text:
    2002 WY 108
    Brian Elwood WALTON, Appellant (Respondent), v. STATE of Wyoming, ex rel., State of Utah, ex rel., Mariann WOOD, Appellee (Petitioner).
    No. 01-197.
    Supreme Court of Wyoming.
    July 15, 2002.

      Representing Appellant: Brian E. Waiton, Pro se, Afton, Wyoming.
    Representing Appellees: Hoke M. MacMil-lan, Attorney General; Michael L. Hubbard, Deputy Attorney General; and Sue Chat-field, Assistant Attorney General.
    Before HILL, C.J., and GOLDEN, LEHMAN , KITE, and VOIGT, JJ.

       Chief Justice at time of expedited conference.

   HILL, Chief Justice.

[T1] Brian Elwood Walton (Walton) appeals a district court order confirming the registration of a Utah support order pursuant to the Uniform Interstate Family Support Act and withholding income. We affirm.

ISSUES

[¶ 2] In his pro se brief, Walton did not present a statement of the issue(s) presented for review, as required by Wyoming Rule of Appellate Procedure 7.01(d). Appellee, Department of Family Services (DFS), sets forth a statement of the issues on appeal in its brief:

I. Whether the district court properly determined that the state of Utah had subject matter jurisdiction.
II. Whether the district court properly applied the full faith and credit clause of the United States Constitution to the registered child support order.
III. Whether appellant submits any co--__ gent argument or legal authority.

FACTS

[¶ 3] Walton and his ex-wife, Mary Ann (Mother), are the parents of two children. They were divorced in Idaho in 1987. Mother was awarded primary physical custody of the children and Walton was ordered to pay child support. Subsequent to the divorce Mother and children moved to Utah. In 1991, an Idaho court entered an order modifying the original divoree decree's custody and visitation provisions. In that order, the Idaho court ceded jurisdiction to the courts of Utah over issues relating to child custody while retaining jurisdiction over child support. In 1996, Walton moved to Lincoln County, Wyoming.

[¶ 4] On March 8, 1997, a hearing was held in the Second Judicial District Court for Davis County, Utah on an application by Mother to modify custody, visitation, and support. On August 19, 1997, the Utah court issued an order granting primary, physical custody of the children to Mother, establishing visitation, and ordering Walton to pay support. The Utah Court of Appeals dismissed Walton's appeal of the order because his notice was untimely.

[¶ 5] On March 17, 2000, DFS filed a petition with the Lincoln County district court to register the Utah support order pursuant to the Uniform Interstate Family Support Act (UIFSA). The DFS petition sought recovery of child support arrearages allegedly owed by Walton. Walton objected to the petition contending that Utah lacked subject matter jurisdiction over child support and personal jurisdiction over him. The district court concluded that Utah had jurisdiction and entered an order confirming registration of the Utah support order and withholding Walton's income in discharge of the arrearage. Walton appealed to this Court reiterating his contention that the Utah courts lacked jurisdiction over child support and raising an allegation of judicial misconduct by the district court judge.

STANDARD OF REVIEW

[¶ 6] We conduct a de novo review of jurisdictional questions pursuant to "the inherent power, and the duty, to address jurisdictional defects on appeal...." Gookin v. State Farm Fire & Cas. Ins. Co., 826 P.2d 229, 232 (Wyo.1992). If a lower court acts without jurisdiction, "this court will notice the defect and have jurisdiction on appeal, not on the merits, but merely for the purpose of correcting the error of the lower court in maintaining the suit." Gookin, at 232.

Weller v. Weller, 960 P.2d 493, 494 (Wyo.1998) (quoting Pawlowski v. Pawlowski, 925 P.2d 240, 242 (Wyo.1996) (citation omitted)).

DISCUSSION

[¶ 7] UIFSA was designed to streamline and expedite interstate enforcement of child support decrees. Cowan v. Moreno, 903 S.W.2d 119, 121 (Tex.App.-Austin 1995). To further these goals and establish national uniformity, Congress mandated that all states adopt UIFSA by January 1, 1998. 42 U.S.C. § 666(f) (West 1996 Supp.); see also Bordelon v. Dehnert, 770 So.2d 433, 486 (La.App. 1 Cir.2000). The three states involved in this dispute have adopted UIFSA. See Wyo. Stat. Ann. §§ 20-4-189 through 20-4-194 (LexisNexis 2001), Utah Code Ann. §§ 78-45f-100 through 78-45f-902 (Lexis 2001 Supp.), and Idaho Code §§ 7-1001 through 7-1059 (Michie 1998).

[¶ 8] Idaho, as the issuing state, retained continuing, exelusive jurisdiction over the child support order issued in this case so long as: (1) the obligor, obligee or the child for whose benefit the support order remained residents of Idaho; or (2) until all the parties who are individuals have filed written consents for a tribunal of another state to modify the order and assume continuing, exclusive jurisdiction. Wyo. Stat. Ann. § 20-4-146(a); Utah Code Ann. § 78-45f-205(1); Idaho Code § 7-1008(1). As the official comments to UIFSA explain:

This section is perhaps the most erucial provision in UIFSA.... As long as one of the individual parties or the child continues to reside in the issuing state, and as long as the parties do not agree to the contrary, the issuing tribunal has continuing, exclusive jurisdiction over its order-which in practical terms means that it may modify its order. The statute attempts to be even-handed-the identity of the remaining party-obligor or obligee-does not matter. If the individual parties have left the issuing state but the child remains behind, continuing, exclusive jurisdiction remains with the issuing state.
The other side of the coin follows logically. Just as Subsection (a)(1) defines the retention of continuing, exclusive jurisdiction, by clear implication the subsection also defines how jurisdiction to modify may be lost. That is, if all the relevant persons-the obligor, the individual obligee, and the child-have permanently left the issuing state, the issuing state no longer has an appropriate nexus with the parties or child to justify exercise of jurisdiction to modify. Further, the issuing tribunal has no current information about the factual cireumstances of anyone involved, and the taxpayers of that state have no reason to expend public funds on the process. Note, however, that the original order of the issuing tribunal remains valid and enforceable. That order is in effect not only in the issuing state and those states in which the order has been registered, but also may be registered and enforced in additional states even after the issuing state has lost its power to modify its order.... The original order remains in effect until it is properly modified.

Interstate Family Support Act § 205, 9 TU.L.A. 285-86 (1999). In this case, by 1997 all of the parties had permanently left Idaho, the issuing state. Therefore, contrary to Walton's argument, Idaho no longer retained continuing, exclusive jurisdiction over support issues, although the 1991 order issued by the Idaho court remained in full force and effect.

[¶ 9] The question before us is whether or not Utah had jurisdiction to modify the Idaho support order. Once the issuing state has lost continuing, exclusive jurisdiction, UIFSA provides that another tribunal, under certain specified conditions, may assume jurisdiction to modify the existing support order. The Utah version of the UIFSA provision states:

Modification of child support order of another state.
(1) After a child support order issued in another state has been registered in this state, the responding tribunal of this state may modify that order only if Seetion 78-45f-613 does not apply and after notice and hearing it finds that:
(a) the following requirements are met: |
(i) the child, the individual obliges, and the obligor do not reside in the issuing state;
(ii) a petitioner who is a nonresident of this state seeks modification; and
(iii) the respondent is subject to the personal jurisdiction of the tribunal of this state; or
(b) the child, or a party who is an individual, is subject to the personal jurisdiction of the tribunal of this state and all of the parties who are individuals have filed written consents in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing, exclusive jurisdiction over the order.

Utah Code Ann. § 78-45f-611; see also Wyo. Stat. Ann. § 20-4-183(a) and Idaho Code § 7-1050. If all of the parties have left the original issuing jurisdiction and reside in different jurisdictions, then UIFSA provides two methods for a court in one of the new states to assert jurisdiction over the support order. In most cases, the party seeking modification must seek relief in the state of residence of the non-moving party. Interstate Family Support Act § 611, 9 U.L.A. 371, (1999). However, the parties may mutually agree to submit themselves to the jurisdiction of another forum. Id. at 372. In this case, Utah obtained jurisdiction through the latter method. In its findings of fact, the Utah court noted the following:

[7] By stipulation of the parties, jurisdiction over the custody and visitation issues was transferred to the Utah courts prior to the time defendant moved to Wyoming. [8] By written pleading submitted just prior to trial in this recent matter by defendant, the subject matter jurisdiction over the issues of child support and other financial matters concerning the children was transferred from Idaho to the Second Judicial District Court, Davis County, Farmington Department, State of Utah.

It is clear that all of the parties agreed to transfer jurisdiction over the support order to Utah and, accordingly, Utah properly exercised jurisdiction over the Idaho order for the purpose of modifying support pursuant to the provisions of UIFSA. Walton's claims that Utah lacked subject matter jurisdiction in this matter are without merit.

[¶ 10] Walton also challenges Utah's exercise of personal jurisdiction over him. UIFSA specifically states that a person who contests the validity of an order that is being registered can effect a stay of the order if he demonstrates that the issuing tribunal lacked personal jurisdiction over him. See Wyo. Stat. Ann. § 20-4-179(2)(), Utah Code Ann. § 78-45£-607(1)(a), and Idaho Code § 7-1046(1)(a). If a defendant fails to question the jurisdiction of the court over him at the earliest opportunity, then the right to challenge that assertion of personal jurisdiction will be considered waived. Matter of Adoption of MSVW, 965 P.2d 1158, 1162 (Wyo.1998); United Mine Workers of America, Local 1972 v. Decker Coal Company, 774 P.2d 1274, 1283 (Wyo.1989). Here, there is no evidence that Walton ever challenged the exercise of personal jurisdiction over him by the Utah court. In fact, the available evidence indicates that Walton actively and voluntarily participated in the proceedings before the Utah court. The findings of fact in the Utah court's decision show that Walton filed pleadings, stipulated to the transfer of subject matter jurisdiction over support issues to Utah, and participated in the proceedings on the merits. There is no indication in the Utah court's decision that Walton ever raised the question of personal jurisdiction in those proceedings. Any claim of error predicated on the lack of personal jurisdiction was either not raised or waived by Walton. Accordingly, the Wyoming district court did not err in registering the Utah order and enforcing its provisions pursuant to UIFSA. .

[¶ 11] Walton also raises two other issues. First, he claims that the district court failed to properly credit him for money withheld from his taxes. Second, Walton claims that there was judicial misconduct by the district court judge. While difficult to discern from his pro se brief, Walton appears to allege that the district court judge had ex parte contact with the attorney representing the State of Wyoming. We have consistently refused to address claims not supported by cogent argument or citation to pertinent authority whether a pro se litigant or counsel files the brief. Hamburg v. Heilbrun, 889 P.2d 967, 968 (Wyo.1995). Walton fails to make a cogent argument or offer any evidence supporting his accusation of judicial misconduct or claim for credit against the child support arrearage for money allegedly already withheld from his taxes; therefore, we will not address Walton's claims.

CONCLUSION

[¶ 12] The State of Utah properly exercised jurisdiction over the issue of child support payments and Walton pursuant to the provisions of UIFSA. Accordingly, the district court's decision registering the child support order issued in that state and withholding income to recover arrearages is affirmed.

      . The "issuing state" is the state in which a tribunal has issued a support order. Wyo. Stat. Ann. § 20-4-140(a)ix); Utah Code Ann. § 78-45f-101(9); Idaho Code § 7-1001(9).

      . "Obligor' means any individual, or the estate of a decedent:
      (A) Who owes or is alleged to owe a duty of
      support; (B) Who is alleged but has not been adjudicated to be a parent of a child; or
      (C) Who is liable under a support order.
      Wyo. Stat. Ann. § 20-4-140(a)(xii); Utah Code Ann. § 78-45f-101(13); Idaho Code § 7-1001(13).

      . '"Obligee" means:
      (A) An individual to whom a duty of support is or is alleged to be owed or in whose favor a support order has been issued or a judgment determining parentage has been rendered;
      (B) A state or political subdivision to which the rights under a duty of support or support order have been assigned or which has independent claims based on financial assistance provided to an individual obligee; or
      (C) An individual seeking a judgment determining parentage of the individual's child.
      Wyo. Stat. Ann. § 20-4-140(a)(xi); Utah Code Aun. § 78-45f-101(12); Idaho Code § 7-1001(12).

      . Section 78-45f-613 provides for jurisdiction in Utah if all of the parties have left the original issuing state and now reside in Utah. See also, Wyo. Stat. Ann. § 20-4-193 and Idaho Code § 7-1052. This provision is obviously not applicable to this situation since all of the parties do not reside in Utah.


source: Caselaw Access Project

author: KITE, Justice. SPANGLER, District Judge (Retired),

license: Public Domain

text:
    2002 WY 113
    Catherine A. VALANCE, Personal Representative of the Estate of Jeanne V. Miles, deceased, Appellant (Plaintiff), v. VI-DOUG, INCORPORATED, a Wyoming corporation, d/b/a Village Inn Restaurant, Appellee (Defendant).
    No. 00-316.
    Supreme Court of Wyoming.
    July 19, 2002.

      Cameron S. Walker of Schwartz, Bon, Walker & Studer, LLC, Casper, WY, Representing Appellant.
    Peter S. Dusbabek and Steven G. Greenlee of Montgomery, Kolodny, Amatuzio, Dusba-bek & Parker, LLP., Fort Collins, CO, Representing Appellee.
    Before HILL, C.J.; GOLDEN, LEHMAN, and KITE, JJ.; and DAN SPANGLER, D.J. (Ret.).

       Chief Justice at time of oral argument

   KITE, Justice.

[¶ 1] Jeanne Miles, age seventy-five, was opening the front door of a restaurant when the wind forcefully caught the door. A sign posted on the door instructed: "Please Hold Door Tight Due to Wind." Mrs. Miles claimed she did what the sign instructed her to do. The foree of the wind on the door caused her to fall onto the concrete walkway, breaking her hip. In her personal injury action against VI-Doug, Incorporated, a Wyoming corporation doing business as Village Inn Restaurant, Mrs. Miles alleged this event was caused by VI-Doug's failure to provide a reasonably safe entryway for its patrons. VI-Doug moved for summary judgment, contending, just as a restaurant does not owe a duty to protect its patrons from the effects of natural accumulations of snow and ice on its premises, it does not owe a duty to protect them from the effects of naturally occurring wind on its premises. In addition to disputing application of the "open-and-obvious-danger" exception in the context of wind, Mrs. Miles contended the sign instructing patrons to tightly hold the door also violated VI-Doug's duty to maintain the restaurant's premises in a reasonably safe condition. Simply stated, Mrs. Miles claimed the sign as worded, if heeded by a patron, created a hazardous condition.

[¶ 2] The district court ruled, first, that the open-and-obvious-danger exception applies to naturally occurring forces of wind just as it does to natural accumulations of snow and ice. Secondly, it determined reasonable minds could not differ that VI-Doug did not violate its duty to maintain the premises in a reasonably safe condition for its patrons by placing the sign as worded on the restaurant's front door.

[¶ 3] Affirming the district court's first ruling, we hold the open-and-obvious-danger exception does apply to naturally cccurring forces of wind. Reversing the district court's second ruling, we hold genuine issues of material fact exist as to whether the sign violated VI-Doug's duty to maintain the restaurant's premises in a reasonably safe condition for its patrons.

ISSUES

[¶ 4] Catherine A. Valance, personal representative of the Estate of Jeanne V. Miles (the personal representative), presents the following issues for our review:

1. Did the district court erroneously revive the absolute defenses of act of God and assumption of risk?
2. Did the district court err when it held that the open and obvious danger rule eliminates liability for dangers which exist on premises?
3. Did the district court err when it determined as a matter of law that a restaurant owner has no responsibility for any hazard or injury involving wind?
4. Did the district court err when it created an "open-and-obvious-natural-accumulation-of-wind" immunity rule; if not, was the incident in question really a "natural accumulation of wind" case when the record shows that manmade objects, such as a door and a building, were intimately involved in the injury?
5. Did the district court err when it ruled that a restaurant owner has no duty to guard against wind-related injuries on its premises?
6. Did the district court err in holding as a matter of law that no reasonable juror could find that a danger was created by a sign which instructed customers to bind themselves to a powerful wind blown door?
7. Did the district court err when it ruled that restaurant owners have no duty [tol minimize dangers created by the effect of wind on the doors of their premises?
8. Did the district court err in determining that [there] were no disputed issues of material fact?
9. Did the district court err in granting summary judgment against the plaintiff?

VI-Doug phrases the issues as:

1. Did the district court properly rule as a matter of law that VI-Doug, Incorporated had no duty to protect Ms. Miles against harm caused by the wind?
2, Did the district court properly rule as a matter of law that VI-Doug did not breach any duty by placing a sign on or near the door of its restaurant which stated "Please hold door tight due to wind["?]

FACTS

[¶ 5] We view the record on appeal in the light most favorable to Mrs. Miles who opposed VI-Doug's motion for summary judgment, affording her all the favorable inferences which can be drawn from the record. On March 5, 1999, Mrs. Miles went to the Village Inn Restaurant in Douglas with her grandson. She recalled that it was a terribly windy day. Her grandson let her off in front of the entrance to the restaurant, and he parked the car. Mrs. Miles testified she saw a sign posted on the door instructing patrons to hold the door tightly due to possible high winds. She maintained she followed the sign's directions and held on tightly to the door. Mrs. Miles claimed that, as she opened the door, a strong gust of wind caught it and caused her to fall to the ground. As a result of her fall, she suffered a broken hip that required surgery. The owner of VI-Doug testified that, three or four months prior to Mrs. Miles' accident, another woman was slightly injured under very similar cireumstances. Subsequent to this incident, VI-Doug sought bids to construct an effective windbreak although one was not constructed until after Mrs. Miles was injured.

[¶ 6] Mrs. Miles alleged VI-Doug was negligent in failing to provide a reasonably safe entry for its patrons and claimed damages for her resulting severe physical injuries. On October 16, 2000, the district court granted VI-Doug's motion for summary judgment concluding the same policy reasons that support the open-and-obvious-danger exception and the natural-accumulation-of-icc-and-snow rule, which immunize defendants from liability, applied equally to wind. The district court also concluded the wind that caused Mrs. Miles' injuries was naturally occurring. It granted summary judgment because (1) VI-Doug had no duty to protect Mrs. Miles from harm inflicted by the wind and (2) VI-Doug's placement of the sign on the restaurant's front door did not violate its duty to maintain a reasonably safe premises. This appeal followed.

STANDARD OF REVIEW

[¶ 7]

Summary judgment is proper, even in negligence cases, when there is no genuine issue of material fact in dispute and the moving party is entitled to judgment as a matter of law. When we review a motion for summary judgment, we view the record on appeal in the light most favorable to the party opposing the motion and accept all favorable inferences that can be drawn from the record in favor of that party.

Paulson v. Andicoechea, 926 P.2d 955, 957 (Wyo.1996) (citations omitted). "Summary judgment is not favored in negligence actions and is subject to more exacting scrutiny. However, even in negligence actions, summary judgment may be appropriate, especially if a plaintiff cannot establish the existence of a duty on the part of a defendant." Duncan v. Town of Jackson, 903 P.2d 548, 551 (Wyo.1995) (citations omitted); see also McCoy v. Crook County Sheriff's Department, 987 P.2d 674, 676 (Wyo.1999). Consequently, to prevail on her negligence claim, Mrs. Miles had to show VI-Doug owed her a duty of care. Selby v. Conquistador Apartments, Ltd., 990 P.2d 491, 495 (Wyo.1999); Halpern v. Wheeldon, 890 P2d 562, 565 (Wyo.1995).

DISCUSSION

[¶ 8] The elements a plaintiff must establish to maintain a negligence action are: (1) The defendant owed the plaintiff a duty to conform to a specified standard of care, (2) the defendant breached the duty of care, (8) the defendant's breach of the duty of care proximately caused injury to the plaintiff, and (4) the injury sustained by the plaintiff is compensable by money damages. Board of County Commissioners of Teton County by Teton County Sheriff's Department v. Bassett, 8 P.3d 1079, 1086 (Wyo.2000). In this case, we are required to address the first element: whether a duty exists. The application of the natural accumulation rule and the open-and-obvious-danger exception determines whether the defendant has a duty. Selby, 990 P.2d at 494, This is a question of law that the courts normally determine. Id. We have, however, recognized that in certain instances the question of the existence of a duty hinges upon the initial determination of certain basic facts and, in those cireumstances, the initial determination of those basic facts is properly placed before the trier of fact. Id.

[¶ 9] "As a general rule, a possessor of land owes a duty to his business invitees to maintain his premises in a reasonably safe condition." Eiselein v. K-Mart, Inc., 868 P.2d 893, 895 (Wyo.1994). VI-Doug, as the possessor of land in this case, relies on the recognized open-and-obvious-danger exception and posits that wind is like a natural accumulation of ice or snow in that it is a force of nature, an element of weather, and a naturally occurring phenomenon which a business invitee encounters off the business premises as well as when entering the business premises. The issues in this appeal are whether the natural accumulation rule and the open-and-obvious-danger exception are applicable to injuries resulting from naturally occurring wind and, if so, whether VI-Doug created a hazard on the restaurant's premises by posting a sign on its door directing patrons to take specific action when they encountered the natural effect of the wind on the restaurant's door.

[¶ 10] It is important to note that one of the underlying principles of the natural accumulation rule is that the dangers of natural accumulations are obvious; thus, the open-and-obvious-danger exception is contained within, and is part and parcel of, the natural accumulation rule. Paulson, 926 P.2d at 957. With this understanding in mind, we first address the personal representative's argument that the open-and-obvious-danger exception was abrogated in O'Donnell v. City of Casper, 696 P.2d 1278 (Wyo.1985). Her reliance on O'Donnell for this proposition is without merit. In that case, we discussed the viability of the exception in light of the adoption of comparative negligence. Mr. O'Donnell operated a motorcycle and encountered an accumulation of gravel remaining on the street from a resurfacing project performed by the City of Casper. We distinguished the facts in O'Donnell, an instance of injuries arising from a man-made cause, where the city placed gravel on the street and allowed it to accumulate in ridges and piles, from instances in which lability arises from natural causes. Subsequently, in Eiselein, we explained the effect of this distinction: "[In O'Donnell, wle did not conclude ... the comparative negligence statute completely abrogated the rule; rather, we indicated it modified the known and obvious danger rule, restricting its application to known and obvious dangers resulting from natural causes." 868 P.2d at 895. Rather than suggesting abrogation of the exception, our decisions since O'Donnell specifically confirm that, once it is determined the defendant owes a duty of care, the trier of fact may consider the open-and-obvious nature of a danger to determine a plaintiff's percentage of negligence. See Eiselein, 868 P.2d at 895-97. Stated another way, a defendant may present evidence of a plaintiff's negligence in order to reduce damages; however, this in no way defines or affects the seope of the defendant's initial duty.

"The adoption of comparative negligence ... does not abrogate the necessity of an initial finding that the premises owner owed a duty to invitees. Moreover, we find that the duty element and the comparative negligence standard are fundamentally exclusive-two doctrines to be utilized at different junctures in the determination of liability in a negligence cause of action."

Eiselein, 868 P.2d at 896 (quoting Riddle v. McLouth Steel Products Corporation, 440 Mich. 85, 485 N.W.2d 676, 681 (1992)). The court in the first instance must determine whether the defendant owed a duty of care as a matter of law or owed no duty because the danger was open and obvious and was not aggravated by the defendant. On the other hand, the court could conclude the question of duty-whether the danger was open and obvious or aggravated-hinges upon the determination of certain basic facts which must first be considered by the trier of fact.

[¶ 11] In this case, the district court concluded the same policy reasons exist for the element of wind as exist for the elements of ice and snow.

The justification for the natural-accumulation rule comports with the factors to be considered in determining the existence of a duty. The magnitude of the burden on defendant to prevent injuries from snow or ice is great.... [Nlatural winter conditions make it impossible to prevent all accidents. The plaintiff is in a much better position to prevent injuries from ice or snow because the plaintiff can take precautions at the very moment the conditions are encountered. Even if the plaintiff is unaware of the ice or snow he happens to slip on, he may be charged with knowledge that ice or snow is a common hazard in winter, one which he must consistently guard against.

Eiselein, 868 P.2d at 897-98; see also Selby, 990 P.2d at 494. Therefore, the rules should naturally be extended to include the natural effect of the wind:

"[A] proprietor is not considered negligent for allowing the natural accumulation of ice due to weather conditions where he has not created the condition. The conditions created by the elements, such as the forming of ice and falling of snow, are universally known and there is no liability where the danger is obvious or is as well known to the plaintiff as the property owner." Bluejacket [v. Carney, 550 P.2d 494], at 497 [ (Wyo.1976) ]. The rationale underlying this rule is that "in a climate where there are frequent snowstorms and sudden changes of temperature, these dangerous conditions appear with a frequency and suddenness which defy prevention and, usually, correction; consequently, the danger from ice and snow in such locations is an obvious one, and the occupier of the premises may expect that an invitee on his premises will discover and realize the danger and protect himself against it." 62A Am.Jur2d Premises Liability § 699 (1990).

Paulson, 926 P.2d at 957.

[¶ 12] We agree with the district court's statement:

Anyone who has ever lived anywhere in Wyoming knows that the wind and its potential severity are just as natural as the accumulation of ice and snow. The wind is an open and obvious danger. Probably the most common manifestation of that danger is in the opening of doors. The same policy reasons for the existence of the obvious danger rule and the natural accumulation rule apply equally to wind[.]

We conclude the terms of naturally occurring forces such as ice, snow, and wind can be used interchangeably in this court's social policy analysis. In general, the possibility of a sudden gust of wind, particularly in Wyoming, is an obvious danger foreseeable to anyone. A plaintiff is in a superior position to protect against hazards caused by wind at the moment it is encountered. A proprietor does not owe a duty of care to invitees to prevent the natural consequences of wind on his premises where he has not created or aggravated the naturally existing condition.

[¶ 13] However, a proprietor's affirmative action in dealing with a force of nature, such as wind, may alter the situation and give rise to the existence of a duty of care. In such an instance, the equities shift. The proprietor owes a duty to his business invitees to maintain his premises in a reasonably safe condition. Mostert v. CBL & Associates, 741 P.2d 1090, 1098 (Wyo.1987). "If the defendant creates the hazard, then it is within the defendant's control and he is in a better position to foresee and prevent injuries resulting from the hazard." Selby, 990 P.2d at 494. In this case, the issue remains, whether the proprietor's action of placing a sign on the door instructing specific action by customers altered the situation. The district court phrased and answered the issue as follows: "Simply stated, could a reasonable jury find that the Defendant acted negligently by placing a sign on its front door that said 'Please Hold Door Tight Due to Wind'? This Court finds that no reasonable jury could find that such a sign created a hazard." So stated, the district court correctly recognized VI-Doug's duty to its invitees to maintain the restaurant's premises in a reasonably safe condition. The district court also properly recognized that whether the sign created a hazardous condition was a jury question; however, it then decided reasonable minds could not differ that the sign did not violate the applicable duty of care. It is that ruling which we now review.

[¶ 14] VI-Doug maintains the posted sign did not cause Mrs. Miles to act any differently than she normally would have. However, such a statement is not an accurate characterization of her deposition testimony. Mrs. Miles' exact testimony was as follows:

Q. You mentioned having seen the sign-
A. Yes.
Q. -on the door.
A. Yes.
Q. Did that cause you to do something that you normally wouldn't do?
A. No, because I had seen that sign before.

An appropriate question for determination by the finder of fact is whether, in the absence of the sign directing Mrs. Miles to hold the door tightly, she independently would have acted to hold on tightly to the door. If, however, she held on tightly because she was simply following the directions provided, the finder of fact must determine whether following those directions increased the risk of injury. The question whether a hazardous condition was created when VI-Doug placed the sign on the door directing patrons to take specific action is one of basic fact which the trier of fact must determine.

[¶ 15] The general rule is that one who voluntarily assumes a duty must perform the duty with reasonable care.

A person who gratuitously undertakes to warn someone of a dangerous condition must use reasonable care in making the warning, but that person is not subject to liability unless a failure to exercise reasonable care increases the risk of harm to those he is trying to aid, or if harm is suffered because of another's reliance on the undertaking.

57A Am.Jur2d Negligence § 384 at 8380 (1989). In Codd v. Stevens Pass, Inc., 45 Wash.App. 393, 725 P.2d 1008, 1010 (1986), the decedent caught his ski tips on a mogul and plummeted head first into another mogul, likely hitting his head on a snow covered rock. The appellant maintained the ski operator negligently warned the decedent when it sectioned off a jump downhill from the accident site because the warning gave skiers the impression the accident area had been inspected for hazards. The Washington Court of Appeals found a triable issue of fact and stated: "One who attempts, albeit gratuitously, to warn a person in danger must do so with reasonable care. If his failure to exercise such care results in an increased risk of harm, he is liable for any physical damage which the reliance causes." 725 P.2d at 1014. Although Codd involved a dissimilar factual situation, we believe adherence to the principles reviewed in that case and in 57A Am. Jur. 2d Negligence, supra, is appropriate. When those principles are applied, a triable issue of fact exists in this case.

[¶ 16] We conclude material facts are at issue with regard to whether VI-Doug maintained the restaurant's premises in a reasonably safe condition which preclude disposing of this matter by summary judgment. A jury must determine whether VI-Doug (1) created a hazardous situation by directing patrons to take specific action; (2) knew or should have known the directions given could create a hazard to patrons; and, finally, (8) by giving directions, created a hazardous condition substantially more dangerous than it would have been in the absence of the directions. Therefore, this case must be submitted to a jury.

[¶ 17] Affirmed in part, reversed in part, and remanded.

SPANGLER, District Judge (Retired),

concurring in part and dissenting in part.

[¶ 18] I agree that the summary judgment should be reversed. I do not agree that the issue on remand should be whether VI-Doug is liable for gratuitously posting an allegedly unsafe warning.

[¶ 19] The issue of property owner liability has produced a series of irreconcilable decisions in Wyoming. This is partly due to the application of two rules that are not in the public interest. The first rule is that the owner or occupier of the premises has no obligation to protect invitees against open and obvious dangers. The second rule is that owners and occupiers are not liable for injuries caused by natural accumulations of ice and snow. The case of O'Donnell v. City of Casper, 696 P.2d 1278 (Wyo.1985), limited the open-and-obvious-danger rule to situations where the danger results from the natural accumulation of ice and snow.

[¶ 20] The open-and-obvious-danger rule is contrary to Wyoming's comparative negligence law. The effect of the rule is to dismiss the case when the plaintiff may be negligent, without comparing the negligence of the actors.

[¶ 21] The majority opinion incorrectly says that the open-and-obvious-danger rule has nothing to do with negligence but defines the duty owed by a defendant to a plaintiff. It is an essential element in all tort causes of action that the defendant owes a duty to the plaintiff. The duty is that of the defendant to the class occupied by the plaintiff, as in the duty owed by a doctor to his or her patient. The duty element in this case was correctly defined earlier in the majority opinion: "As a general rule, a possessor of land owes a duty to his business invitees to maintain his premises in a reasonably safe condition." Eiselein v. K-Mart, Inc., 868 P.2d 893, 895 (Wyo.1994). There is no issue about duty in this case.

[¶ 22] The open-and-obvious-danger and snow-and-ice rules are about negligence, not about duty. One rule says that the personal representative is barred from recovery because of Mrs. Miles' negligent conduct in unreasonably proceeding in the face of an open and obvious danger. The other rule says that VI-Doug is not negligent because it cannot reasonably be expected to remove snow and ice from its premises.

[¶ 23] The rules are contrary to public policy. They discourage property owners from removing or mitigating dangerous conditions. If the owner lets snow and ice accumulate, he is not liable. But if he attempts to remove it, he loses his immunity.

[¶ 24] The ruling in this case demonstrates the policy shortcomings. The case against VI-Doug continues only because it placed an informational or warning sign on the door. The personal representative apparently is precluded from raising what could be a much more important allegation, which is that VI-Doug allowed the door to blow dangerously in the wind for an extended time.

[¶ 25] Application of these rules has produced decisions which cannot be reconciled. The majority opinion in this case says that walking in the front door of a Village Inn Restaurant is to proceed in the face of an open and obvious danger. But in the O'Don-mell case, the court did not find that there was an open and obvious danger in driving a motorcycle on a street covered with piles of loose gravel.

[¶ 26] Similarly, the cases of Eiselein, 868 P.2d 893, and Selby v. Conquistador Apartments, Ltd., 990 P.2d 491 (Wyo.1999), involved plaintiffs slipping and falling on snow and ice in parking lots. The Eiselein case was dismissed even though there were indentations in the paving. The Selby case survived only because there was a dumpster on the parking lot.

[¶ 27] From this experience, we can see that one of the difficulties in applying these rules is in defining a "natural" condition. Are wind, ice, and snow "natural" onee they have landed on a parking lot or are battering a doorway?

[¶ 28] We should abrogate the "open-and-obvious-danger" and "snow-and-ice" rules. Instead, a plaintiff's cause of action in all cases against owners and occupiers of property, including landlord and tenant cases, should consist of the following elements: (1) The plaintiff was lawfully on the premises; (2) there was an unreasonably dangerous condition on the property; (8) the owner or possessor knew of the dangerous condition or should have known through the exercise of reasonable diligence; (4) the owner or possessor did not take reasonable action to mitigate or remove the danger; and, (5) as a result, the plaintiff suffered legally compen-sable injuries.

      . Mrs. Miles died on April 26, 2001, and the district court appointed Catherine A. Valance as her personal representative to continue with this action. The Supreme Court entered an order on August 3, 2001, allowing the substitution of Ms. Valance as appellant for Mrs. Miles in this matter.


author: ROGERS, District Judge.

text:
    2002 WY 114
    Lester A. GORE and Kathleen E. Gore, Appellants (Plaintiffs), v. Donald N. SHERARD, Stephen N. Sherard, Rex E. Johnson; Flying 13 Land Co.; and 121 Land Company, Inc., Appellees (Defendants).
    No. 01-136.
    Supreme Court of Wyoming.
    July 19, 2002.

      Representing Appellants: Fred W. Phifer, Wheatland, WY. Argument by Mr. Phifer.
    Representing Appellees Sherards and Johnson: Paul J. Hickey and Roger C. Fran-sen of Hickey, Mackey, Evans and Walker, Cheyenne, WY. Argument by Mr. Hickey.
    Representing Appellees Flying 18 Land Co. and 121 Land Co.: Douglas W. Weaver, Wheatland, WY. Argument by Mr. Weaver.
    Before HILL, C.J., and GOLDEN, LEHMAN, and KITE, JJ., and ROGERS, D.J.

       Chief Justice at time of oral argument.

   ROGERS, District Judge.

[¶ 1] At the close of appellants' case, the trial court granted the appellees' motion for a directed verdict, more properly referred to as a judgment as a matter of law. W.R.C.P. 50(a). From that order this appeal has been taken.

[¶ 2] We affirm the trial court's decision as herein modified.

ISSUES

[¶ 3] Appellants state the issues as follows:

1. Did the Trial Court err when it directed verdict in favor of the Appellees finding that there were no questions of fact for a jury to decide?
2. Did the Trial Court err when it allowed hearsay testimony from a witness which contradicted the sworn testimony of the individual who originally made the statement?
3. Did the Trial Court err in awarding costs not allowed by the U.R.D.C. Rule 501 or that the Wyoming Supreme Court previously determined were not taxable as costs?
4. Did the Trial Court err in finding there was no valid contract or business expectancy between the Appellants and Virginia Gibb after 20 years of leasing the property and the improvements placed on the property during that time?

Appellees state the issues:

I. Did the trial court properly grant the appellees' motion for judgment as a matter of law at the conclusion of the appellants' direct case?
II. Did the trial court err by allowing trial testimony of Don Sherard which was solicited by appellants' counsel?
III. Did the district court err in awarding costs?

FACTS

[¶ 4] Appellants Lester and Kathleen Gore (the Gores) moved onto the Donaldson Ranch (the ranch) in Platte County, Wyoming in November 1973 as subleasees, and continued to live on the 2,339 acre ranch until the time of trial. In 1976, the Gores executed a written lease with a six-year term with the then owner of the ranch, Ross Donaldson. The Gores moved a mobile home onto a permanent foundation on the ranch in 1973 and lived there to the date of trial. The Gores thereafter executed a series of written and oral leases with the owners of the ranch through the spring of 1996. The last written lease executed by the Gores ended in 1998. The ownership of the ranch changed as the years passed after the death of Ross Donaldson. In 1996 and until the ranch sold in 1997, Virginia Gibb owned a two-thirds interest in the ranch, and the remaining one-third interest was owned by her nephews, primarily James Donaldson, with a minor interest owned by Russell Donaldson (the Donald-sons).

[¶ 5] The Gores used the ranch for a cattle operation. The rent paid by the Gores was gradually increased over the years to the annual amount of $6,000, which rent was seldom paid on time and was usually paid in the fall after cattle were sold. Some of the written leases had contained options to purchase and/or rights of first refusal granted to the Gores, none of which had ever been exercised. The Gores made many improvements to the ranch over the years. Buildings were repaired, fences built, and wells drilled. Some rent was excused in payment for some of the improvements made by the Gores.

[¶ 6] In August of 1996, the Gores were occupying the ranch. They had not paid any rent for 1996, and the leases of the ranch had always commenced on May 15 of each year. Lester Gore inquired of Virginia Gibb in August 1996 as to whether she was interested in selling the ranch to him, and she replied she was not. Virginia Gibb and Lester Gore discussed a new written lease at lunch and then went to the office of Mrs. Gibb's attorney, defendant Stephen N. Sherard, where the discussion continued. Stephen Sherard thereafter prepared a draft of a lease agreement which he thought contained the terms agreed to by Gibb and Lester Gore, including a one-year term and no option to purchase. Lester Gore did not agree with the terms of the draft lease and so informed Stephen Sherard, who communicated with his client, Virginia Gibb, drew another lease, and wrote Lester Gore, informing him that Virginia Gibb insisted on a one-year lease term. This second draft of the lease contained an option price of $200 per acre. Sherard forwarded the second draft to Virginia Gibb, Lester Gore, and James Donaldson. James Donaldson signed the lease and returned it to Sherard. It was never signed by Virginia Gibb and Lester Gore. In the fall of 1996, Lester Gore had a lease drafted by his attorney and presented it to Virginia Gibb, who refused to sign it. Lester Gore never spoke to Virginia Gibb from December 1996 until April 1997; and, by his own admission, the negotiations for a new lease had come to a standstill in the fall of 1996. Stephen Sherard never heard back from Gibb and Gore and assumed that the deal was over. Stephen Sherard had no further contact with Virginia Gibb regarding the lease agreement.

[¶ 7] In March 1997, Virginia Gibb went to see defendant Donald N. Sherard at his office -for advice concerning a eredit card problem. During their conversation, Gibb complained to Don Sherard that the Gores had not paid her the rent for the ranch and that she was anxious to sell the ranch and to separate herself from the relationship with the Gores. Don Sherard expressed interest in the ranch and obtained instructions from Gibb on how to contact James Donaldson, which Sherard then did. Don Sherard then reviewed some of the prior lease documents and consulted with his son, Stephen Sherard, and their law partner, defendant Rex E. Johnson, about the purchase of the ranch. The three lawyers, through the two defendant corporations owned by them, then purchased the ranch from Virginia Gibb and the Donaldsons in early April 1997 for $350,000, paid the $6,000 rent due from the Gores, and took an assignment of the right to collect the rent from the Gores.

[¶ 8] Rex Johnson then called Lester Gore and informed him of the sale and that $6,000 in rent was due. During that conversation, Lester Gore acknowledged to Johnson that he did not have a lease on the ranch. Johnson and Gore agreed that the Gores could remain on the ranch until September 1, 1997, and that Johnson could pasture some cattle on the ranch during the summer of 1997. The Gores paid the rent in late April 1997.

[¶ 9] Lester Gore then obtained financing and bought the ranch from the defendant corporations in late June 1997 for $600,000. The Gores immediately placed the ranch on the market and subsequently sold it, along with a small neighboring ranch, for $1,400,000, $1,100,000 of which was allocated to the Donaldson ranch.

[¶ 10] The Gores thereafter filed this action against the three lawyers, their law firm, and the two corporations, seeking damages for tortious interference with a contractual relationship and business expectancy and punitive damages. Following the presentation of plaintiffs' case in chief at the trial, the trial court granted defendants' motion for judgment as a matter of law.

STANDARD OF REVIEW

[¶ 11] This court has previously explained the standard that applies for review of a trial court's decision to grant a motion for judgment as a matter of law:

In reviewing a judgment as a matter of law, we evaluate the record without affording deference to the trial court's views. John Q. Hammons Inc. v. Poletis, 954 P.2d 1353, 1356 (Wyo.1998); Hatch v. State Farm Fire and Casualty Company, 930 P.2d 382, 395 (Wyo.1997). A judgment as a matter of law is appropriate when reasonable jurors could reach but one conclusion as to the verdiet. Hatch, 930 P.2d at 395. We regard the nonmoving party's evidence as being true, and we give that party the benefit of all reasonable inferences that may be drawn from the evidence. Garaman, Inc. v. Williams, 912 P.2d 1121, 1123 (Wyo.1996). Additionally, we do not weigh the evidence or assess the credibility of the witnesses. John Q. Hammons Inc., 954 P.2d at 1856. A judgment as a matter of law deprives the opposing party of the opportunity to have the jury determine the facts, and the court should, therefore, use caution in granting such a judgment. Id.; Hatch, 930 P.2d at 395.

Anderson v. Duncan, 968 P2d 440, 442 (Wyo.1998). More recently this court has said:

Our standard of review is the same whether it arises in the procedural context of a motion for judgment as a matter of law prior to the submission of the case to the jury (formerly, a motion for a directed verdict) or in the context of a renewed motion for judgment as a matter of law after the jury has returned a verdict (formerly, a motion for judgment notwithstanding the verdict). We undertake a full review of the record without deference to the views of the trial court. The test to be applied is whether the evidence is such that, without weighing the credibility of the witnesses or otherwise considering the weight of the evidence, there can be but one conclusion as to the verdict that reasonable persons could have reached. We view the evidence in the light most favorable to the nonmoving party, and give that party the benefit of all reasonable inferences that may be drawn from the evidence. When the facts permit the drawing of more than one inference, it is for the jury to choose which will be utilized. Since a judgment as a matter of law deprives the party opposing the motion of a determination of the facts by a jury, it should be cautiously and sparingly granted.

Rudy v. Bossard, 997 P.2d 480, 485 (Wyo.2000), quoting John Q. Hammons Inc. v. Poletis, 954 P.2d 1353, 1356 (Wyo.1998) (citations and footnote omitted).

DISCUSSION

1. INTENTIONAL OR TORTIOUS INTERFERENCE WITH A CONTRACT OR PROSPECTIVE ECONOMIC ADVANTAGE

[¶ 12]) Intentional or tortious interference with a contract is defined as:

One who intentionally and improperly interferes with the performance of a contract (except a contract to marry) between another and a third person by inducing or otherwise causing the third person not to perform the contract, is subject to liability to the other for the pecuniary loss resulting to the other from the failure of the third person to perform the contract.

Bear v. Volunteers of America, Wyoming, Inc., 964 P.2d 1245, 1253 (Wyo.1998), citing Restatement, Second, Torts § 766 at 7 (1979). See also Davenport v. Epperly, 744 P.2d 1110, 1111-12 (Wyo.1987); Toltec Watershed Improvement District v. Johnston, 717 P.2d 808, 813 (Wyo.1986).

[¶ 13] This court has previously set out the elements that must be proved to support a claim for tortious interference with a contract or business expectancy.

In Wyoming, the following elements must be demonstrated to sustain a cause of action for tortious interference with a contract or prospective economic advantage: (1) The existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferer; (8) intentional and improper interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted.

Fremont Homes, Inc. v. Elmer, 974 P.2d 952, 955 fn. 1 (Wyo.1999); see also Examination Management Servs., Inc. v. Kirschbaum, 927 P.2d 686, 697 (Wyo.1996); Dynan v. Rocky Mountain Fed. Sav. & Loan, 792 P.2d 631, 641 (Wyo.1990); Toltec Watershed Improvement Dist. v. Johnston, 717 P.2d at 813-14.

[¶ 14]) The plaintiff has the burden of proving the four elements of intentional or tortious interference with a contract. Bear v. Volunteers of America, Wyoming, Inc., 964 P.2d at 1253. Whether interference with a contract was improper is a question of fact. Examination Management Servs., 927 P.2d at 698. At trial Gores failed to present evidence which would support a finding that a valid contractual relationship or business expectancy existed for purchase of the Donaldson Ranch, much less that appellees knew of any such contractual relationship or business expectancy or intended to interfere with it.

[¶ 15] The evidence developed by Gores at the trial was that the oral lease between the parties had expired, contract negotiations had stalled and had not proceeded for months, that there was no meeting of the minds or agreement on the terms of any future contract, and that Sherards and Johnson did not know of any contractual relationship or business expectancy. The Gores' unilateral belief and hope that a contact would result was inadequate to sustain a cause of action. A reasonable probability of a contract is shown if there is a reasonable assurance of a contract in view of all the circumstances. In this case there was no such reasonable probability.

[¶ 16] In fully reviewing the record without deference to the views of the trial court, viewing the evidence in the light most favorable to the Gores, and giving Gores the benefit of all favorable inferences which may be drawn from the evidence, it is clear that Gores very simply failed to meet their burden of proof of the four elements of a cause of action for tortious interference with a contractual relationship or business expectancy. The trial court was fully justified in granting the motion for judgment as a matter of law because reasonable jurors could have reached but one conclusion as to the verdict.

2. HEARSAY TESTIMONY

[¶ 17] Gores argue that the trial court erred when it allowed hearsay testimony from a witness which contradicted the sworn testimony of the individual who originally made the statement. The testimony in question was elicited by counsel for the Gores in his cross examination of Don Sher-ard, during which counsel asked Mr. Sherard to tell him the substance of his conversation with Virginia Gibb about the purchase of the Donaldson Ranch. Mr. Sherard responded to the question and related some of his conversation with Gibb, at which point the trial court interjected with the observation that the testimony was hearsay and directed counsel to proceed with his next question. After the trial court's comment, Gores' counsel elicited additional testimony from Don Sherard. Counsel did not object in any way to this testimony at the trial, nor did he ask for it to be stricken. Counsel for appellants now challenges the testimony for the first time on appeal. All of the disputed testimony was a fair response to the questions asked by Gores' counsel.

[¶ 18] Hearsay evidence admitted without objection may be considered and given its natural probative effect. Meredith GMC, Inc. v. Garner, 78 Wyo. 396, 328 P.2d 371, 374 (1958). Having elicited the "hearsay" testimony by his own questioning, without objecting thereto or moving to strike, counsel cannot now come to this court and complain about its admissibility.

3. COSTS

[¶ 19] Gores argue that the trial court erred in awarding certain costs. After the trial court granted their motion for judgment as a matter of law, appellees sought costs in the amount of $8,594.78. The parties briefed the issues regarding costs and, after conducting a hearing, the trial court awarded appel-lees the sum of $1,728.21 in costs. Gores now challenge that portion of those costs dealing with the depositions of Lester Gore and James Donaldson, a transeript of a motion hearing, as well as certain appearance fees for court reporters and duplicating costs.

[¶ 20] An award of costs is reviewed for an abuse of discretion. Snyder v. Lovercheck, 992 P.2d 1079, 1084 (Wyo.1999); Coulthard v. Cossairt, 803 P.2d 86, 93 (Wyo.1990).

We recently clarified the definition of abuse of discretion when we said the 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 cireumstances 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] at 353 [(Wyo.1995)]. We must ask ourselves whether the district court could reasonably conclude as it did and whether any facet of its ruling was arbitrary or capricious.

Snyder v. Lovercheck, 2001 WY 64, ¶ 6, 27 P.3d 695, ¶ 6 (Wyo.2001), citing Cobb v. Cobb, 2 P.3d 578, 579 (Wyo.2000) (quoting Thomas v. Thomas, 983 P.2d 717, 719 (Wyo.1999)).

[¶ 21] Gores argue that the award of the deposition costs was contrary to the provisions of W.U.R.D.C. IV). Gores fail to take cognizance of the qualifying phrase that follows the enumeration in those subsections of the rule to the effect that those criteria are guidelines and are not exhaustive. Snyder v. Lovercheck, 2001 WY 64 at ¶ 15. In the order awarding costs, the trial court found the costs of these depositions (as well as the other costs) "were reasonable and necessary in defending this action [and] were required for trial preparation." The record discloses that appellees made use of the transcript of the Lester Gore deposition for impeachment during the cross examination of Mr. Gore. The trial court did not abuse its discretion in the award of the deposition costs for the Gore and Donaldson depositions.

[¶ 22] Gores' objection to the cost of the transcript of the March 24, 2000 motion hearing transcribing the testimony of Virginia Gibb is not well taken. Gores had filed a motion seeking a restraining order to restrict the lawyers' contact with Virginia Gibb during the litigation. The trial court held a hearing on that issue on March 24, 2000, and the court and counsel elicited testimony from Mrs. Gibb which was transcribed. Appellees then attached the transcript as Exhibit 2 to their Second Supplemental Submission in Support of Defendants' Motion for Summary Judgment. The transcript is part of the record on appeal before this court and appears at pages 688-658 of that record. It was, therefore, not an abuse of discretion by the trial court to award appellees their costs in the preparation of the transcript of the testimony of Virginia Gibb.

[¶ 23] The provisions of W.U.R.D.C. 501(a)(B)(D)@Gi) do not contain a qualifying clause and are mandatory. The rule is specific in its provisions concerning the fees for depositions: "Reporters' travel, per diem expenses and appearance fees will not be taxed as costs." (Emphasis added.) Therefore, the trial court's award of appearance fees for court reporters at depositions in the total amount of $95.00 was not appropriate and the award of costs should be modified and reduced by that amount. There was no abuse of discretion by the trial court in awarding $68.26 for copy costs.

CONCLUSION

[¶ 24] The trial court properly granted the appellees' motion for judgment as a matter of law at the conclusion of appellants' case in chief. Appellants completely failed to prove the necessary elements of a cause of action for tortious interference with a contract or business expectancy. The trial court did not err in allowing hearsay evidence which was elicited by counsel for appellants. The trial court did not abuse its discretion in awarding costs for depositions, a motion hearing, and copy costs. The trial court's award of court reporter deposition appearance fees was not appropriate, and the award of costs should be reduced by $95.00.

[¶ 25] Affirmed as modified as to costs.


author: KITE, Justice. GOLDEN, Justice,

text:
    2002 WY 116
    Gary BAKER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-198.
    Supreme Court of Wyoming.
    July 29, 2002.

      Carol Seeger of Carter Law Office, Gillette, WY, Representing Appellant.
    Charlene Lynde and James P. Schermet-zler of the County and Prosecuting Attorney's Office in and for Campbell County, Gillette, WY, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of expedited conference.

   KITE, Justice.

[¶ 1] A police officer found Gary Baker pacing back and forth in the road at the end of an overpass in Gillette: Mr. Baker was sunburned, dehydrated, disheveled, and disoriented. Initially unable to identify himself, he ultimately told the officer his name and that he had walked there from his home in Sheridan. The county attorney filed an application for involuntary hospitalization, and a jury found Mr. Baker was mentally ill. The trial court determined the least restrictive and most therapeutic alternative for Mr. Baker would be hospitalization at the Wyoming State Hospital. Mr. Baker appealed the decision, claiming the trial court erred in admitting evidence of his history of mental illness and prior hospitalizations and in selecting the Wyoming State Hospital as the least restrictive alternative. We affirm.

ISSUES

[¶ 2] Mr. Baker presents the following issues for our review:

Issue 1; Did the trial court err in admitting evidence of the appellant's prior history of mental illness and hospitalizations at the Wyoming State Hospital to determine whether by recent acts or omissions the appellant was a danger to himself or others[?]
Issue 2; Did the trial court abuse its discretion in selecting the Wyoming State Hospital as the least restrictive and most therapeutic alternative for treatment[?]

The State of Wyoming phrases the issues as:

I. Did the trial court abuse its discretion when it allowed the state to present testimony of the appellant[']s prior history of mental illness and hospitalizations[?]
II. Did the trial court err in committing the appellant to the Wyoming State Hospital[?]

FACTS

[¶ 3] On June 12, 2001, Mark Ziska, an officer with the Gillette police department, discovered Mr. Baker pacing back and forth in the traffic lane on an overpass in Gillette. When the officer asked him who he was and whether he was okay, Mr. Baker responded, "I don't know." The officer observed he was badly sunburned, dirty, and disoriented. UI-timately, Mr. Baker identified himself and indicated he was from Sheridan. The officer called for an ambulance to assist in transporting Mr. Baker to the hospital. Mr. Baker initially cooperated with the police and the medical personnel in getting into the ambulance. However, after the ambulance began to move, he tried to open the doors and had to be handcuffed for his safety. At the hospital, Mr. Baker was very suspicious and unable to comprehend why he was there. Within a short time after being admitted, he left the hospital, was again found by the same officer near the interstate, and was returned to the hospital.

[¶ 4] The county attorney filed an application for involuntary hospitalization, and the court appointed counsel to represent Mr. Baker, A preliminary hearing on the initial detention pursuant to Wyo. Stat. Ann. § 25-10-109(h) (LexisNexis 2001) was held on June 15, 2001. The trial court concluded Mr. Baker was mentally ill and would be a danger to himself unless he received prompt and adequate treatment. The court ordered that he remain in the hospital and follow his physician's orders concerning the psychotropic medication which had been prescribed.

[¶ 5] A jury trial on the application for involuntary hospitalization was held on June 28, 2001. Evidence presented by the state included testimony from the police officer who discovered Mr. Baker on the roadway and brought him to the hospital, a psychiatrist who examined Mr. Baker, the court appointed guardian, the therapist and case manager, and Mr. Baker. Officer Ziska de-seribed his encounter with Mr. Baker and Mr. Baker's disoriented state and attempts to resist care. Patrick Buchanan, M.D. provided a summary of Mr. Baker's previous hospitalizations and stated he agreed with the Wyoming State Hospital's paranoid schizophrenia diagnosis. Dr. Buchanan further testified that, in his opinion, Mr. Baker posed a danger to himself under the terms of the statute because he was unable or unwilling to take his prescribed medication. He described the pattern of behavior Mr. Baker exhibited over the years which resulted in recurring cycles of stabilization of his condition with proper medication and deterioration of his ability to care for himself and maintain his medication upon release or elopement from institutional care. Susan Mydland, Mr. Baker's appointed guardian when he was declared incompetent in 1994, also testified to this recurring pattern. Brian McKenzie, a mental health professional with Northern Wyoming Mental Health Center, provided additional information concerning his experience with Mr. Baker when he did attempt to live independently in Sheridan. Mr. McKenzie explained that the records demonstrated the same pattern has been occurring since Mr. Baker was twenty years old. Mr. Baker was hospitalized seven times in the Wyoming State Hospital and three times in community mental health units.

[¶ 6] Throughout the trial, Mr. Baker's counsel objected to any testimony concerning the prior hospitalizations arguing the statutory definition of "dangerous to himself" required recent acts. See Wyo. Stat. Ann. § 25-10-10l(aq)@M(C) (LexisNexis 2001). The trial court overruled the objections because Dr. Buchanan and the other professionals relied upon the prior hospitalizations for their opinions and they were necessary for the jury to understand Mr. Baker's condition. The jury found Mr. Baker was mentally ill, and the trial court ordered that he be hospitalized at the Wyoming State Hospital as the least restrictive and most therapeutic alternative pursuant to Wyo. Stat. Ann. § 25-10-110(j) (LexisNexis 2001).

DISCUSSION

[¶ 7] Mr. Baker contends the trial court erred in admitting evidence concerning the history of his mental illness and prior hospitalizations. Admission of evidence is within the trial court's sound discretion, and we will not disturb the trial court's ruling absent a clear abuse of discretion. Munoz v. State, 849 P.2d 1299, 1800 (Wyo.1998). We have described the standard of an abuse of discretion as reaching the question of the reasonableness of the trial court's choice. Griswold v. State, 2001 WY 14, ¶ 7, 17 P.3d 728, ¶ 7 (Wyo.2001). Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the cireum-stances and without doing so arbitrarily or capriciously. Id. We agree with the trial court that Mr. Baker's medical history not only was properly admitted into evidence but was essential to understanding his illness and determining the appropriate alternative.

[¶ 8] The Wyoming statutes define mental illness as "a physical, emotional, mental or behavioral disorder which causes a person to be dangerous to himself or others and which requires treatment." Wyo. Stat. Ann. § 25-10-101(a)(ix) (LexisNexis 2001). A person is deemed a danger to himself or others if he:

(A) Evidences a substantial probability of physical harm to himself as manifested by evidence of recent threats of or attempts at suicide or serious bodily harm; or
(B) Evidences a substantial probability of physical harm to other individuals as manifested by a recent overt homicidal act, attempt or threat or other violent act, attempt or threat which places others in reasonable fear of serious physical harm to them; or
(C) Evidences behavior manifested by recent acts or omissions that, due to mental illness, he is unable to satisfy basic needs for nourishment, essential medical care, shelter or safety so that a substantial probability exists that death, serious physical injury, serious physical debilitation, serious mental debilitation, destabilization from lack of or refusal to take prescribed psychotropic medications for a diagnosed condition or serious physical disease will imminently ensue, unless the individual receives prompt and adequate treatment for this mental illness. No person, however, shall be deemed to be unable to satisfy his need for nourishment, essential medical care, shelter or safety if he is able to satisfy those needs with the supervision and assistance of others who are willing and available.

Wyo. Stat. Ann. § 25-10-10l1(a)@i) (Lexis-Nexis 2001).

[T9] Subparagraph (C) is applicable to Mr. Baker's case. The evidence overwhelmingly supported a finding of mental illness because recent acts or omissions demonstrated Mr. Baker was unable to satisfy his need for medical care so that serious mental destabilization from his refusal to take psychotropic medications for his diagnosed condition had occurred. In December 1999, he was living with his ill mother in her home when she decided to move into a nursing home. He attempted to prevent her from moving and, when he was unsuccessful, became obsessed with visiting her many times a day, being increasingly paranoid and blaming law enforcement and the mental health center for his mother's departure. The mental health center staff atterapted to facilitate his visits, but, ultimately, he barricaded himself in his mother's room and was arrested for trespass. That incident resulted in his return to the Wyoming State Hospital. In November 2000, he fled the state hospital, and the mental health staff was informed he was most likely returning to Sheridan. His mother had passed away, and her home was locked and vacant while her estate was being closed. The mental health staff found him in the home disheveled, disoriented, and gaunt with no money or food. They immediately arranged for his care and medication, and his condition, onee again, improved. However, the mental health staff could not foree Mr. Baker to take his medication or comply with his care plan. To insure he took the medication, they encouraged him to take it in front of them. His appearance and behavior immediately improved for a time. However, within a few months, the mental health staff began to notice another deterioration. Mr. Baker avoided them, refused to answer the door, and resisted any assistance. In March 2000, he was arrested for driving under the influence of alcohol. The mental health staff noticed other evidence of his aleohol use, and he was counseled that the alcohol would aggravate his symptoms and should not be used with his medication. In early May 2000, they warned him that, if he continued to resist cooperating with his care plan, another involuntary hospitalization would be a possibility. On May 21, 2000, his mental health caseworker visited him and found the home was filled with garbage, had damaged walls, and was in a general state of disarray. A few weeks later, another visit exposed even worse conditions. Shortly thereafter, Mr. Baker was found in Gillette and hospitalized. The record unquestionably supported a finding that recent acts demonstrated Mr. Baker was a danger to himself because of his inability to maintain his medication.

[¶ 10] While requiring evidence of recent acts of endangerment, the statute does not prohibit courts from considering a person's mental health history in determining whether involuntary hospitalization is warranted. In fact, to do so would be obviously ill-advised. Such history was critical to the professionals' opinions concerning whether Mr. Baker could care for himself over time. Mr. Baker cites no authority to support his claim that admission of such evidence was error. Other courts have seen the wisdom of allowing introduction of a proposed patient's history in proceedings involving involuntary hospitalization. In re Mental Health of D.R.S., 221 Mont. 245, 718 P.2d 335, 338 (1986); In re Mental Health of D.B., 218 Mont. 467, 709 P.2d 161, 162 (1985) (both cases held evidence of past behavior can be material and relevant to a person's present condition). We conclude the trial court properly allowed evidence concerning Mr. Baker's mental health history.

[¶ 11] Mr. Baker further contends the trial court erred in determining hospitalization in the Wyoming State Hospital was the least restrictive and most therapeutic alternative available. Our review of the trial court's placement decision centers on whether the trial court abused its discretion by disregarding either statutory or constitutional law in not requiring a more preferable level of care. K.C. v. State, 771 P.2d 774, 780-81 (Wyo.1989). The state presented ample evidence supporting the trial court's decision that further hospitalization was the only realistic alternative. The professionals testified Mr. Baker would be a danger to himself if he were allowed to live on his own. His mental health caseworker testified he did not believe his organization could give adequate support for Mr. Baker to maintain himself in a stabilized condition. Unfortunately, even though Mr. Baker had access to his mother's residence, his disease prevented him from living independently. The trial court had no option but to order that he be hospitalized in the Wyoming State Hospital. Therefore, we conclude the trial court did not abuse its discretion.

[¶ 12] Affirmed.

GOLDEN, Justice,

concurring.

[¶ 13] While I concur in the result reached by the majority, I reach it by a slightly different route. I believe the first issue calls into question the definition of "recent acts or omissions" as used in Wyo. Stat. Ann. § 25-10-10l(a)@(C). Fortunately, under the specific facts of this case, we need not indulge in any lengthy discourse on statutory interpretation. When Mr. Baker was picked up, he was sunburned, filthy, and disoriented. He resisted attempts by law enforcement and medical personnel to render aid to him and left the hospital against medical advice, only to be picked up again by law enforcement and returned to the hospital. These immediate acts clearly constitute "recent acts or omissions" that reflected the current inability by Mr. Baker to properly safeguard his mental and physical health. The statute is satisfied.

[¶ 14] The majority opinion, when speaking of "recent acts or omissions," refers to Mr. Baker's behaviors and actions as of December 1999. The majority opinion does not, however, provide any express analysis of the statutory phrase. It simply is unnecessary, under the facts of this case, to determine if those prior behaviors and acts can also be considered "recent" under the statute.

[¶ 15] As an evidentiary matter, the testimony regarding his prior behaviors and actions was relevant as supporting his current diagnosis and thus admissible. Paragraph ten of the majority opinion is the operative paragraph regarding the admissibility of the testimony. No abuse of discretion by the trial court in admitting such testimony is present.

[¶ 16] With regard to the second issue, Mr. Baker challenges his placement at the Wyoming State Hospital. Wyoming Statute § 25-10-110() requires a trial court to consider the least restrictive and most therapeutic alternatives, and the trial court did just that. After a hearing on the issue of placement, the trial court determined that the State Hospital is the least restrictive and most therapeutic alternative for Mr. Baker. While I understand Mr. Baker's frustration at being placed at seemingly the most restrictive setting, away from his home in Sheridan, the question regards the best possible placement for Mr. Baker under the cireumstances. This simply presents a sufficiency of the evidence issue. As such, our standard of review is highly deferential to the trial court. "We do not substitute ourselves for the trial court as a finder of facts; instead, we defer to those findings unless they are unsupported by the record or erroneous as a matter of law." Kendrick v. Barker, 2001 WY 2, ¶ 12, 15 P.3d 734, ¶ 12 (Wyo.2001).

[¶ 17] The record reveals that the guardian for Mr. Baker testified at the hearing on placement that, in conjunction with the current involuntary commitment proceedings, she had attempted to find an alternative, less restrictive placement for Mr. Baker. She inquired of several facilities, including the local mental health center in Sheridan, a supported independent living center in Cas-per and the outpatient program at the Wyoming State Hospital. None of these programs could adequately support the present needs of Mr. Baker. There was an adequate factual basis to support the decision of the trial court placing Mr. Baker at the Wyoming State Hospital as the least restrictive, most therapeutic setting under the current circumstances.

[T 18] The jury verdict and the placement order of the trial court are properly affirmed.

      . Section 25-10-110(j) (emphasis added) provides in pertinent part:
      (j) If, upon completion of the hearing and consideration of the record, the court or the jury finds by clear and convincing evidence that the proposed patient is mentally ill the court shall consider the least restrictive and most therapeutic alternatives, ...