author: GRAY, Justice.

text:
    BTU WESTERN RESOURCES, INC. ; School Creek Coal Resources, LLC ; and Peabody Powder River Mining, LLC, Appellants (Defendants), v. BERENERGY CORPORATION, Appellee (Plaintiff).
    Berenergy Corporation, Appellant (Plaintiff), v. BTU Western Resources, Inc. ; School Creek Coal Resources, LLC ; and Peabody Powder River Mining, LLC, Appellees (Defendants).
    S-18-0203, S-18-0204
    Supreme Court of Wyoming.
    May 28, 2019
    Representing BTU Western Resources, Inc.; School Creek Coal Resources, LLC; and Peabody Powder River Mining, LLC: Patrick R. Day, Thomas L. Sansonetti, Matt J. Micheli, and Jeffrey S. Pope, Holland & Hart LLP, Cheyenne, Wyoming. Argument by Mr. Day.
    Representing Berenergy Corporation: Darin B. Scheer and Keith Burron, Crowley Fleck PLLP, Cheyenne, Wyoming; Peter C. Forbes, Carver Schwarz McNab Kamper & Forbes, LLC, Denver, Colorado. Argument by Mr. Forbes.
    Before DAVIS, C.J., and FOX, KAUTZ, GRAY, and BURKE (RET.), JJ.
   GRAY, Justice.

[¶1] This dispute, over priority of rights between mineral developers in Wyoming's Powder River Basin, is before the Court a second time. Berenergy owns rights to both federal and private oil and gas. Peabody holds federal coal leases, and these minerals overlap. Berenergy Corp. v. BTU Western Resources, Inc. , 2018 WY 2, ¶¶ 38-42, 408 P.3d 396, 404 (Wyo. 2018) ( Berenergy I ). In Berenergy I , we determined the United States Department of Interior, Bureau of Land Management (BLM) was a necessary party to the proceedings dealing with competing federal leases. We remanded Berenergy I to the district court to determine whether the BLM could be joined as a party and, if it could not, instructed the case be dismissed. Id. ¶ 43, 408 P.3d at 405.

[¶2] A petition for rehearing was filed alleging the private oil and gas lease (Thornburg lease) was not appealed or decided in Berenergy I . The Thornburg lease-like Berenergy's federal oil and gas leases-overlaps Peabody's federal coal lease. We declined to amend our opinion, finding that issues related to the Thornburg lease were not appealed. In doing so, we did not limit the district court's authority to consider the Thornburg lease issues on remand if it found it appropriate to do so.

[¶3] On remand, the district court held that it did not have subject matter jurisdiction "as to the lands underlying the Thornburg lease absent the presence of the BLM ... [and was] limited to construing the leases affecting the lands underlying the Thornburg lease." The district court applied the "law of the case" in deciding that a form of the accommodation doctrine governs to resolve the parties' dispute on the overlapping minerals. It declined to rule on what accommodation would be required because of its finding on jurisdiction. Both parties appeal. We reverse, in part, and affirm, in part.

ISSUES

[¶4] We address the following issues:

I. Is the BLM's participation necessary to resolve the Thornburg lease dispute?
II. Does law of the case doctrine require the district court to apply its original judgment of accommodation?

FACTS

[¶5] Most of the facts underlying this case are set forth in Berenergy I , ¶¶ 5-12, 408 P.3d at 397-99 and, except for those pertinent to this appeal, are not reiterated here.

[¶6] Berenergy and Peabody develop minerals in Wyoming's Powder River Basin. Berenergy produces oil from both federal and private oil and gas leases. The private lease known as the Thornburg lease is the subject of this appeal. Peabody mines coal pursuant to its separate federal leases. It plans to extract coal by strip mining areas subject to Berenergy's oil and gas leases, including the Thornburg lease. Peabody's process requires removing top soil, blasting, and excavating the subsurface. Peabody cannot blast within 500 feet of an engineered structure, including an oil well. The parties cannot simultaneously conduct their operations. See Berenergy I , ¶ 12, 408 P.3d at 398.

Original Proceedings in District Court

[¶7] Berenergy filed its lawsuit seeking a declaration of the parties' relative rights to develop the minerals subject to their leases. The district court granted in part and denied in part the parties' cross-motions for summary judgment concerning questions of which legal principles should govern their conflict. The district court held the dispute would be resolved under the accommodation doctrine and that its ruling on the relative rights of the parties under their conflicting federal mineral leases would apply equally to the Thornburg lease. A bench trial followed. After trial, the district court ruled on a number of issues. Those decisions relevant to this appeal are: (1) Berenergy must, at appropriate times, cease production and cap its wells below the projected coal seam allowing Peabody to mine through these areas; (2) Peabody must compensate Berenergy for losses in production on a per well basis; and (3) Peabody must escrow monies to cover Berenergy's costs for waterflood production of its oil leases using an off-site well.

Berenergy I

[¶8] In Berenergy I , we considered cross-appeals of the district court's ruling regarding the federal leases. Berenergy I , ¶ 14, 408 P.3d at 399. We concluded that we could not reach the substance of those appeals because the BLM was a necessary party to be joined under Rule 19 of the Wyoming Rules of Civil Procedure. Id. ¶¶ 37-43, 408 P.3d at 403-05. We remanded the case "for an evaluation of whether a federal agency may participate in this suit" and directed the district court to dismiss the case if the BLM could not be joined. Id. ¶ 43, 408 P.3d at 405.

Petition for Rehearing Berenergy I

[¶9] Peabody petitioned for rehearing of Berenergy I arguing that Berenergy had not appealed the district court's decision regarding the private Thornburg lease and, as a result, that portion of the case should not be subject to the dismissal requirements of Berenergy I . In response, Berenergy asserted that the Thornburg lease was appealed and the entire case-including the Thornburg issue-should be dismissed. In our order on rehearing, we held that "the issues related to the Thornburg lease were not presented to the Court" on appeal and said: "Given the circumstances, this Court finds it inappropriate to amend [ Berenergy I ] to address issues related to the Thornburg lease. In so ruling, this Court does not limit the district court's authority to consider the Thornburg lease issues, if the district court finds such consideration appropriate."

District Court's Decision on Remand

[¶10] On remand, the district court held, "This Court further concludes that it lacks subject matter jurisdiction to grant the relief previously granted to Peabody as to the lands underlying the Thornburg lease absent the presence of the BLM. Instead, the Court is limited to construing the leases...." The district court then found that the law of the case applied, meaning its earlier decision (that the accommodation doctrine controlled the order and operation of development with respect to the Thornburg lease) had not been appealed and the decision remained in effect. The district court did not decide what a suitable accommodation would be, concluding instead that the decision on what constitutes a suitable accommodation rested with the BLM.

Current Appeal

[¶11] Peabody contends that the district court: (1) can fully resolve the Thornburg lease dispute without the BLM's participation; and (2) the district court should not have reopened the final judgment on the Thornburg lease dispute. In the alternative, Peabody contends, if the Thornburg lease dispute is reopened, the district court should enforce Peabody's right to mine through the Thornburg lease pursuant to the Coal Lands Act, 30 U.S.C. §§ 83 - 85, as opposed to the accommodation doctrine. Berenergy argues that the district court correctly held: (1) that our decision in Berenergy I deprived it of subject matter jurisdiction to determine suitable accommodation between Peabody and Berenergy; and (2) Peabody waived any right to rely on the Coal Lands Act when it failed to appeal this issue in Berenergy I .

DISCUSSION

I. Is the BLM's participation necessary to resolve the Thornburg lease dispute?

[¶12] On appeal, Peabody contends that the district court incorrectly concluded that it could not fully resolve the Thornburg lease dispute without the BLM. Berenergy concedes that its original position was that the district court had jurisdiction over its claims for declaratory judgment but now argues that our decision in Berenergy I mandates the conclusion that the district court lacks jurisdiction over the Thornburg lease dispute, despite its belief "that the jurisdictional ruling in Berenergy I is inconsistent with prior decisions on that issue."

[¶13] The district court conflated subject matter jurisdiction with W.R.C.P. Rule 19, reading our direction in Berenergy I to dismiss the case if the BLM could not be joined as a jurisdictional mandate. To the contrary, Berenergy I did not question the existence of subject matter jurisdiction. Our decision in Berenergy I concerned joinder of an indispensable party, a non-jurisdictional question. It held that there was no decision this Court could make on the issues appealed that would have binding effect without the BLM's participation. Berenergy I , ¶¶ 38-41, 408 P.3d at 403-04. Our precedent makes clear that Wyoming courts have jurisdiction over mineral disputes between private parties, even where federal leases may be concerned, and the parties offer no authority to the contrary. Belle Fourche Pipeline Co. v. State , 766 P.2d 537 (Wyo. 1988) ; Reno Livestock Corp. v. Sun Oil Co. , 638 P.2d 147 (Wyo. 1981) ; Ready v. Texaco, Inc. , 410 P.2d 983 (Wyo. 1966) ; Holbrook v. Continental Oil Co. , 73 Wyo. 321, 278 P.2d 798 (1955) ; Richardson v. Midwest Refining Co. , 39 Wyo. 58, 270 P. 154 (1928). The question in this case is not whether the district court had subject matter jurisdiction over the Thornburg lease dispute, rather it is whether the court could fully resolve that dispute without the BLM's participation.

STANDARD OF REVIEW

[¶14] In Grove v. Pfister , we said:

District court rulings on joinder are reviewed for an abuse of discretion. Rivermeadows, Inc. v. Zwaanshoek Holding and Financiering, B.V. , 761 P.2d 662, 668-70 (Wyo. 1988) ; England v. Simmons , 728 P.2d 1137, 1139-40 (Wyo. 1986).
[T]he core of our inquiry must reach "the question of reasonableness of the choice made by the trial court." Vaughn v. State , 962 P.2d 149, 151 (Wyo. 1998). "Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously." Id. (quoting Byerly v. Madsen , 41 Wash. App. 495, 704 P.2d 1236, 1238 (Wash. App. 1985) ); Basolo v. Basolo , 907 P.2d 348, 353 (Wyo. 1995).

Grove v. Pfister , 2005 WY 51, ¶ 4, 110 P.3d 275, 277 (Wyo. 2005). To the extent the district court's decision was based on a legal conclusion, we review that portion of the issue de novo. See Jensen v. Milatzo-Jensen , 2013 WY 27, ¶ 18, 297 P.3d 768, 774 (Wyo. 2013) (the application of a statute is a question of law reviewed de novo); Weinstein v. Beach , 2014 WY 167, ¶ 9, 340 P.3d 1013, 1016 (Wyo. 2014) (while award of costs is reviewed for abuse of discretion, the legal question of whether cost provisions apply is reviewed de novo). We review the district court's Rule 19 findings for an abuse of discretion, and we review conclusions of law underlying those findings de novo.

ANALYSIS

[¶15] Rule 19 of the Wyoming Rules of Civil Procedure provides:

(a) Persons to be joined if feasible.- A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if: (1) in the person's absence complete relief cannot be accorded among those already parties; or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect that interest; or (ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations by reason of the claimed interest. If the person has not been so joined, the court shall order that the person be made a party....
(b) Determination by court whenever joinder not feasible. -If a person as described in subdivisions (a)(1) and (a)(2) hereof cannot be made a party, the court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. The factors to be considered by the court include:
(1) To what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties;
(2) The extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided;
(3) Whether a judgment rendered in the person's absence will be adequate;
(4) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

W.R.C.P. Rule 19 (2014).

[¶16] The district court concluded that it could not fully resolve the Thornburg lease dispute without the BLM; however, the private Thornburg lease presents a different inquiry than the examination of the parties' positions vis-à-vis the federal leases. In Berenergy I , we analyzed leases where there were no independent private rights. All leases were with the BLM. Our analysis included the Mineral Leasing Act and pertinent federal regulations as they related to competing federal leases. Berenergy's federal leases gave the BLM the "discretion, in service of the public interest, to control the quarterly rate of production" and "grant[ed the] authority to manage federal minerals to [the BLM]." Berenergy I , ¶¶ 29-30, 408 P.3d at 402. Peabody's leases provided that "BLM retains the authority to alter and/or modify the resource recovery and protection plans for coal operations and/or oil and gas operations on those lands covered by Federal mineral leases so as to obtain maximum resource recovery." Id. ¶ 33, 408 P.3d at 402-03. Our examination led to our conclusion that the "[b]alancing of competing rights to mineral production in the public's interest is in part an intensely policy-driven matter committed to the [BLM]." Any decision we rendered would have been merely advisory in light of the BLM's authority to disregard it where the BLM was not a party. As such, the BLM was a party that should have been joined. Id. ¶¶ 35, 37-39, 408 P.3d at 403-04. Berenergy I is limited to the question of competing federal leases that place decision-making authority over the operational rights conveyed "squarely and solely in the hands of the Secretary of the Interior and his designees." Id. ¶ 34, 408 P.3d at 403.

[¶17] The Thornburg lease is private, and it contains no language vesting the BLM with discretion over its operational rights vis-à-vis competing federal leases. The analysis in Berenergy I does not apply to this private/federal lease question. The BLM's participation in the Thornburg lease dispute is not required, and a binding decision can be made in its absence. The BLM is not a necessary party under Rule 19 or pursuant to our analysis in Berenergy I .

[¶18] The court in Entek GRB, LLC v. Stull Ranches, LLC , 113 F. Supp. 3d 1113 (D. Colo. 2015), reached a similar conclusion under analogous facts. There, Entek GRB, LLC (Entek), a federal mineral lessee, sued the surface owner, Stull Ranches, LLC (Stull) seeking a declaration that it had the right to use Stull's property to access a well located on the surface of an estate owned by a third party. Id. at 1113, 1115. Stull argued that the BLM was an indispensable party under Rule 19 of the Federal Rules of Civil Procedure to the lawsuit because a decision would "directly affect the scope of the property rights owned by the BLM." Id. at 1119. The court recognized that, while an examination of federal mining statutes was required to determine the scope of Entek's rights, it "does not alter the fact that the relief sought ... directly concerns Entek's rights with respect to [the lease]." Id. The court explained that "[w]ith respect to whether complete relief can be awarded between Entek and Stull, the fact remains that neither party sought relief against the BLM." Id. at 1120. Stull argued that the BLM had an interest in the matter because it "may not agree" with the outcome "which could lead to 'unanticipated consequences' ... or [could] cause the BLM to 'reevaluate the unitization program.' " Id. at 1120-21. The court concluded that Stull's "arguments as to this consideration are unsupported" and recognized that courts have been determining relative rights of federal mineral lessees to other owners or users without the United States as a party since 1928 in Kinney-Coastal Oil Co. v. Kieffer , 277 U.S. 488, 48 S. Ct. 580, 72 L. Ed. 961 (1928). Entek , 113 F. Supp. 3d at 1121 (citing BTU W. Res., Inc. v. Berenergy Corp. , 300 F.R.D. 572, 574 (D. Wyo. 2014) ). Finally, the court found that neither Stull nor Entek would be subjected to a substantial risk of inconsistent obligations because of the relief granted in that case. Entek , 113 F. Supp. 3d at 1121. See also Amerada Petroleum Corp. v. Rio Oil Co. , 225 F. Supp. 907, 910-11 (D. Wyo. 1964) (holding that mineral lessor was not indispensable party to dispute between mineral lessee and other parties claiming title to the minerals); Texas Co. v. Wall , 107 F.2d 45, 50 (7th Cir. 1939) (holding that "when a plaintiff-lessee is seeking merely to enjoin a defendant-lessee from interfering with the plaintiff's leasehold interest, and no relief is sought either for or against the plaintiff's lessor, the decree of the trial court ordinarily can be so framed as not to affect the rights of the plaintiff's lessor").

[¶19] The situation here is similar to the preceding cases. First, the accommodation contemplated by the district court (requiring reimbursement for lost production and the escrow of money to reimburse Berenergy any actual incurred costs under a potential waterflood plan) does not impact the BLM's rights. Second, neither party sought relief against the BLM. Third, the BLM's interest in the outcome of the Thornburg lease dispute is not distinguishable from its interest in the outcome of any other dispute concerning rights of federal mineral lessees and private estate owners. Wyoming courts have a long history of considering these cases in the absence of the BLM. See supra ¶ 13. Finally, like the court in Entek , we see no likelihood that either Berenergy or Peabody would be at risk of inconsistent obligations due to the relief granted by the district court. The BLM is not a person to be joined, if feasible, under Rule 19(a).

[¶20] Even if we assume that the BLM was a person to be joined if feasible, a Rule 19(b) analysis shows the Thornburg lease dispute can be resolved absent BLM's participation. Rule 19(b) instructs the Court to consider four factors in determining whether an action should proceed where a party who is required to be joined, if feasible, cannot be joined:

(1) To what extent a judgment rendered in the person's absence might be prejudicial to the person or those already parties;
(2) The extent to which, by protective provisions in the judgment, by the shaping of relief, or other measures, the prejudice can be lessened or avoided;
(3) Whether a judgment rendered in the person's absence will be adequate;
(4) Whether the plaintiff will have an adequate remedy if the action is dismissed for nonjoinder.

W.R.C.P. Rule 19(b) (2014); See, e.g. , Miller v. Bradley , 4 P.3d 882, 887-88 (Wyo. 2000), abrogated on other grounds by In re Crago , 2007 WY 158, 168 P.3d 845 (Wyo. 2007) ; L.U. Sheep Co. v. Board of County Comm'rs of Hot Springs , 790 P.2d 663, 666-67 (Wyo. 1990).

[¶21] A review of these factors also leads to the conclusion that this case should proceed in the BLM's absence. A judgment rendered in the BLM's absence would not be prejudicial to the existing parties. This conclusion makes the second factor irrelevant. Third, a judgment rendered in the BLM's absence as to the Thornburg lease dispute would be adequate. Fourth, and perhaps most significantly, if the action is dismissed for nonjoinder, no adequate remedy or forum exists to address the Thornburg lease dispute or others like it.

[¶22] The BLM is not a person to be joined if feasible under Rule 19(a). Even if we assume it is a person to be joined if feasible, the BLM is not indispensable under Rule 19(b). W.R.C.P. Rule 19. The district court abused its discretion when it held otherwise. It could properly resolve the parties' dispute regarding the Thornburg lease absent the BLM.

II. Does law of the case doctrine require the district court to apply its original judgment of accommodation?

[¶23] In its cross-appeal, Berenergy argues that the district court erred when it applied the law of the case doctrine to reach its conclusion that the accommodation doctrine controlled the Thornburg lease. Peabody takes the position the Court's decision was correct on the accommodation doctrine, but the Court should have enforced the complete order including the substantive provisions that comprise the accommodation.

STANDARD OF REVIEW

[¶24] The decision whether to apply the law of the case doctrine is discretionary, but once a court applies the doctrine, the actual application is reviewed as a matter of law. Thus, our review requires a two-part analysis. First, we review the decision to apply the doctrine for abuse of discretion. See Lieberman v. Mossbrook , 2009 WY 65, ¶ 28, 208 P.3d 1296, 1305 (Wyo. 2009). Courts may exercise discretion to "entertain relitigation of settled issues when the failure to do so would work 'a manifest injustice.' " Entek GRB, LLC v. Stull Ranches, LLC , 840 F.3d 1239, 1242 (10th Cir. 2016) ; see also 18B Charles A. Wright et al., Federal Practice and Procedure § 4478 (2d ed. 2002). Second, we review de novo whether the prior decision controls the issue raised in the subsequent proceeding. Ultra Resources, Inc. v. Hartman , 2015 WY 40, ¶ 58, 346 P.3d 880, 900 (Wyo. 2015).

ANALYSIS

[¶25] Relitigation of the Thornburg lease dispute is not necessary to avoid a "manifest injustice." See Entek , 840 F.3d at 1242. Both parties have had ample opportunity to set forth their positions throughout extensive litigation and have adequately done so. Accordingly, we find that the district court did not abuse its discretion when it applied the law of the case doctrine.

[¶26] Now, we turn to our de novo review of whether the law of the case doctrine bars further consideration of the decision that the accommodation doctrine applies to the Thornburg lease. "Under the 'law of the case' doctrine, a court's decision on an issue of law made at one stage of a case becomes a binding precedent to be followed in successive stages of the same litigation." Triton Coal Co. v. Husman, Inc. , 846 P.2d 664, 667 (Wyo. 1993) (citing 1B James W. Moore et al., Moore's Federal Practice ¶ 0.404[1] (2d ed. 1983)). The doctrine is "designed to avoid repetitious litigation and to promote consistent decision making." Triton Coal , 846 P.2d at 667. "Without something like it, an adverse judicial decision would become little more than an invitation to take a mulligan, encouraging lawyers and litigants alike to believe that if at first you don't succeed, just try again." Entek , 840 F.3d at 1240. The doctrine, therefore, provides "incentive for parties to put their best effort into their initial submissions," encourages litigants to present all available claims and defenses, and avoids wasting judicial resources. Id. at 1242.

[¶27] Typically, the law of the case doctrine "requires a trial court to adhere to its own prior rulings, adhere to the rulings of an appellate court, or adhere to another judge's rulings in the same ... or a closely related case." Triton Coal , 846 P.2d at 668. The doctrine may also give preclusive effect to a legal decision made at one stage of the litigation that goes unchallenged in a subsequent appeal. Id. ; Entek , 840 F.3d at 1242. In this respect, law of the case is related to waiver because it is the litigant's "failure to raise an issue on appeal which gives rise to the preclusive effect of the lower court's ruling[.]" Triton Coal , 846 P.2d at 667-68. A reversal on appeal "affect[s] only those portions of the judgment from which an appeal is actually taken" and does not affect unappealed issues. Id. at 669. Law of the case and waiver apply to unappealed issues and those issues cannot be relitigated on remand or on a second appeal. Id. at 669.

[¶28] Here, neither Berenergy nor Peabody appealed the district court's ruling as to the Thornburg lease. See supra ¶ 7. Accordingly, at first blush, the law of the case applies to the Thornburg lease dispute. Under that doctrine, the district court's ruling that the accommodation doctrine applies is final. The general rule that an unappealed issue may not be addressed on remand, however, is "tempered by the rule that an appeal from a part of a judgment can be taken only if the appealed portion is severable." Triton Coal , 846 P.2d at 669. "In cases where the appealed judgment is not independent from the remainder, the appeal becomes an appeal from the whole judgment, and, consequently, a reversal will extend to the whole judgment." Id. (citing 5 Am. Jur. 2d Appeal and Error § 953 (1962)).

[¶29] Berenergy argues that the district court's resolution of the Thornburg lease dispute in the original proceeding was so interwoven with its resolution of the federal lease disputes that the Berenergy I appeal was an appeal of the whole judgment. According to Berenergy, our order in Berenergy I -requiring dismissal if the BLM could not be joined-applies to the Thornburg lease.

The test of whether a portion of a judgment appealed from is so interwoven with its other provisions as to preclude an independent examination of the part challenged by the appellant is whether the matters or issues embraced therein are the same as, or interdependent upon, the matters or issues which have not been attacked. [I]n order to be severable, and therefore appealable, any determination of the issues so settled by the judgment ... must not affect the determination of the remaining issues whether such judgment on appeal is reversed or affirmed.

Triton Coal , 846 P.2d at 669 (emphasis added; internal quotation marks and citations omitted).

[¶30] In Triton Coal , Husman contracted with mine owner Triton Coal Co. (Triton) to remove dry overburden and topsoil for coal mining. Id. at 666. Husman sued Triton for breach of contract, breach of the implied covenant of good faith and fair dealing, fraud, and negligent misrepresentation when it determined that the soil was saturated with water. Id. at 667. The district court granted summary judgment in favor of Triton on all counts and Husman appealed. On appeal, Husman did not challenge the summary judgment on its claim that the final survey of material removed was inaccurate and that Triton failed to pay for the material removed (Count II). Id. at 667. This Court reversed and remanded. See Husman, Inc. v. Triton Coal Co. , 809 P.2d 796 (Wyo. 1991). Thereafter, the jury granted breach of contract damages on a special verdict form which allowed the consideration of Count II. Triton appealed, arguing that Count II should not have been submitted to the jury due to application of the law of the case doctrine. TritonCoal , 846 P.2d at 667. Triton contended that because Husman did not appeal the summary judgment as to Count II, the lower court's judgment was law of the case and was not an issue for trial. Id. We applied the severability test to determine whether issues raised in the first appeal were interwoven with Count II, the breach of contract issue that was not appealed. Id. at 670. We concluded that they were not. Id. Thus, we held that the district court's grant of summary judgment with respect to Count II was law of the case and the district court could not retry the issue on remand. Id.

[¶31] Here, despite our Order on Petitions for Rehearing that the Thornburg and federal leases are severable, Berenergy contends that the Thornburg lease dispute is not severable from the federal lease dispute because "the district court expressly held that its ruling concerning the Thornburg lease was based on the 'same rules' it determined to be applicable to the federal lease disputes." We are not persuaded. The fact that the district court applied the accommodation doctrine to all the leases, both federal and private, does not necessarily mean that the private lease dispute was "interwoven" with the federal disputes. The Triton Coal test for severability requires us to determine "whether the matters or issues embraced" in the first appeal "are the same as, or interdependent upon, the matters or issues" which were not appealed. Id. at 669. An appeal is severable if "the part whereby the appellant is aggrieved is so far distinct and independent that it may be adjudicated on appeal without bringing up for review the entire order or judgment." Id.

[¶32] We find that the federal leases and the private Thornburg lease presented distinct issues that were severable. A thorough review of the record reveals that the bulk of the pleadings, arguments, and trial focused on the federal leases. The Thornburg lease may have been somewhat of an afterthought for all involved. The Thornburg lease was, however, separately argued by the parties and separately addressed by the district court. It presented a separate issue. For example, in its amended complaint, Berenergy separately identified its leases and sought a declaration that each lease had priority either because the lease was first in time or because (as was the argument for the Thornburg lease), while not first in time, Peabody could not unreasonably interfere with them. Again, in its motion for partial summary judgment, Berenergy argued that although the Thornburg lease was not first in time, Peabody could not unreasonably interfere with that lease. Berenergy asserted a different argument regarding the first in time federal leases. Likewise, in its pleadings, Peabody addressed the federal leases and the Thornburg lease separately. In its argument regarding the Thornburg lease, Peabody argued that the Coal Lands Act, 30 U.S.C. §§ 83 - 85, applied because the Thornburg lease was "[u]nlike the federal leases" that govern the other wells. In its response to Peabody, Berenergy also separately addressed the Thornburg lease, but lumped it with the federal leases, arguing that for the reasons already specified in its motions, it should prevail.

[¶33] In its order on the parties' motions for summary judgment, the district court also addressed the Thornburg lease separately. It recognized that the original patent from the United States to Jack Thornburg conveyed an express right to extract oil and gas and that "[t]he patent reserved unto the United States all of the coal, which includes the rights necessary to develop the coal as implied under the reasoning in Chartiers [Block Coal Co. v. Mellon , 152 Pa. 286, 25 A. 597 (1893) ]." The district court separately recognized the federal leases stating that they "must be construed as being consistent with the purposes of the MLA [Mineral Leasing Act, 30 U.S.C. §§ 181, et seq. ]." The district court ultimately held that both parties must accommodate one another. This ruling implicitly rejected Peabody's argument for the application of the Coal Lands Act to the Thornburg lease. The district court then held a trial to determine reasonable accommodations and damages. The district court awarded separate damages with respect to the Thornburg lease.

[¶34] Indeed, the parties' appeals in Berenergy I provide compelling evidence of the severability of the federal and Thornburg lease issues. Berenergy appealed only the federal lease issues. Peabody appealed only the portion of the district court's order requiring it to escrow money in the event Berenergy engaged in a water flood recovery operation. See Berenergy I , ¶ 4, 408 P.3d at 399. As we have previously stated, "the issues related to the Thornburg lease were not presented to the Court" in Berenergy I . We have also said our holding in Berenergy I "does not limit the district court's authority to consider the Thornburg lease issues, if the district court finds such consideration appropriate."

[¶35] The Thornburg lease issue was severable from the federal lease issues. Our ruling in Berenergy I applies only to the federal leases. Relitigation of the Thornburg lease dispute is not necessary to avoid a "manifest injustice." See Entek , 840 F.3d at 1242. Both parties have had ample opportunity to set forth their relative positions throughout extensive litigation and have adequately done so. Accordingly, we find that the district court did not abuse its discretion when it applied the law of the case doctrine. The district court's ruling that the accommodation doctrine applies to the Thornburg lease is correct.

CONCLUSION

[¶36] The BLM is not an indispensable party to the Thornburg lease dispute, and the district court may fully resolve that dispute without its participation. Further, the district court was correct when it concluded that law of the case principles apply-the accommodation doctrine governs the parties' rights. We remand for proceedings consistent with this opinion.

      The projected cost of this process was $13.1 million, and the district court ordered this amount to be escrowed. The release of money would be subject to Berenergy obtaining permission for the project from the Wyoming Oil and Gas Conservation Commission (WOGCC) and limited to reimbursement of actual expense to implement the process. Following our decision in Berenergy I , the BLM ordered Peabody to deposit this sum into an escrow account to reimburse Berenergy for costs the project might entail if the Wyoming State Office of the Bureau of Land Management designates a secondary recovery unit in the area covering the leases and the WOGCC approves the project.

      Rule 19 has been amended since this lawsuit was filed in 2014. The amendment was effective March 1, 2017, and contained very few substantive changes. Compare W.R.C.P. Rule 19 (2014) with W.R.C.P. Rule 19 (2017). We apply the rule in effect at the time the lawsuit was filed. See DNW v. Wyoming Dep't of Family Services , 2007 WY 54, ¶ 9, 154 P.3d 990, 992 (Wyo. 2007) ; McKennan v. Wyoming Sawmills, Inc. , 816 P.2d 1303, 1303 n.1 (Wyo. 1991).

      As noted, the district court directed Peabody to deposit approximately $13.1 million in an escrow fund as part of its ordered accommodation. Although Peabody appealed that direction in Berenergy I , it did not do so in this appeal. In any event, the BLM has rendered a decision with respect to the disputed federal leases ordering this same accommodation.

      The United States District Court for the District of Wyoming has ruled that federal question jurisdiction does not automatically exist merely because federal mineral leases are at issue. BTU W. Res., Inc. v. Berenergy Corp. , 31 F. Supp. 3d 1346 (D. Wyo. 2014).

      Although Berenergy argues that the law of the case does not apply, it does not contend that the question of whether the accommodation doctrine applies to the Thornburg lease should be relitigated. Berenergy claims that since the federal and Thornburg lease issues are not severable, the Thornburg lease dispute must be dismissed by the district court along with the federal lease dispute under Berenergy I .

      Peabody argues in the alternative that if the judgment is reopened, the Coal Lands Act should be applied.

      Those issues were Husman's claims for breach of the implied covenant of good faith and fair dealing, fraud, and negligent misrepresentation. Id. at 670.


source: Caselaw Access Project

author: BOOMGAARDEN, Justice.

license: Public Domain

text:
    David NORRIS and Lisa Norris, husband and wife, Appellants (Plaintiffs), v. Shelly BESEL, Appellee (Defendant).
    S-18-0254
    Supreme Court of Wyoming.
    May 30, 2019
    Representing Appellant: James L. Edwards, Stevens, Edwards, Hallock & Carpenter, P.C., Gillette, Wyoming. Argument by Mr. Edwards.
    Representing Appellee: Randall T. Cox, The RT Cox Law Firm; Alex Berger, Berger & Brown, Attorneys, Gillette, Wyoming. Argument by Mr. Berger.
    Before DAVIS, C.J., and FOX, KAUTZ, BOOMGAARDEN, and GRAY, JJ.
   BOOMGAARDEN, Justice.

[¶1] Appellants, David and Lisa Norris, hired Leonard Besel, d/b/a Leonard's Home Improvement, to remodel their home. Mr. Besel terminated the contract prior to completing the project and Mr. and Mrs. Norris filed suit. The Norrises named Mr. Besel's wife, Shelly Besel, as a defendant, alleging she was a partner of her husband's contracting business. Mrs. Besel denied any ownership interest and moved for summary judgment. The district court granted the motion and dismissed Mrs. Besel from the litigation with prejudice. We affirm.

ISSUES

[¶2] The Norrises state their issue on appeal as:

Whether the decision of the district court granting summary judgment in favor of Shelly Besel was correct?
A. Does a material issue of fact exist based on the evidence presented as to Shelly Besel's status vis a vis the business?
B. Was Shelly Besel entitled to judgment as a matter of law?

FACTS

[¶3] Mrs. Norris posted an inquiry on the Gillette Area Classifieds Facebook page seeking potential contractors to remodel a home in Pine Haven, Wyoming. Mrs. Besel responded to the inquiry on January 13, 2016, and stated:

My husband has been in business for over 20 years and has vast experience in painting[,] drywall[,] flooring[,] roofing[,] window installation[,] and much more. His business is Leonard[']s Home Improvement[.] [H]e is insured and bonded[.]

She also provided her husband's telephone number. The Norrises contacted Mr. Besel directly, and, on March 18, 2016, the Norrises, as homeowners, and Mr. Besel, as the owner of Leonard's Home Improvement, executed a written contract setting forth the terms of the remodel project.

[¶4] Several months later, Mrs. Norris sent Facebook messages to Mrs. Besel when Mr. Besel did not return the Norrises' phone calls or respond to their text messages. Each time, Mrs. Besel indicated she would pass along the message to her husband or stated she would have him call them. Mr. Besel terminated the contract in late August.

[¶5] Mr. and Mrs. Norris filed a complaint asserting claims for breach of contract and breach of warranty. The complaint named Mr. and Mrs. Besel, d/b/a Leonard's Home Improvement, as defendants. Mrs. Besel moved to dismiss herself from the lawsuit and filed an affidavit of non-involvement. The district court denied the motion. After the parties conducted discovery, Mrs. Besel moved for summary judgment, disavowing any partnership interest in Leonard's Home Improvement. The district court granted her motion following a hearing.

[¶6] Mr. Besel filed a bankruptcy petition, thus causing the district court to stay the remainder of the court proceedings. Mrs. Besel did not seek bankruptcy protection and, on the Norrises' request, the district court entered a final judgment dismissing Mrs. Besel from the litigation to allow an immediate appeal.

STANDARD OF REVIEW

[¶7] Our review of an order granting summary judgment is de novo. James v. Taco John's Int'l, Inc. , 2018 WY 96, ¶ 7, 425 P.3d 572, 576 (Wyo. 2018) (citation omitted). "Summary judgment is appropriate when there are no genuine issues as to any material fact and the moving party is entitled to judgment as a matter of law." Id. (citation omitted); see also W.R.C.P. 56(a). "A material fact is one which, if proved, would have the effect of establishing or refuting an essential element of the cause of action or defense asserted by the parties." James , ¶ 8, 425 P.3d at 577 (citation omitted). "We review a summary judgment in the same light as the district court, using the same materials and following the same standards," and "examine 'the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn' therefrom." Id. ¶ 7, 425 P.3d at 576 (citations omitted).

[¶8] "The party requesting summary judgment bears the initial burden of establishing a prima facie case that no genuine issue of material fact exists, and that summary judgment should be granted as a matter of law." Id. ¶ 8, 425 P.3d at 576-77 (quoting Bogdanski v. Budzik , 2018 WY 7, ¶ 18, 408 P.3d 1156, 1160 (Wyo. 2018) ). Thereafter, the opposing party must provide "competent evidence admissible at trial showing there are genuine issues of material fact." Id. ¶ 8, 425 P.3d at 577 (quoting Jones v. Schabron , 2005 WY 65, ¶ 10, 113 P.3d 34, 37 (Wyo. 2005) ). The opposing party "must present specific facts; relying on conclusory statements or mere opinion will not satisfy that burden, nor will relying solely upon allegations and pleadings." Id. (quoting Bogdanski , ¶ 18, 408 P.3d at 1161 ).

[¶9] The question of whether a partnership exists typically is one of fact, the answer of which is left to the fact finder. Murphy v. Stevens , 645 P.2d 82, 85 (Wyo. 1982) ; 59A Am. Jur. 2d Partnership § 201, (database updated Feb. 2019) ; P & M Cattle Co. v. Holler , 559 P.2d 1019, 1022 (Wyo. 1977) (citation omitted). Indeed, whether a partnership exists between spouses depends on the particular facts of each case and "[t]here is no single or conclusive test for a partnership that will suffice in every situation[.]" 41 C.J.S. Husband and Wife § 190, (database update Mar. 2019) (citations omitted). Summary judgment is appropriately granted, however, when a plaintiff is unable to provide any evidence on an essential element of partnership formation. See, e.g. , Popejoy v. Steinle , 820 P.2d 545, 552 (Wyo. 1991) (explaining that "[w]hile the question is generally left to the fact finder to determine existence of a joint venture," summary judgment is nonetheless proper if a plaintiff is unable to show any evidence of a necessary element of the cause of action); O'Donnell v. City of Casper , 696 P.2d 1278, 1281 (Wyo. 1985) ("Summary judgment is proper only when it is clear that no issue of material fact is involved and inquiry into the facts is not desirable to clarify application of law.").

DISCUSSION

[¶10] In support of her summary judgment motion, Mrs. Besel claimed that she is not a partner or co-owner of her husband's business. She alleged that no evidence existed that she and her husband agreed to form a partnership or share in the profits, and that filing a joint tax return is not sufficient to establish a partnership between spouses. She claimed the evidence instead established she only assisted her husband with certain tasks as his wife and that she did not have any control in the management of her husband's business.

[¶11] In opposition to Mrs. Besel's summary judgment motion, the Norrises argued that Leonard's Home Improvement was a two-person operation wherein Mr. Besel performed the labor for the company and Mrs. Besel handled administrative matters. The Norrises presented the following facts as evidence of Mrs. Besel's partnership interest:

• Mrs. Besel created a Facebook page for Leonard's Home Improvement;
• The Facebook page belongs to Mrs. Besel and she uses her password to access it;
• Mrs. Besel posts pictures of her husband's work to the Facebook page and she is "tagged" or alerted when a customer makes an inquiry about the business;
• Mrs. Besel responds to inquiries about the business on Facebook and forwards information on customers to her husband;
• Mrs. Besel referred to the Facebook page as "ours";
• Mrs. Besel responded to Mrs. Norris' Facebook inquiry;
• Mrs. Besel provided Mrs. Norris with pictures of her husband's work and represented he had vast experience;
• After Mr. Besel started the Norrises' project, Mrs. Besel responded to inquiries from the Norrises when Mr. Besel did not return their calls or text messages;
• Mrs. Besel sometimes types up bids and invoices for the business because Mr. Besel's computer skills are minimal; and • Mr. and Mrs. Besel filed joint tax returns.

[¶12] On appeal, the Norrises contend that the district court improvidently granted summary judgment because genuine issues of material fact exist as to whether Mrs. Besel is a partner or purported partner of Leonard's Home Improvement. Mrs. Besel argues that the facts the Norrises rely on are insufficient to establish a partnership or purported partnership as a matter of law.

Partnership

[¶13] The Wyoming Uniform Partnership Act provides that "the association of two (2) or more persons to carry on as co-owners of a business for profit creates a partnership, whether or not the persons intend to create a partnership." Wyo. Stat. Ann. § 17-21-202(a) (LexisNexis 2017). "The basic elements of a partnership or a joint venture are that the parties agree to share in some way the profits and losses of the business venture." Redland v. Redland , 2012 WY 148, ¶ 177, 288 P.3d 1173, 1213 (Wyo. 2012) (quoting Edler v. Rogers , 817 P.2d 886, 888 (Wyo. 1991) ). The parties must intend to create a business relationship. P & M Cattle Co. , 559 P.2d at 1022 (citation omitted). "The intent that is determinative is the intent to do things that constitute a partnership." Redland , ¶ 177, 288 P.3d at 1213 (citations omitted); see also Ziegler v. Dahl , ¶ 14, 691 N.W.2d 271, 275 (N.D. 2005) (explaining that the focus is not on an individual's subjective intent to be "partners," but rather "on whether the individuals intended to jointly carry on a business for profit").

[¶14] Allegations of a partnership between husband and wife must be clearly proved. Dimick v. Hopkinson , 2018 WY 82, ¶ 33, 422 P.3d 512, 523 (Wyo. 2018) (quoting 59A Am. Jur. 2d Partnership § 201 (May 2018 update) (citing cases)); In re Roche , 582 B.R. 632, 637-38, n.23 (Bankr. W.D. Pa. 2018) ; see also In re Lampe , 331 F.3d 750, 757 (10th Cir. 2003) (citation omitted) (explaining that the usual indicia of a partnership are blurred by the marital relationship because "[t]he co-owning of property, sharing of profits, and the apparent authority for one spouse to act on behalf of the other are all common to the marital relationship even absent a business"). "On conflicting evidence, the question of whether a partnership exists is one for the trier of fact." Murphy , 645 P.2d at 85. Here, however, the material evidence is not disputed. Viewing the facts in the light most favorable to the Norrises, and drawing all reasonable inferences therefrom, for the reasons presented below there simply is no evidence that Mr. and Mrs. Besel intended to form a business partnership.

[¶15] One essential element of a partnership is an intent to share profits. Redland , ¶ 177, 288 P.3d at 1213 (explaining that a basic element of a partnership is an agreement to share the profits and losses of the business); Uniform Partnership Act § 202, cmt. subsection (a) (1997) (last amended 2013). The undisputed evidence is that Mr. Besel maintained separate bank accounts for the business and used the business income to pay his share of the household expenses. The Besels also filed joint tax returns, wherein Schedule C identifies Leonard's Home Improvement as a sole proprietorship belonging to Mr. Besel. No partnership tax return was ever filed.

[¶16] The Norrises nevertheless rely on the Besels' joint tax return as evidence that the Besels equally shared the business profits. This reliance is misplaced. The filing of a joint tax return, without more, is insufficient to establish a business relationship. See Wyo. Stat. Ann. § 17-21-202(c)(ii) ("The sharing of gross returns does not by itself establish a partnership");

59A Am. Jur. 2d Partnership § 149, (database updated Feb. 2019) (explaining that there must be an agreement or a right to share in the business profits); Barton v. Barton , 996 P.2d 1, 4 (Wyo. 2000) (upholding the district court's finding that no partnership existed where the evidence failed to show "that the parties treated their rental ventures as a partnership for income tax or accounting purposes," inter alia ).

[¶17] In order to establish a business relationship, there must be some evidence of an agreement to divide profits. Spence v. Tatum , 960 F.2d 65, 68 (8th Cir. 1992) (explaining that sharing gross returns or profits as a family is not evidence of a business partnership; rather, a business partnership requires a division of profits); see also Paollela v. Paollela , 42 Conn.Supp. 184, 612 A.2d 145, 146 (1991) (finding that the restaurant business was not a partnership even though the parties filed joint tax returns because the wife filed business schedules as a sole proprietor, inter alia , and the sharing of business income was attributable to the husband-wife relationship); Cooper v. Spencer , 218 Va. 541, 238 S.E.2d 805, 806-07 (1977) (explaining that no partnership existed because, inter alia , the plaintiff failed to show parties divided profits even though they filed joint income tax returns reflecting income from all sources and used the business income for business and family living expenses); South Sioux City Star v. Edwards , 218 Neb. 487, 357 N.W.2d 178, 180 (1984) (explaining that the sharing of profits within a family is not sufficient evidence of a partnership where the wife did not have a "direct right to a certain percentage of the store's profits"). The Norrises provided no evidence of an agreement that Mr. and Mrs. Besel would divide any profits from Leonard's Home Improvement or that Mrs. Besel had a direct right to any percentage of the profits. Thus, the Norrises failed to establish any disputed issue of material fact on this basic element of partnership formation. Redland , ¶ 177, 288 P.3d at 1213 (citation omitted).

[¶18] Furthermore, a business partnership does not exist simply because the parties are married. 41 C.J.S. Husband and Wife § 190, (database updated Mar. 2019) ; Dimick , ¶ 33, 422 P.3d at 523 (quoting 59A Am. Jur. 2d Partnership § 201 (May 2018 update) ) (citing cases) (explaining that "[t]he marital relation between husband and wife does not by itself give rise to a partnership affecting their mutual rights and obligations or their relationship to third persons"). Rather, a "community of interest" must be established. 59A Am. Jur. 2d Partnership §§ 131, 140, 144, (database updated Feb. 2019) (explaining that another essential element of partnership is community of interest).

[¶19] A "community of interest" entails co-ownership of management and control of the business entity:

[The community of interest] must be sufficient to enable each member to make contracts, manage the business, and dispose of the property as to third persons. In other words, partners as co-owners of a business necessarily must have the joint power to control it as an indispensable component of co-ownership.

59A Am. Jur. 2d Partnership § 144, (database updated Feb. 2019) (citations omitted); see also Uniform Partnership Act § 202, cmt. subsection (a) (1997) (last amended 2013) (explaining that co-ownership remains a key concept and requires the partners to collectively have the power of ultimate control); Ziegler , ¶ 21, 691 N.W.2d at 277 (citing Gangl v. Gangl , 281 N.W.2d 574, 580 (N.D. 1979) ) ("Control is an indispensable component of the co-ownership analysis."). The mere fact that a wife participates in a business with her husband does not establish a partnership. 41 C.J.S. Husband and Wife § 190, (database updated Mar. 2019) ; 59A Am. Jur. 2d Partnership §§ 143, 201, (database updated Feb. 2019). The evidence must support some other indicia of partnership wherein the intent to form a partnership, including shared control, is clearly proved. 41 C.J.S. Husband and Wife § 190, (database updated Mar. 2019) ; 59A Am. Jur. 2d Partnership §§ 143, 201, (database updated Feb. 2019) ; see also Brotherton v. Kissinger , 550 S.W.2d 904, 907 (Mo. App. 1977) (setting forth the general principle that "merely 'helping out' in a business is not sufficient proof of a partnership"); Klaber v. Klaber , 133 So.2d 98, 99-100 (Fla. Dist. Ct. App. 1961) (finding no joint venture where the wife actively and substantially assisted the husband in the operation of a general merchandise store); Valley Sav. Bank v. Staves , 224 Iowa 1197, 278 N.W. 346, 346-47 (1938) (no joint venture where husband attended to all details incidental to realizing incomes from wife's inherited properties, including the making of leases, fixing their terms, collecting rent, and paying taxes); Carlson v. Brabham , 199 So.3d 735, 742-43 (Miss. Ct. App. 2016), reh'g denied (June 21, 2016), cert. denied , 203 So.3d 597 (Miss. 2016) (wife who did all the bookkeeping and finances for husband's business, and hired her friend as an employee, was not a coventurer); In re Lampe , 331 F.3d at 757 (finding that the trustee failed to meet its burden of proving a partnership where there was no evidence of an indicia of a partnership beyond those incident to the marital relationship).

[¶20] Mrs. Besel does not dispute that she participated in her husband's business by advertising Leonard's Home Improvement on Facebook, providing her husband's contact information on inquiries from potential customers, passing along messages from customers to her husband, and typing documents for the business, such as invoices or bids, as needed and directed by her husband. However, none of these tasks evidence the type of co-ownership or control of the business that is essential to partnership formation. 59A Am. Jur. 2d Partnership §§ 131, 140, 144, (database updated Feb. 2019) (citations omitted). Nothing in the record suggests that Mrs. Besel had any power to make contracts, manage the business, or dispose of business property as to third persons. 59A Am. Jur. 2d Partnership § 144, (database updated Feb. 2019) (citations omitted). Because the Norrises presented no evidence to suggest that Mrs. Besel had joint power to control Leonard's Home Improvement, no disputed issue of fact exists as to the community of interest necessary for partnership formation.

Purported Partnership

[¶21] Even in the absence of intent and community of interest, Wyoming law provides that

[i]f a person, by words or conduct, purports to be a partner or consents to being represented by another as a partner, in a partnership or with one (1) or more persons not partners, the purported partner is liable to a person to whom the representation is made:
(i) If that person, relying on the representation, enters into a transaction with the actual or purported partnership; and
(ii) If the purported partner would have been personally liable for obligations of the partnership under W.S. 17-21-306 if he actually had been a partner.

Wyo. Stat. Ann. § 17-21-308(a) (LexisNexis 2017). The Norrises contend that Mrs. Besel purported to be a business partner of Leonard's Home Improvement by way of her Facebook communications with them. They further assert that they only hired Mr. Besel because of Mrs. Besel's representations about her husband's work.

[¶22] The evidence of record belies the Norrises' assertion that Mrs. Besel purported to be Mr. Besel's business partner. In response to Mrs. Norris' initial inquiry on Facebook, Mrs. Besel explained that her husband had over 20 years of experience in contracting work, that his business is Leonard's Home Improvement, and that he is insured and bonded. Thereafter, the Norrises contacted Mr. Besel directly and negotiated the terms of their written contract, which Mr. Besel signed as the owner of Leonard's Home Improvement. Mrs. Besel's name does not appear anywhere on the contract. The Norrises failed to provide any evidence that Mrs. Besel, by her words or conduct, made any representations to the contrary. Under these circumstances, the Norrises, as a matter of law, could not have reasonably relied on any purported partnership between Mrs. Besel and her husband's business. See, e.g. , In re Cay Clubs , 130 Nev. 920, 340 P.3d 563, 571-72 (2014) (extending equitable estoppel principles to require reasonable reliance to impose liability for a purported partnership); Lavoie v. Safecare Health Serv., Inc. , 840 P.2d 239, 251 (Wyo. 1992) (finding appellant's reliance on representations from a bank board member about a loan was unreasonable as a matter of law).

CONCLUSION

[¶23] Wholly lacking in this case is any competent evidence to establish a genuine issue of material fact whether the Besels agreed to share in the profits of Leonard's Home Improvement or in the management or control of the business-both of which are essential to establish partnership formation. There also is no genuine issue of material fact whether Mrs. Besel held herself out to the Norrises as a purported partner of her husband's contracting business. The record on summary judgment supports the district court's ruling dismissing Mrs. Besel from the litigation.

[¶24] Affirmed.

      Mr. and Mrs. Norris also moved for summary judgment, but the district court denied their motion.

      Mrs. Besel supported her summary judgment motion with an affidavit of non-involvement, stating in part:
      I do not keep books and records, I do not set appointments, I do not keep track of paperwork, I do not go to job sites, I do not make any purchases, I do not supervise any employees or subcontractors, and I do not schedule appointments for Leonard's Home Improvement.
      Mrs. Besel also relied on deposition testimony evidencing, among other things, that she is not on the business bank account or on any other account in relation to the business; that she and Mr. Besel maintain separate bank accounts; and that the only business phone for Leonard's Home Improvement is Mr. Besel's cell phone.

      The comments to the Uniform Partnership Act explain that the phrase "whether or not the persons intend to form a partnership,"
      merely codifies the universal judicial construction of UPA (1914) § 6(1) that a partnership is created by the association of persons whose intent is to carry on as co-owners a business for profit, regardless of their subjective intention to be 'partners.' Indeed, they may inadvertently create a partnership despite their expressed subjective intention not to do so. The language of Section 202 alerts readers to this possibility.
      Uniform Partnership Act § 202, cmt. (1997) (last amended 2013).


author: CATTANI, Judge: SWANN, Judge, specially concurring:

text:
    STATE of Arizona, Appellee, v. Elena Christina TAGGE, Appellant.
    State of Arizona, Appellee, v. Matthew Carl Tagge, Appellant.
    No. 1 CA-CR 16-0759 1 CA-CR 16-0785
    Court of Appeals of Arizona, Division 1.
    FILED May 9, 2019
   CATTANI, Judge:

¶1 Matthew and Elena Tagge appeal their convictions for illegal possession or use of marijuana and drug paraphernalia. The Tagges maintain that, because they held cards entitling them to possess and use marijuana under the Arizona Medical Marijuana Act ("AMMA"), they were immune from prosecution. We hold to the contrary that, because immunity under the AMMA does not extend to smoking marijuana in a public place, the Tagges could be prosecuted for doing so in their car in a public parking lot. Accordingly, and for reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 The facts are undisputed. Bound for a music festival in Mesa one afternoon, the Tagges parked in a commercial lot near the concert venue. The lot was owned by the City of Mesa and had been leased to a radio station for parking for the event. The Tagges pulled up next to two undercover Mesa police officers, who watched as the Tagges sat in their car and smoked marijuana from a pipe they passed between them. Although the windows of the Tagges' car were up, police saw smoke coming from the pipe, ordered them out of the car and seized the pipe, along with approximately one gram of marijuana.

¶3 Each of the Tagges was a "qualifying patient" under the AMMA. See Ariz. Rev. Stat. ("A.R.S.") §§ 36-2801(13), -2811. At trial, they argued that they were immune from prosecution under § 36-2811, which generally immunizes AMMA cardholders' marijuana use, subject to several exceptions, including one at issue in this case: smoking in a public place. See A.R.S. § 36-2802(C)(2). The superior court rejected the Tagges' argument, finding that although they were inside a closed car, they were in a public place and were not entitled to immunity. After a bench trial, the court convicted them of misdemeanor marijuana and paraphernalia offenses and imposed six months' unsupervised probation. The Tagges each filed a timely appeal.

DISCUSSION

¶4 By law, the State may not subject a qualifying patient to arrest or prosecution for "use of marijuana pursuant to [the AMMA]." A.R.S. § 36-2811(B)(1). This protection "broadly immunizes qualified patients, carving out only narrow exceptions from its otherwise sweeping grant of immunity." Reed-Kaliher v. Hoggatt , 237 Ariz. 119, 122, ¶ 8, 347 P.3d 136, 139 (2015). Among the exceptions: A qualifying patient may not possess or use marijuana "[o]n a school bus," "[o]n the grounds of any preschool or primary or secondary school," or "[i]n any correctional facility." A.R.S. § 36-2802(B). And a qualifying patient may not smoke marijuana "[o]n any form of public transportation" or "[i]n any public place." A.R.S. § 36-2802(C). The dispositive issue here is whether the "public place" exception to immunity applies to smoking inside a private vehicle in a public parking lot.

¶5 This court reviews questions of statutory interpretation de novo. Reed-Kaliher , 237 Ariz. at 122, ¶ 6, 347 P.3d at 139. In interpreting statutes, we give special care "to give effect to every clause and word." Premier Physicians Grp., PLLC v. Navarro , 240 Ariz. 193, 196, ¶ 16, 377 P.3d 988, 991 (2016). "[W]e look to the statute as a whole, and construe together all parts of the statute relating to the same subject." Ariz. Health Care Cost Containment Sys. v. Bentley , 187 Ariz. 229, 232, 928 P.2d 653, 656 (App. 1996) ; see J.D. v. Hegyi , 236 Ariz. 39, 41, ¶ 6, 335 P.3d 1118, 1120 (2014) ("Words in statutes ... cannot be read in isolation from the context in which they are used."). When a term in a statute may have differing meanings, we "consider[ ] secondary factors, such as the statute's context, subject matter, historical background, effects and consequences, and spirit and purpose." Premier Physicians , 240 Ariz. at 195, ¶ 9, 377 P.3d at 990.

¶6 The Tagges first argue that the parking lot itself was not a public place within the meaning of the AMMA. They urge us to adopt the limited definition of "public place" found in the Smoke-Free Arizona Act ("SFAA"), which includes only an "enclosed area to which the public is invited or in which the public is permitted." A.R.S. § 36-601.01(A)(9) (emphasis added). The Tagges assert that because both the SFAA and the AMMA appear in Title 36 of the Arizona Revised Statutes, we must read the two in pari materia so that the SFAA's definition of "public place" would apply to every use of the phrase in Title 36.

¶7 The Tagges' argument is unavailing because the SFAA expressly applies only to tobacco products, not marijuana. See A.R.S. § 36-601.01(A)(11) (defining "[s]moking" by reference to "any lighted tobacco product"). The AMMA drafters could have expressly incorporated the public place definition from the SFAA, but they did not do so. That the two statutes are in the same title is insufficient to warrant application of the SFAA's definition to the AMMA given the distinct subject matters and the different purposes of the two acts. See Moreno v. Jones , 213 Ariz. 94, 99, ¶ 28, 139 P.3d 612, 617 (2006) (in pari materia statutes "relate to the same subject or have the same general purpose") (citation omitted). Accordingly, we hold that a public place under the AMMA is not limited to enclosed areas. Instead, a public place is simply "a place open to or frequented by the general public," see State v. Whitaker , 164 Ariz. 359, 362, 793 P.2d 116, 119 (App. 1990), and the city-owned parking lot in this case meets that definition. See Florida v. White , 526 U.S. 559, 566, 119 S.Ct. 1555, 143 L.Ed.2d 748 (1999) (employer's parking lot is a "public area" for purposes of a Fourth Amendment challenge); People v. Strider , 177 Cal. App. 4th 1393, 1402, 100 Cal.Rptr.3d 66 (2009) (parking lot is a "public place" under statute criminalizing carrying loaded firearm in a public place); Dornbusch v. State , 262 S.W.3d 432, 437 (Tex. Ct. App. 2008) (parking lot is akin to public roadway in interpreting "public place" element of driving-under-influence statute).

¶8 The Tagges counter that the parking lot was not a public place within the meaning of the statute because, although municipally owned, the lot was leased to a radio station, which in turn charged concert-goers to park there. The Tagges do not cite and we are unaware of any authority for the proposition that a fee requirement for entering or using a space that otherwise is open to everyone renders a parking lot a non-public place, and we hold that the parking lot in this case was a public place for purposes of the AMMA.

¶9 The Tagges also argue that, even if the parking lot were considered to be a public place, they nevertheless were not subject to prosecution because they did not smoke marijuana in the open, but instead did so inside a closed private vehicle. But the interior of a vehicle is not a separate place distinct from the location in which the vehicle is found. The expedient of being enclosed in a vehicle parked in a public place does not, without more, remove a person from the public place. Criminal trespass, for example, is not decriminalized if a trespasser's unauthorized presence on a property is inside a vehicle. Simply put, a location-including a public place-does not change its character when a person is present in a vehicle, rather than on foot.

¶10 Although this is a case of first impression in Arizona, our conclusion that immunity under the AMMA does not extend to smoking in a private vehicle in a public parking lot is consistent with that reached by the Michigan Court of Appeals in People v. Carlton , 313 Mich.App. 339, 880 N.W.2d 803 (2015). Construing a similarly worded medical-marijuana statute, the Michigan court concluded that a qualifying patient cited for smoking in his car in a casino parking lot was not immune from prosecution. Id. at 805-08. Noting that the statute withdrew immunity for smoking in "any public place" (but did not condition immunity on whether the act was done "in public"), the court held that immunity from prosecution for smoking marijuana does not extend "to [qualifying patients] who smoke medical marijuana in a parking lot that is open to use by the general public, even when smoking inside a privately owned vehicle, and even if the person's smoking is not directly detectable by the members of the general public." Id. at 807-10. Although the court acknowledged that the interior of a privately owned car can be private, it ultimately rejected the notion that a vehicle's interior could be a "place" whose public or private character would determine immunity under the statute. Id. at 809-10.

¶11 Like the Michigan court in Carlton , we acknowledge that, in general, motorists in private vehicles enjoy privacy interests entitled to constitutional protection. See id. ; see also Arizona v. Gant , 556 U.S. 332, 345, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009). But we agree with the Michigan court that applicability of the "public place" exception in the statute hinges on the character of the place, not on whether the qualifying patient takes steps to conceal the act or limit its effect on others within that place.

¶12 The Tagges alternatively argue that our statutory analysis ignores a separate prong of § 36-2802(C), which withdraws immunity for smoking marijuana "[o]n any form of public transportation." In their view, the statute's express withdrawal of immunity for smoking on public transportation implicitly preserves immunity for smoking inside private transportation. The Tagges suggest that, if a patient's immunity when smoking marijuana in a means of private transportation hinges on the location of the means of private transportation, the statute's separate reference to "public transportation" would be redundant because "any form of public transportation" necessarily will be located in a "public place," i.e., a roadway, railway, bus station, or parking lot.

¶13 We disagree that our interpretation of the statute renders the "public place" and "public transportation" provisions redundant. The statute withdraws immunity for smoking in any public place, as well as for smoking on any form of public transportation (without regard to whether the public transportation is in a public or private place). Although public transportation vehicles usually travel in public places, they sometimes venture into otherwise non-public spaces. For example, a public bus may transport people over private property. Similarly, a bus may be parked in a restricted area of a bus depot or may undergo mechanical work in a private garage. In any of these scenarios, under the express language of the statute, smoking marijuana is not permitted on the bus, even though it is located in a non-public place. Thus, although the "public place" and "public transportation" restrictions overlap to a significant extent, it is not necessary to read the "public transportation" provision as an implicit exclusion of "private transportation" to give it meaning.

¶14 Furthermore, accepting the Tagges' view that the statute implicitly allows smoking in any form of private transportation would lead to anomalous results. Such an interpretation would allow an individual to smoke marijuana in the open, for example in a public park, by the simple expedient of perching on a motorcycle or some other form of private transportation. To avoid this absurd result, the court would presumably have to write in a windows-up requirement in addition to finding an implicit private-vehicle exception, all based on the statute's reference to public transportation. We decline to judicially amend the AMMA to reach so far beyond the text of the statute, and we conclude that the public transportation and public place restrictions in the AMMA are complementary and not impermissibly redundant.

CONCLUSION

¶15 The Tagges, even though qualifying patients under the AMMA, lost their immunity from prosecution for marijuana and paraphernalia-related offenses because they were smoking marijuana in a public place. Although the Tagges could have consumed marijuana in the same location by other means, they ceded their immunity by smoking marijuana in a public place. We thus affirm their convictions.

SWANN, Judge, specially concurring:

¶16 I agree with the majority opinion, but I write separately to note that it should not be overread. The determining factor in this appeal is the question whether the Tagges smoked marijuana in a "public place." Though a person's mere presence in a vehicle is not by itself sufficient to remove him or her from the public place in which the vehicle is located, the fact that a person is in a mobile enclosure does not necessarily mean the person is in a "public place."

¶17 Our holding in this case does not extend, for example, to a patient who is in a traditionally private place, such as the closed bedroom of a mobile home lawfully parked in a public lot. The appropriate inquiry centers on the reasonable expectation of privacy that a patient has in the location where the smoking takes place-the greater the expectation of privacy, the less "public" the place. And though I agree that the exposed passenger compartment of a car does not carry with it a reasonable expectation of privacy when smoking marijuana, other circumstances involving a different type of vehicle located in a public place might dictate a different result.

      We note that the Department of Health Services issued regulations defining "public place" under the AMMA to include "parking lots." Ariz. Admin. Code R9-17-101(24)(xiv). The superior court in this case, however, ruled that the department lacked authority to issue the regulation and held it invalid. The State did not cross-appeal from that ruling, see A.R.S. § 13-4032(3), and does not argue that the regulation bears on this appeal.


text:
    The PEOPLE of the State of Colorado, Petitioner v. Richard Wesley ANDERSON, Respondent.
    Supreme Court Case No. 16SC442
    Supreme Court of Colorado.
    May 20, 2019
    Attorneys for Petitioner: Philip J. Weiser, Attorney General, Elizabeth Rohrbough, Senior Assistant Attorney General, Denver, Colorado
    Attorneys for Respondent: Megan A. Ring, Public Defender, Elizabeth Porter-Merrill, Deputy Public Defender, Denver, Colorado
    En Banc
   CHIEF JUSTICE COATS delivered the Opinion of the Court.

¶1 The People petitioned for review of the court of appeals' judgment vacating Anderson's conviction for attempted extreme indifference murder. See People v. Anderson , 2016 COA 47, --- P.3d ----. Concluding that the universal malice element of extreme indifference murder requires for conviction that more than one person have been endangered by the defendant's conduct and also concluding that no evidence was offered to prove the defendant's shooting endangered anyone other than the victim, the court found the evidence insufficient to support the conviction.

¶2 Because the statutory definition of extreme indifference murder does not limit conviction of that offense to conduct endangering more than one person, and because the evidence in this case was sufficient to permit a jury determination of the defendant's guilt of attempted extreme indifference murder, the judgment of the court of appeals vacating the defendant's conviction is reversed, and the case is remanded for consideration of any assignments of error concerning that conviction not yet addressed.

I.

¶3 Richard Anderson was charged with attempted deliberation murder, attempted extreme indifference murder, first degree assault against a peace officer, first degree assault causing serious bodily injury with a deadly weapon, first degree extreme indifference assault, two counts of menacing, driving while intoxicated, and two counts of committing a crime of violence. The jury found him not guilty of attempted deliberation murder, but convicted him on the remaining charges, as well as the defense-requested, lesser non-included offense of reckless endangerment. The trial court imposed a sentence of 48 years in the custody of the department of corrections for the defendant's conviction of attempted extreme indifference murder and a total sentence of 108 years incarceration.

¶4 The prosecution presented testimonial, physical, and documentary evidence from which the jury could find the following facts. On the day in question, the defendant spent the night drinking at a bar near the intersection of Highway 86 and Highway 83 in Douglas County. At some point he appeared agitated and made statements to the effect that he was suicidal and that he had a gun and ammunition in his car.

¶5 After returning to his car in the parking lot shortly before 2 a.m., the defendant became embroiled in a dispute with the bar manager and a customer who was apparently concerned about him, alternately threatening to shoot the manager and then the customer. After being notified that the police were on the way, the defendant produced a semiautomatic handgun from under his seat and pointed it at the customer, struggled with him, and ultimately wrested his gun free of the customer's grip and drove away with it, heading north on Highway 83. While the manager was on the phone reporting the incident, the customer returned to the bar and reported that the defendant was armed and had pointed the gun at him.

¶6 A Douglas County Sheriff's deputy patrolling nearby in a marked vehicle heard a dispatch airing of the incident and description of the defendant's vehicle. Minutes later, the deputy saw a vehicle matching that description, and shortly after it turned off Highway 83, he managed to pull behind the vehicle, which then stopped on its own. The deputy stopped as well, activated his overhead lights and spotlight, and aired the vehicle's license plate over the radio.

¶7 The defendant immediately opened the driver's-side door and, despite the deputy's command to remain inside, got out and suddenly began advancing and firing on the deputy, who used the patrol car door as cover and returned fire, while retreating to the back of the patrol car. The defendant fired at least thirteen times in rapid succession, repeatedly striking the patrol car's hood and driver's-side door; ultimately emptied his magazine; and then attempted to reload. The deputy fired twelve rounds, wounding the defendant in the neck and abdomen, after having himself been shot by the defendant in the arm. The shooting was over within seconds, with less than a minute having passed between the deputy's airing the defendant's license plate and his subsequent report of the shooting.

¶8 Although the surveillance video failed to show anyone else in the vicinity during the shooting, it caught a car passing the defendant on Highway 83 less than a minute before he turned off the highway and another two cars passing by him less than ten seconds before turning. A ballistics expert testified that bullets from the defendant's firearm could have traveled the approximately 200 yards from the location of the shooting to the intersection with Highway 83, and a bullet fragment was actually recovered not far from that intersection.

¶9 The defendant did not testify at trial, but other defense witnesses, including his friends and daughters, testified that he had been depressed for the past few years, following the death of his wife; had lost his job as a result; and was eventually evicted from his home, forcing his teenage daughter to move in with his adult daughter. An email sent from the defendant one week before the shooting indicated he intended to commit suicide. Through the arguments of counsel, the defendant presented his theory of defense-that he did not intend to harm or kill the deputy but only wanted to be killed by the deputy's return fire.

¶10 Following his convictions, the defendant appealed, challenging, among other things, the sufficiency of the evidence on the count of attempted extreme indifference murder and the permissibility of his suffering multiple convictions of first degree assault for shooting the deputy. The appellate court agreed with the defendant's assertion that there was insufficient evidence that "he sought to take human life generally" because he directed his conduct at a single person and endangered only that person. The court held that as a matter of law, "universal malice," as that term is included in the statutory definition of extreme indifference murder, requires proof of conduct that creates a grave risk of death to more than one person. Because the court found there to have been no evidence that anyone other than the deputy was endangered by the defendant's shooting, it concluded there was insufficient evidence to reach the jury on the charge of attempted extreme indifference murder, and it therefore vacated that conviction. The court also vacated two of the first degree assault convictions, finding the three assault convictions to represent merely alternate ways of committing the same crime.

¶11 We issued our writ of certiorari on the question whether the court of appeals erred in concluding that the evidence could not support the jury's finding of attempted extreme indifference murder.

II.

¶12 As we have recounted in much greater detail elsewhere, the form of homicide in this jurisdiction now referred to as extreme indifference murder has undergone considerable evolution, in both case law and legislation, in reaching its current state. See Montoya v. People , 2017 CO 40, ¶ 11, 394 P.3d 676, 681 ; Candelaria v. People , 148 P.3d 178, 180-83 (Colo. 2006) ; People v. Jefferson , 748 P.2d 1223, 1226-30 (Colo. 1988). After striking down a predecessor version of extreme indifference murder as being indistinguishable from, but nevertheless punished more severely than, the knowing homicide offense of second degree murder, see People v. Marcy , 628 P.2d 69, 71-72 (Colo. 1981), this court upheld the amended statute defining extreme indifference murder against a similar equal protection challenge, Jefferson , 748 P.2d at 1233. We did so largely as the result of our understanding of the current statute as, unlike its predecessor, defining a crime of greater social consequence than second degree murder by proscribing certain killing acts of a particularly heinous nature, rather than by attempting to carve out a new and intermediate culpable mental state between knowledge and intent. Id . at 1232 ; see also Montoya , ¶ 11, 394 P.3d at 682 ; Candelaria , 148 P.3d at 181.

¶13 In Candelaria , we explained our reasoning in Jefferson in greater detail, focusing on the nature of the killing acts, or actus rei , falling within the statutory definition of extreme indifference murder, and ultimately distinguishing them from other acts causing death, as ones "objectively demonstrating a willingness to take life indiscriminately." Candelaria , 148 P.3d at 182. We there reasoned that while a killing act putting at grave risk a number of individuals not specifically targeted by the defendant, like secreting a bomb on an airplane to kill a particular individual, could be an act demonstrating such a willingness to take life indiscriminately, so too would a killing act putting at risk no more than a single victim, but doing so without knowing or caring who that victim might be. Id. Relying heavily on the legislature's decision to add the words, "or persons," rather than substituting them for the existing word, "person," we expressly held that the amended statute necessarily contemplates killing acts of both types. Id . at 182-83.

¶14 The court of appeals therefore erred in holding that the offense of extreme indifference murder in this jurisdiction can be committed only by conduct that actually endangers more than one person. Whatever the intermediate appellate court may have considered to be the implications of the secondary authority we referenced as partial support for our ultimate conclusion in Candelaria , see id. at 183 (citing State v. Anderson , 94 Wash.2d 176, 616 P.2d 612, 615 (1980), and State v. Pettus , 89 Wash.App. 688, 951 P.2d 284, 288 (1998) ), there can be no question that we expressly construed the statute as comprehending "acts putting at risk a single victim, without knowing or caring who that may be," as well as those acts "put[ting] at grave risk a number of individuals not targeted by the defendant," id . at 182-83. Perhaps more fundamentally, however, our holding rested on our interpretation of the statute as singling out for special treatment those acts causing the death of another under circumstances evidencing a willingness to take life indiscriminately-not acts having an actual effect of endangering a number of lives, or even one life, indiscriminately. While knowingly causing the death of a particular person by means endangering others may very well evidence a willingness on the actor's part to take life indiscriminately, the number of other people endangered by the conduct in question is clearly not dispositive of the actor's subjective willingness to take life indiscriminately, much less of the classification of the killing act itself as one evidencing a willingness to take life indiscriminately.

¶15 Although in Candelaria we made clear that the conduct proscribed by the statute could include either acts putting at risk a single person or acts putting at risk more than one person, in doing so we did not purport to define or in any way circumscribe the universe of conduct evidencing a willingness to take life indiscriminately. Quite the contrary, while the statute separately requires conduct causing the death of another, the feature of extreme indifference murder distinguishing it from, and elevating it in culpability above, second degree murder is the requirement that the killing conduct be engaged in under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally, see § 18-3-102(1)(d), C.R.S. (2018); Jefferson , 748 P.2d at 1231-32, which we have construed to describe a killing act objectively demonstrating a willingness to take life indiscriminately, Candelaria , 148 P.3d at 182. Whether the conduct in question actually endangers more than a single targeted person, or even whether the actor subjectively intends to or is aware that his conduct may ultimately take life indiscriminately, the question for the trier of fact is whether the act by which death is knowingly caused, by its very nature or the surrounding circumstances of its commission, objectively evidences such a willingness.

III.

¶16 For more than four decades we have held there to be sufficient evidence to support a conviction if "the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt." People v. Bennett , 183 Colo. 125, 515 P.2d 466, 469 (1973) ; see also Jackson v. Virginia , 443 U.S. 307, 313-20, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (recounting history of similar federal standard); Clark v. People , 232 P.3d 1287, 1292 (Colo. 2010) (rejecting requirement that under substantial evidence standard the prosecution must "exclude every reasonable hypotheses other than that of guilt" or disprove the defendant's theory (quoting Bennett , 515 P.2d at 469 )). Had the deputy in this case actually been killed rather than merely wounded, and had the defendant been charged with extreme indifference murder for causing his death, the relevant inquiry for purposes of the sufficiency of the evidence to prove an actus reus satisfying the requirements of extreme indifference murder would therefore have been whether the defendant's conduct causing death-rapidly firing thirteen rounds in the deputy's direction, in that particular location and at that particular time of night-could be found by reasonable jurors to be conduct evidencing a willingness to take life indiscriminately, without knowing or caring whose life, or whose lives, might be lost as the result of his conduct.

¶17 In this case, because the deputy, despite having been shot in the flurry of gunfire aimed in his direction, did not die, the defendant was instead charged with and convicted of attempted extreme indifference murder. With regard to the crime of attempted extreme indifference murder in particular, we recently reaffirmed in Montoya the now well-settled proposition that attempt liability in this jurisdiction does not require a specific intent, or conscious objective to accomplish a proscribed result, ¶ 17, 394 P.3d at 683, and instead can attach to crimes requiring merely knowledge with regard to the conduct, circumstances, or result defining the crime in question, see People v. Krovarz , 697 P.2d 378, 383 (Colo. 1985), or even to crimes of recklessness, see People v. Thomas , 729 P.2d 972, 976-77 (Colo. 1986).

¶18 For conviction of attempted extreme indifference murder, as attempt liability has been held to exist in this jurisdiction, there must be evidence from which a trier of fact can find that the actor was aware he was engaging in conduct strongly corroborative of the firmness of his purpose to complete the commission of the crime of extreme indifference murder, see § 18-2-101(1), C.R.S. (2018) (defining criminal attempt); see also People v. Lehnert , 163 P.3d 1111, 1113 (Colo. 2007), and commission of the crime of extreme indifference murder itself could be complete only if the defendant caused the death of another by knowingly engaging in conduct creating a grave risk of death to a person or persons other than himself, under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally, see Montoya , ¶ 17, 394 P.3d at 683-84.

¶19 Notwithstanding the theory advanced by the defense that rather than attempting to kill the deputy, the defendant was hoping to himself be killed by the deputy, there was an abundance of evidence strongly corroborative of his purpose to knowingly kill. The court of appeals did not suggest otherwise but merely found that there was insufficient evidence from which the jury could have reasonably found that the conduct by which the defendant nearly succeeded in doing so was such as to demonstrate a willingness to take life indiscriminately, as required to elevate second degree murder to extreme indifference murder. When the statute defining extreme indifference murder is properly understood as proscribing killing acts demonstrating, in and of themselves, a willingness to take life indiscriminately, regardless of the number of lives actually endangered, there was, however, also sufficient evidence to elevate the crime committed by the defendant from attempted second degree murder to the crime of attempted extreme indifference murder.

¶20 When all of the relevant evidence, both direct and circumstantial, is viewed as a whole and in the light most favorable to the prosecution, there was clearly sufficient evidence at trial from which reasonable jurors could find not only that the defendant came close to killing the deputy, but also that the defendant's conduct in doing so, under the circumstances of its commission, demonstrated a willingness to take life indiscriminately, either because it objectively evidenced a willingness to kill as many as thirteen bystanders within range of the defendant's indiscriminate shooting, or simply because it evidenced a willingness to kill whoever was pursuing him, in order to draw return fire and be killed himself. With regard to other bystanders, there was evidence from which the jury could find that the defendant's gunfire was not only capable of reaching, but in fact practically reached, as far as Highway 83, the highway from which the defendant had recently turned and upon which he had only minutes before necessarily observed other travelers. With regard to his pursuers, however many and whoever they might have been, if his own theory were credited, the defendant did not shoot with the purpose of preventing them from capturing him at all, but rather with the purpose of drawing return fire. Yet, rather than firing into the air or at least over the heads of any pursuers, the defendant fired directly at the police vehicle pursuing him, actually striking the driver's door a number of times and actually wounding the deputy behind it. Virtually by his own admission, the defendant's multiple firings evidenced both an objective and subjective willingness to kill however many officers might be chasing him, in the hope that one of them would return fire and kill him.

¶21 With regard to lesser included offenses of homicide, we have long expressed a preference for permitting juries to determine the precise statutory grade of criminal homicide for which the defendant should be punished. See People v. Shaw , 646 P.2d 375, 379 (Colo. 1982) ; Crawford v. People , 12 Colo. 290, 20 P. 769, 770 (1889). Similarly, where there is clearly sufficient evidence to support a finding that the defendant committed a knowing homicide satisfying the statutory elements of second degree murder, the question whether the nature and circumstances of its commission were such as to necessarily demonstrate a willingness of the actor to take life indiscriminately is peculiarly a matter for the jury. We have previously indicated, and now reaffirm, that the actus rei capable of supporting a conviction for extreme indifference murder are not limited by the statute to those actually endangering more lives than merely that of the victim. In the absence of such a definitional prerequisite, the evidence in this case was sufficient to support a jury determination that the defendant's conduct satisfied the statutory definition of the kind of act causing death.

IV.

¶22 Because the statutory definition of extreme indifference murder does not limit conviction of that offense to conduct endangering more than one person, and because the evidence in this case was sufficient to permit a jury determination of the defendant's guilt of attempted extreme indifference murder, the judgment of the court of appeals vacating the defendant's conviction is reversed, and the case is remanded for consideration of any assignments of error concerning that conviction not yet addressed.

      The current statute specifies that a person commits first degree murder if: "under circumstances evidencing an attitude of universal malice manifesting extreme indifference to the value of human life generally, he knowingly engages in conduct which creates a grave risk of death to a person, or persons, other than himself, and thereby causes the death of another." § 18-3-102(1)(d), C.R.S. (2018) (emphases added to reflect amendments).