335 P.3d 455
Wyo.2014Background
- Merlin and Lori Zowada sought a private road across Mullinax Concrete’s property to access their landlocked parcel; the Board of County Commissioners considered six routes, but litigation focused on Route 1 (Zowadas’ choice) and Route 6 (Board’s choice).
- Two sets of court-appointed viewers/appraisers issued conflicting recommendations: one rejected Route 1 because Mullinax’s DEQ-mandated stormwater plan placed a sediment pond at the northern end of Route 1; the other favored Route 1 but was later rejected by the Board after Mullinax purchased adjacent land impacting Route 6.
- This Court in Mullinax I remanded, instructing the Board to compare only Routes 1 and 6, justify any greater cost of Route 6, and obtain before-and-after valuation for Mullinax’s newly purchased parcel if Route 6 were chosen; the Court also found BNSF would permit the needed railroad crossing.
- After remand, Mullinax built the engineered sediment-retention pond (2008–2009) for $23,799 and testified it worked, capturing ~240 tons of sediment annually; Zowadas proposed multiple alternative stormwater solutions, which the Board found speculative and likely more costly or impractical.
- The Board calculated damages: ~$35,000 impact on Mullinax if Route 1 were selected (including relocation costs for stormwater control) versus ~$6,500 for Route 6; Mullinax also stated it would build and maintain the Route 6 road for up to $50,000.
- The Board selected Route 6 as the most reasonable and convenient route; Zowadas challenged admissibility of post-2007 evidence and the sufficiency of the record supporting the Board’s findings; the Supreme Court affirms.
Issues
| Issue | Zowada's Argument | Mullinax's / Board's Argument | Held |
|---|---|---|---|
| Whether post-2007 events (construction of Mullinax’s pond and Mullinax’s testimony about road cost) were inadmissible because remand limited the Board to the 2007 record | Evidence about the pond and Mullinax’s $50,000 road estimate should be excluded as outside the prior mandate | The remand did not freeze the evidentiary record to 2007; the Board was authorized to take additional evidence relevant to comparing Routes 1 and 6 and damages | Admitted: remand did not bar post-2007 facts; evidence was relevant and properly admitted |
| Whether Mullinax’s testimony about its willingness/capacity to build Route 6 for $50,000 was inadmissible as a settlement offer under evidence rule analogues | The $50,000 statement is a settlement offer (Rule 408) and should be excluded | Mullinax’s promise was a factual commitment about performance/costs, not a compromise offer; admissible as substantive evidence | Admitted: treated as factual, not inadmissible settlement evidence |
| Whether the Board’s factual findings (pond efficacy, costs of alternatives, damages) were supported by substantial evidence | The Zowadas argue alternatives could be viable and less costly; the Board’s selection of Route 6 lacks substantial evidentiary support | Mullinax presented concrete costs, functioning pond, and credible expert testimony; Zowadas’ alternatives were conceptual, lacked surveys, omitted utility/conflict costs, and bore speculative estimates | Affirmed: Board’s findings are supported by substantial evidence; Zowadas’ evidence was speculative |
| Whether the Board properly compared costs and justified selecting the more expensive Route 6 (if so) | Zowadas: Board failed to justify higher cost and didn’t adequately compare alternatives or explain convenience | Board found Route 6’s net impact to Mullinax was smaller, Mullinax would construct/maintain the road for ~$50,000, and Route 1 would impose greater remediation/relocation costs; traffic/safety concerns also favored Route 6 | Affirmed: Board reasonably compared costs/benefits, justified choosing Route 6, and complied with remand instructions |
Key Cases Cited
- Mullinax Concrete Service Co. v. Zowada, 243 P.3d 181 (Wyo. 2010) (remanding for comparison of Routes 1 and 6 and valuation instructions)
- Mullinax Concrete Service Co. v. Zowada, 275 P.3d 474 (Wyo. 2012) (addressing statutory amendments and retroactivity)
- Johnson v. State ex rel. Wyoming Workers' Safety & Comp. Div., 321 P.3d 318 (Wyo. 2014) (abuse-of-discretion standard for evidentiary rulings in administrative proceedings)
- Watkins v. State ex rel. Wyoming Medical Comm’n, 250 P.3d 1082 (Wyo. 2011) (administrative hearings not bound by technical rules of evidence)
- Easum v. Miller, 92 P.3d 794 (Wyo. 2004) (credibility contests affect weight, not admissibility)
- Robinson v. State, 11 P.3d 361 (Wyo. 2000) (testimony credibility is for factfinder)
- Birch v. State ex rel. Wyoming Workers' Safety & Comp. Div., 319 P.3d 901 (Wyo. 2014) (definition and application of substantial evidence review)