furnishing § 27-12-103(a) immunity to his estate from suit by
              covered passenger co-employees.

                    This leaves us to reach the following conclusion: The
              case at bar, being a worker’s compensation case, cannot be
              resolved by holding the term “scope of * * * [his]
              employment” to have the same meaning that we said it had in
              Beard v. Brown, supra, which was a tort case. The meaning
              of that term is different when it is used in the worker’s
              compensation statute than it is when employed in the law of
              tort.

Cottonwood, 655 P.2d at 1233-1235 (italics in original). If a finding that Carson was
acting within the scope of his employment for tort liability purposes would necessarily
mean that he was also acting within the scope for Wyoming Worker’s Compensation Act
purposes, that the tests serve different policy objectives does not necessarily prevent the
application of collateral estoppel. Nonetheless, collateral estoppel remains inapplicable
in this instance, in large part because of the necessity of a retroactive application.

[¶20] Carson insists that he is not asking for a “retroactive” application of collateral
estoppel. Rather, he asserts that the federal court’s conclusion -- that he was in the course



                                              11
and scope of his employment when he lost control of his vehicle -- was the first decision
on the facts and evidence used by the federal jury. As a result the OAH on remand was
collaterally estopped from answering the very same question asked of the federal jury in
the opposite. Thus, he submits that labeling the application of collateral estoppel as
“retroactive” is misleading. He further relies upon other jurisdictions to illustrate his point
that rather than collateral estoppel being retroactively applied here, it would instead be
applied with this in mind: When inconsistent factual determinations are made in separate
actions, the later determination is accorded conclusive effect in a third action. Casillas v.
Arizona Dep’t of Economic Sec., 153 Ariz. 579, 739 P.2d 800, 802 (Ariz. 1986).

[¶21] It is typically true that if two or more courts render inconsistent judgments on the
same claim or issue, a court facing the same issue in yet a third proceeding is normally
bound to follow the most recent determination that satisfies the requirements of res
judicata. According to the Restatement (Second) of Judgments: “When in two actions
inconsistent final judgments are rendered, it is the later, not the earlier, judgment that is
accorded conclusive effect in a third action under the rules of res judicata.” Restatement
(Second) of Judgments § 15 (1982). The comments to Section 15 state in part that “when
a prior judgment is not relied upon in a pending action in which it would have had
conclusive effect as res judicata, the judgment in that action is valid even though it is
inconsistent with the prior judgment.” Id., comment b. See also Casillas, 739 P.2d at 802
(applying the same rule to collateral estoppel).

[¶22] In our opinion, this case does not involve a third decision of the same general issue
but rather the first. The Restatement does not provide that a second judgment ever
controls over a first one on res judicata grounds, which strongly indicates that res judicata
cannot be applied in retrospect. Here, neither can collateral estoppel. Consequently, a
party must live with the contradictory judgments unless there are grounds to revisit the
first determination under W.R.C.P. 60 and the trier of fact determines that it should be
modified. Here, there was no such conclusion.

[¶23] Collateral estoppel also neither bars nor requires W.R.C.P. 60(b) relief in the case
of contradictory decisions, as we have here. “[T]he doctrines of res judicata, collateral
estoppel, and judicial estoppel do not bar a motion for relief from judgment under
W.R.C.P. 60(b).” MAM v. State Dep’t of Family Servs., 2004 WY 127, ¶ 13, 99 P.3d 982,
985 (Wyo. 2004). This Court cannot imagine a scenario where the doctrines should
compel a change in the original judgment any more than they can preclude such a change.
In Carson I, we found that the district court acted well within its discretion to supplement
the record pursuant to W.R.A.P. 12.08. However, we reversed and remanded for the
district court to remand to the OAH to consider the supplemented record. Since Rule
60(b) does not fall within the doctrines of res judicata and collateral estoppel, the hearing
examiner was free to evaluate the supplemental evidence and properly found that Carson
still did not prove the claim should be reopened or that a different result should be reached



                                               12
under W.R.C.P. 60(b). The record contains careful analysis and substantial evidence to
support that conclusion. The OAH stated that

             … even with the supplemental materials, the only offered
             evidence of a causal connection between Carson’s trip to
             Jackson on January 19, 2006, and his employment with
             Metrocities was the testimony of Gunderson and Reynolds
             that an appointment had been arranged to discuss a
             refinance. The other suggestion that he may have been
             distributing or picking up marketing materials is simply
             speculation.

The OAH went on to explain:

                  49. The testimony of Reynolds and Gunderson is not
             deemed persuasive because,

                    a. their testimony is not consistent. As set forth above
             Gunderson testified that Reynolds was instrumental in setting
             up the meeting. Reynolds states it was all Gunderson’s
             doings.

                    b. their testimony is not supported by any
             documentation. Gunderson and Reynolds’ testimony that they
             had not yet filled out a loan application was not disputed and
             therefore evidence of the loan application is not expected. The
             evidence does however show that Carson kept his other
             employer, Salt River Financial Inc., well advised of his
             business contacts and did not mention Gunderson or Reynolds.
             Further, to get the figures and rates for their meeting as
             Gunderson referenced in his testimony, some prequalification
             steps such as a good faith estimate should have been
             generated, but there is no record of such.

                    c. the evidence showed that Gunderson and Reynolds
             may have had some bias in favor of or motivation to assist
             Carson given their relationship both business and personal
             with Gerre McClintock [Carson’s father-in-law]. It is also
             noted in the prior Order that McClintock was also found not to
             be credible and indeed had blatantly misrepresented his son in
             law’s continued employment with Salt River[.]




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We conclude that substantial evidence existed to support the OAH’s decision, and we
affirm.

                                   CONCLUSION


[¶24] We affirm the district court’s order affirming the administrative action taken by
the OAH.




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