                IN THE SUPREME COURT, STATE OF WYOMING

                                        2015 WY 57

                                                            APRIL TERM, A.D. 2015

                                                                   April 15, 2015

GREGORY D. LAVITT and DEBRA C.
LAVITT,

Appellants
(Defendants),
                                                     S-14-0190
v.

HARRY E. STEPHENS,

Appellee
(Plaintiff).


                     Appeal from the District Court of Albany County
                         The Honorable Keith G. Kautz, Judge

Representing Appellants:
      Mitchell H. Edwards, Nicholas & Tangeman, LLC, Laramie, Wyoming.

Representing Appellee:
      Frank J. Jones, Wheatland, Wyoming.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, JJ.




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.
FOX, Justice.

[¶1] In an earlier proceeding which we affirmed on appeal, the district court
determined that the appellee, Harry E. Stephens, forfeited a legally enforceable easement
across the property of the appellants, Gregory D. Lavitt and Debra C. Lavitt (Lavitts).
Thereafter, Mr. Stephens petitioned the district court to condemn a private road to his
landlocked property, proposing a route crossing the Lavitts’ property identical to the
easement that had been terminated. The district court dismissed the Lavitts from the
private road action, finding that Mr. Stephens had created his own lack of access. The
Lavitts requested that the district court impose sanctions against Mr. Stephens and his
attorney and award them costs and attorney’s fees for bringing a second private road
action. The district court declined to do so. We affirm.

                                               ISSUES

[¶2] 1. Did the district court abuse its discretion when it declined to award costs and
attorney’s fees to the Lavitts pursuant to W.R.C.P. 41(d)?

       2. Did the district court abuse its discretion when it declined to impose sanctions
against Mr. Stephens and his attorney pursuant to W.R.C.P. 11?

                                                FACTS

[¶3] We considered the first chapter of this road easement dispute in Stephens v. Lavitt,
2010 WY 129, 239 P.3d 634 (Wyo. 2010). The Lavitts and Mr. Stephens own mountain
property near one another in Albany County, Wyoming. Id. at ¶ 3, 239 P.3d at 636. In
2007, Mr. Stephens filed a petition with the Board of County Commissioners of Albany
County (Board) requesting that the Board condemn a private road to provide Mr.
Stephens access to his land-locked property. In his petition, Mr. Stephens named the
Lavitts as affected parties, and proposed a route traversing their property.

[¶4] Thereafter, Mr. Stephens commenced a declaratory judgment action in district
court seeking a ruling that he held a valid easement across the Lavitts’ property.1
Stephens, 2010 WY 129, ¶ 4, 239 P.3d at 636. The district court determined that Mr.
Stephens did hold a valid easement, but imposed conditions on Mr. Stephens’ use of the
easement. Id. at ¶¶ 6-7, 239 P.3d at 636. Mr. Stephens repeatedly violated these
conditions,2 which resulted in the district court finding that Mr. Stephens had forfeited

1
  The Board stayed the private road proceedings until the district court ruled on the declaratory judgment
action.
2
  The district court found that Mr. Stephens had violated the conditions placed upon his use of the
easement by cutting the lock off the gate used to protect the various properties from vandalism, and
placing a combination lock on the gate, as ordered by the court, but stamping the combination on the lock
allowing anyone to enter the gated area, thus defeating the purpose of the locked gate. Stephens, 2010


                                                    1
the easement due to his own bad acts. Id. at ¶ 8, 239 P.3d at 637. In 2009, the district
court terminated Mr. Stephens’ easement, and on appeal, we affirmed. Id. at ¶¶ 8, 22,
239 P.3d at 637, 640.

[¶5] In the meantime, prior to the district court’s determination that Mr. Stephens
forfeited the easement, the parties stipulated to a dismissal of the Lavitts from the private
road action pending in front of the Board. After the district court’s termination of Mr.
Stephens’ easement, the private road action before the Board continued for nearly four
years, until July 2013, when Mr. Stephens withdrew his application for a private road and
the Board dismissed the proceeding.

[¶6] Mr. Stephens then filed a complaint in district court pursuant to Wyo. Stat. Ann.
§ 24-9-101 (LexisNexis 2013), requesting that the court condemn a private road allowing
access to Mr. Stephens’ land-locked property. Mr. Stephens again named the Lavitts as
affected parties and proposed a route traversing the portion of the Lavitts’ property where
his former easement lay. The Lavitts moved to dismiss the complaint, arguing, among
other things, that Mr. Stephens failed to bring the private road action in good faith. The
Lavitts also filed a Rule 11 motion requesting that the district court impose sanctions
against Mr. Stephens and his attorney. The Lavitts filed an additional motion requesting
that the district court award them costs and attorney’s fees pursuant to W.R.C.P. 41(d).
The district court held a hearing on the Lavitts’ motions. At its conclusion, the district
court ruled from the bench, finding that Mr. Stephens had created his own lack of access,
which precluded him from seeking a road across the Lavitts’ property. It therefore
dismissed the Lavitts from the private road action. The district court then declined to
award sanctions against Mr. Stephens or his attorney, stating:

                The court recognizes that there has been a prior action before
                the county commissioners in Albany County and that was
                dismissed and then the matter is raised in the district court.
                However, the change of process or procedure that the
                legislature enacted to the court’s way of thinking is sufficient
                to not make this just a repetitive, redundant procedure. The
                legislature was really concerned about bringing these private
                road actions in the county commissioners forum instead of
                with the courts. So, the court doesn’t find that this is just a
                redundant, repetitive action. The court also finds and
                recognizes that the remedy [terminating the easement] the
                court previously entered is a drastic, unique remedy and the

WY 129, ¶ 8, 239 P.3d at 636-37. The district court also found that Mr. Stephens and his family members
had physically threatened the Lavitts, harassed them by parking near the Lavitts’ cabin and pointing their
headlights into the Lavitts’ bedroom window in the early morning hours, entered the Lavitts’ cabin
without invitation or permission, and deposited cigarette butts near the Lavitts’ cabin, presenting an
extreme fire hazard.


                                                    2
                application or non-application of private road availability was
                unknown.

The Lavitts appealed the district court’s denial of their Rule 11 and Rule 41(d) motions.3

                                             DISCUSSION

I.     Did the district court abuse its discretion when it declined to award costs and
       attorney’s fees to the Lavitts pursuant to W.R.C.P. 41(d)?

[¶7] Because the award of costs4 under Rule 41(d) is discretionary with the district
court, we apply an abuse of discretion standard. Graus v. OK Invs., Inc., 2014 WY 166,
¶ 10, 342 P.3d 365, 368 (Wyo. 2014). However, “[w]hile the award of costs itself is
reviewed for an abuse of discretion, the question whether a particular costs provision
applies requires construction of a court rule, which is a question of law that we review de
novo.” Id. at ¶ 11, 342 P.3d at 369 (citing Stewart Title Guar. Co. v. Tilden, 2008 WY
46, ¶ 7, 181 P.3d 94, 98 (Wyo. 2008)).

[¶8] In construing rules of procedure, we apply the same guidelines as those we use
when interpreting statutes. Busch v. Horton Automatics, Inc., 2008 WY 140, ¶ 13, 196
P.3d 787, 790 (Wyo. 2008). We first determine whether the statute or procedural rule is
ambiguous. Id. If not, we interpret the plain language of the rule according to the
“ordinary and obvious meaning of the words employed,” giving due regard to their
arrangement and connection. Id.

[¶9]    Rule 41(d) states:

                If a plaintiff who has once dismissed an action in any court
                commences an action based upon or including the same claim
                against the same defendant, the court may make such order
                for the payment of costs of the action previously dismissed as
                it may deem proper and may stay the proceedings in the
                action until the plaintiff has complied with the order.

Rule 41 (d) provides that the dismissal must occur “in any court.” Mr. Stephens argues
that the only case he voluntarily dismissed took place with the Board, which is an agency,

3
  Mr. Stephens also appealed the district court’s order dismissing his private road action, but after briefing
by the parties, Mr. Stephens filed a motion to dismiss the appeal, which we granted.
4
  Rule 41(d) provides for the award of costs, but does not explicitly provide for the award of attorney fees.
There is a split in federal authority concerning whether Rule 41(d) encompasses attorney fees as well as
costs. 9 Charles A. Wright et al., Federal Practice and Procedure § 2375 (3d ed. 2008). Our conclusion
does not require us to determine whether W.R.C.P. 41(d) allows for the award of attorney fees as well as
costs. We therefore refrain from resolving that issue in this case.


                                                      3
not a court; thus, Rule 41(d) is not applicable. The Lavitts argue that because a contested
case hearing is similar to a judicial proceeding, the Board should be construed to be
acting as a “court” during such proceedings, and the award of costs should be available
under Rule 41(d). We find that the ordinary meaning of the word “court” as used in
W.R.C.P. 41(d) does not include an agency, and that the provisions of that rule are not
applicable to this case.

[¶10] Both parties agree that the Board is an “agency” as defined by the Wyoming
Legislature. “‘Agency’ means any authority, bureau, board, commission, department,
division, officer or employee of the state, a county, city or town or other political
subdivision of the state, except the governing body of a city or town, the state legislature,
the University of Wyoming and the judiciary[.]” Wyo. Stat. Ann. § 16-3-101(b)(i)
(LexisNexis 2013) (emphasis added). This clearly indicates the legislature’s intent to
distinguish between the judiciary and administrative agencies in Wyoming. See
Worcester v. State, 2001 WY 82, ¶ 13, 30 P.3d 47, 52 (Wyo. 2001) (“This court interprets
statutes by giving effect to the legislature’s intent.”).

[¶11] The nature of the judicial branch when compared with administrative agencies
further solidifies our conclusion that the term “court” and “agency” cannot be considered
coextensive. The courts of our state are created and maintained as a separate,
independent branch of government in accordance with the mandates of the Wyoming
Constitution. Wyo. Const. art. 5. An administrative agency, however, is an arm of the
executive branch. Matter of Contempt Order Issued Against Anderson, 765 P.2d 933,
935 (Wyo. 1988). To find that our judicial system and administrative agencies are one
and the same would be to disrupt the delicate system of checks and balances on which
our government relies. We decline to do so.

[¶12] The district court did not err in denying the Lavitts’ motion for costs and
attorney’s fees pursuant to W.R.C.P. 41(d). Such an award is not available under Rule
41(d) when the prior action voluntarily dismissed was one commenced in an
administrative agency rather than in a judicial court.

II.    Did the district court abuse its discretion when it declined to impose sanctions
      against Mr. Stephens and his attorney pursuant to W.R.C.P. 11?

[¶13] We review a district court’s decision on whether to impose Rule 11 sanctions
under an abuse of discretion standard. Davis v. Big Horn Basin Newspapers, Inc., 884
P.2d 979, 983 (Wyo. 1994) (citing LC v. TL, 870 P.2d 374, 381 (Wyo. 1994)). Our
touchstone inquiry in determining whether a court abused its discretion is whether the
trial court could have reasonably concluded as it did. Dewey v. Dewey, 2001 WY 107,
¶ 18, 33 P.3d 1143, 1148 (Wyo. 2001); Vaughn v. State, 962 P.2d 149, 151 (Wyo. 1998).




                                             4
[¶14] A Rule 11 analysis requires a two-step inquiry. First a court must determine
whether there has been a violation of Rule 11(b). Only if such a violation occurs does
the court consider whether sanctions should be imposed pursuant to Rule 11(c).
W.R.C.P. 11(c) (“If . . . the court determines that subdivision (b) has been violated, the
court may . . . impose an appropriate sanction.” (emphasis added)). Because we find that
the district court did not abuse its discretion in determining that there was no violation of
Rule 11(b), we need not consider whether sanctions were appropriate.

[¶15] W.R.C.P. 11(b) provides:

                  By presenting to the court (whether by signing, filing,
                  submitting, or later advocating) a pleading, written motion, or
                  other paper, an attorney or unrepresented party is certifying
                  that to the best of the person’s knowledge, information, and
                  belief, formed after an inquiry reasonable under the
                  circumstances:
                          (1) It is not being presented for any improper
                       purpose, such as to harass or to cause unnecessary delay
                       or needless increase in the cost of litigation;
                          (2) The claims, defenses, and other legal contentions
                       therein are warranted by existing law or by a
                       nonfrivolous argument for the extension, modification, or
                       reversal of existing law or the establishment of new law;
                          (3) The allegations and other factual contentions
                       have evidentiary support or, if specifically so identified,
                       are likely to have evidentiary support after a reasonable
                       opportunity for further investigation or discovery; and
                          (4) The denials of factual contentions are warranted
                       on the evidence or, if specifically so identified, are
                       reasonably based on a lack of information or belief.

The Lavitts contend that Mr. Stephens and his attorney violated Rule 11(b) in two ways.
They argue that the district court action was filed for improper purposes in violation of
Rule 11(b)(1), and that Mr. Stephens’ claims are not warranted by existing law or
nonfrivolous argument for the extension, modification, or reversal of existing law in
violation of Rule 11(b)(2). The district court determined that, based on the change in the
procedure for private road actions initiated by the legislature5 and the drastic remedy the
court imposed in terminating Mr. Stephens’ easement, there remained a question whether
Mr. Stephens could apply for a private road, and there was therefore no Rule 11 violation.



5
    Discussed infra ¶ 17.


                                                 5
[¶16] We analyze each of the Rule 11(b) elements independently as “violation of any of
them triggers the sanctions provisions of the rule.” 5A Charles A. Wright et al., Federal
Practice and Procedure § 1335 (3d ed. 2004); see also Whitehead v. Food Max of Miss.,
Inc., 332 F.3d 796, 802 (5th Cir. 2003). We begin with the Lavitts’ contention that Mr.
Stephens and his attorney violated Rule 11(b)(2), which requires that the claims made are
“warranted by existing law or by a nonfrivolous argument for the extension,
modification, or reversal of existing law or the establishment of new law.” We must
therefore examine the law pertaining to private roads in Wyoming at the time of these
actions.

[¶17] The private road statutes, Wyo. Stat. Ann. § 24-9-101, et seq., have undergone
significant revision over the years, with the most recent amendments enacted in 2013.
Prior to 2013, an applicant for a private road was required to file his action with the board
of county commissioners in the county where the applicant’s land was located. Wyo.
Stat. Ann. § 24-9-101(a) (LexisNexis 2011). After the 2013 amendment, a private road
action could only be commenced in district court. Wyo. Stat. Ann. § 24-9-101(a)
(LexisNexis 2013). While the forum for filing a private road action changed, the
substantive requirements for an application remained essentially the same. Compare
Wyo. Stat. Ann. § 24-9-101(a) (LexisNexis 2013) with Wyo. Stat. Ann. § 24-9-101(a)
(LexisNexis 2011).

[¶18] One such substantive requirement, which remained unchanged with the 2013
amendments, is that a private road action be commenced in good faith. In Mayland v.
Flitner, 2001 WY 69, 28 P.3d 838 (Wyo. 2001), we found that good faith in bringing a
private road action is an “essential prerequisite.” Id. at ¶ 13, 28 P.3d at 843. The logical
reverse of this requirement is that an applicant who acts in bad faith is precluded from
bringing a private road action. In Mayland, a respondent to a petition for a private road
argued that the applicant had not brought the private road action in good faith because he
had blocked a road to his land-locked property, thus causing his own lack of access. Id.
at ¶¶ 17-18, 28 P.3d at 845. We found that the county commissioners in that case
implicitly determined that the applicant acted in good faith in bringing the private road
action because the commissioners found that a private road was necessary. Id. at ¶ 19, 28
P.3d at 846.

              Although the County Commissioners did not specifically find
              “good faith,” they likewise did not find “bad faith.” The
              requisite “good faith” is apparent and incorporated in the
              statutory language referenced in Finding No. 12, “[the
              applicant] has demonstrated that the private road for which
              this application is filed is necessary.” Had [the respondent]
              sufficiently established his claim of bad faith [based on the
              applicant causing his own lack of access], this finding could
              not have been made because it would not have been


                                             6
                supported by the record. We conclude the record sufficiently
                demonstrates the “good faith” of the applicant as anticipated
                in Dunning [v. Ankney, 936 P.2d 61, 65 (Wyo. 1997)].

Id. We also recognized that an applicant acts in bad faith when he causes his own lack of
access, and that bad faith precludes a person from petitioning for a private road. Id. at
¶ 19. We have steadfastly adhered to our ruling that a private road action be commenced
in good faith, despite numerous amendments to the private road statutes. Voss v. Albany
Cnty. Comm’rs, 2003 WY 94, ¶ 25, 74 P.3d 714, 722 (Wyo. 2003); Wagstaff v. Sublette
Cnty. Bd. of Cnty. Comm’rs, 2002 WY 123, ¶ 12, 53 P.3d 79, 82-83 (Wyo. 2002);
Mayland, 2001 WY 69, ¶ 13, 28 P.3d at 843; Martens v. Johnson Cnty. Bd. of Comm’rs,
954 P.2d 375, 380 (Wyo. 1998); Dunning v. Ankney, 936 P.2d 61, 65 (Wyo. 1997);
McGuire v. McGuire, 608 P.2d 1278, 1286 (Wyo. 1980). While we have not yet had the
opportunity to address our good faith requirement in light of the 2013 amendments,
considering that these amendments were procedural rather than substantive, we find no
reason to depart from our precedent.

[¶19] We turn to the question of whether Mr. Stephens or his attorney violated the
provisions of Rule 11(b)(2) in commencing a second private road action in district court.
According to Rule 11(b)(2), Mr. Stephens’ complaint in district court must be warranted
by: (1) the existing substantive law; or (2) a nonfrivolous argument for the extension,
modification or reversal of the existing substantive law; or (3) a nonfrivolous argument
for the establishment of new substantive law. W.R.C.P. 11(b)(2); see also 5A Wright,
supra § 1335. Trial courts must apply an objective standard when determining whether a
party has violated Rule 11(b)(2), asking whether the conduct was objectively reasonable
under the circumstances. Meyer v. Mulligan, 889 P.2d 509, 517-18 (Wyo. 1995); see
also Fed.R.Civ.P. 11, 1993 Notes of Advisory Committee.6 Thus, our duty upon review
is to determine whether the district court could reasonably have concluded that Mr.
Stephens and his attorney acted reasonably and based on a nonfrivolous argument.
Meyer, 889 P.2d at 517-18.

[¶20] There is no question that Mr. Stephens caused his own lack of access in this case.
Mr. Stephens admitted to as much in his complaint for a private road filed in district
court. In Mayland we determined that good faith is an “essential prerequisite” to
bringing a private road action, and a party acts in bad faith when he causes his own lack
of access. Mayland, 2001 WY 69, ¶¶ 13, 19, 28 P.3d at 843, 845-46. Thus, Mr.
Stephens’ claims are not supported by existing law because he was precluded
from bringing a private road action by his own bad faith. See W.R.C.P. 11(b)(2) (“The


6
 Wyoming’s Rule 11 is identical to its federal counterpart, thus, relevant federal authority interpreting
Rule 11 is persuasive. Bromley v. State, 2009 WY 133, ¶ 18, 219 P.3d 110, 115 (Wyo. 2009); Meyer, 889
P.2d at 517.


                                                   7
claims . . . are warranted by existing law[.]”). However, the question is whether the filing
party has presented a nonfrivolous argument to the court.

[¶21] The district court determined that the drastic remedy imposed in terminating Mr.
Stephens’ easement created uncertainty in whether Mr. Stephens could petition for a
private road, and that Mr. Stephens and his attorney acted reasonably and in a
nonfrivolous manner in filing the complaint in district court. We cannot say that the
district court acted unreasonably in coming to this conclusion. Vaughn, 962 P.2d at 151.
Forfeiture of an easement based on misuse is a drastic remedy, and this case presents the
Court with a unique circumstance. See Stephens, 2010 WY 129, ¶¶ 20, 21, 239 P.3d at
640 (recognizing that forfeitures are generally abhorred, and that termination of the
easement was an “onerous” remedy). We have a “long established public policy against
land-locking property and rendering it useless.” In re Private Road ex rel. Cross, 2013
WY 79, ¶ 24, 304 P.3d 932, 938 (Wyo. 2013). In Mr. Stephens’ appeal challenging the
district court’s decision to terminate the easement, we recognized, in dicta, that Mr.
Stephens’ property would not be land-locked, stating, “Mr. Stephens can still access his
property by using the Mart Miller Road.” Stephens, 2010 WY 129, ¶¶ 21, 22, 239 P.3d at
640. Additional proceedings following that appeal have revealed that Mr. Stephens does
not, in fact, have another legally enforceable route to access his property. Thus, once the
district court terminated Mr. Stephens’ easement, his property became land-locked. It
was therefore, arguably, unclear which policy consideration—the reluctance to land-lock
property or the requirement that applications be brought in good faith—would prevail in
a situation such as this. The district court did not abuse its discretion in determining that
there was uncertainty in the law under these circumstances.

[¶22] The Lavitts also argued that Mr. Stephens and his attorney violated Rule 11(b)(1)
because they brought the district court action for an improper purpose—to harass.
“[G]enerally, district courts do not sanction attorneys [or parties] who make nonfrivolous
representations. A district court may do so, however, where it is objectively ascertainable
that an attorney [or party] submitted a paper to the court for an improper purpose.”
Whitehead, 332 F.3d at 805. The district court made no independent findings on the issue
of whether Mr. Stephens’ complaint was filed for an improper purpose. Instead, the court
relied on its holding that the complaint was not frivolous. Ordinarily, a district court’s
reliance on its finding that a filing was not frivolous is sufficient justification to decline
imposing sanctions pursuant to Rule 11(b)(1). F.D.I.C. v. Calhoun, 34 F.3d 1291, 1300
(5th Cir. 1994); New Alaska Dev. Corp. v. Guetschow, 869 F.2d 1298, 1305 (9th Cir.
1989). A filing made for improper purposes is not immunized from Rule 11 sanctions
simply because it is not frivolous; however only under “unusual circumstances” should
such a filing constitute sanctionable conduct. Sheets v. Yamaha Motors Corp., 891 F.2d
533, 538 (5th Cir. 1990). We are not convinced that this case presents such an “unusual
circumstance.” While the record clearly demonstrates an animus between the parties, the
Lavitts do not direct us to any specific evidence demonstrating that Mr. Stephens’ intent
in filing the district court action was to “harass” the Lavitts. Mr. Stephens’ property was


                                              8
land-locked, and it is plausible that he was attempting to utilize every possible avenue to
ensure that it did not remain so. We find that the district court did not abuse its discretion
in relying on its finding that Mr. Stephens’ complaint was not frivolous.

[¶23] The district court determined that Mr. Stephens’ voluntary dismissal of his first
private road action and commencement of a second in district court was not frivolous
because “the change of process or procedure that the legislature enacted to the court’s
way of thinking is sufficient to not make this just a repetitive, redundant procedure.”
Again, we cannot find that the district court acted unreasonably in concluding as it did.
The legislature did, indeed, change the forum in which a private road action could be
commenced with its 2013 amendments to the private road statutes. Wyo. Stat. Ann. § 24-
9-101(a). The newly amended statutes provided no guidance on whether an action
commenced prior to the amendment could be dismissed and refiled in district court
following the amendment’s effective date. While we may have come to a different
conclusion, under our abuse of discretion standard of review, we will not set aside a trial
court’s decision merely because we may have reached another result. Roberts v. Vilos,
776 P.2d 216, 217 (Wyo. 1989).

[¶24] The district court’s decision to not impose sanctions was based on its finding that
the complaint filed by Mr. Stephens in district court was not frivolous, and as a result,
there was no violation of Rule 11(b). We find that there was no abuse of discretion in the
district court’s holding and affirm. Because there was no violation of Rule 11(b), we
need not consider whether the imposition of sanctions was appropriate pursuant to Rule
11(c). See W.R.C.P. 11(c) (“[T]he court may . . . impose an appropriate sanction upon
the attorneys, law firms, or parties that have violated subdivision (b) or are responsible
for the violation.”).

                                      CONCLUSION

[¶25] We find that the district court did not abuse its discretion when it denied the
Lavitts’ motion for costs and attorney’s fees pursuant to W.R.C.P. 41(d), and affirm. We
also find there was no abuse of discretion in the district court’s decision to not impose
Rule 11 sanctions against Mr. Stephens and his attorney. Affirmed.




                                              9
