author: KITE, Justice. GOLDEN, J.,

text:
    2002 WY 166
    Dale E. CARROLL, dba Project Consultants, Appellant (Defendant), v. Thomas W. BERGEN, Appellee (Plaintiff).
    No. 01-200.
    Supreme Court of Wyoming.
    Nov. 15, 2002.

      John D. Bowers of Bowers Law Office, P.C., Afton, Wyoming, Representing Appellant.
    M. Kevin Voyles of Luthi & Voyles, Thayne, Wyoming, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   KITE, Justice.

[¶ 1] Appellant Dale E. Carroll inspected a home Appellee Thomas W. Bergen was interested in buying and provided a report stating the house appeared to be “structurally sound.” Mr. Bergen bought the property and thereafter sued Mr. Carroll alleging he had relied on the report to purchase the house but later discovered additional repairs were necessary. After a bench trial, the trial court awarded Mr. Bergen a $14,954 judgment against Mr. Carroll, and this appeal followed. We reverse and remand for a new trial.

ISSUES

[¶ 2] We rephrase the issues:

1. Did a valid contract exist?
2. Was Mr. Carroll’s case unfairly prejudiced because Mr. Bergen was allowed to call a witness, not designated as an expert, to testify as a lay witness as to the industry standard for contracts and the need for repairs?
3. Was the damage award clearly erroneous because it was supported only by undesignated expert testimony?

FACTS

[¶ 3] On or about March 4, 1998, Mr. Bergen, through his real estate agent, Mary Fahringer of Real Estate of Star Valley, made an offer to purchase a house in Alpine. The offer had a provision permitting the buyer to obtain “electrical, mechanical, structural, environmental and/or other inspections of the Property by qualified professional inspectors and/or engineers.” The seller accepted the offer, and Mr. Bergen asked Ms. Fahringer to arrange a “home inspection.” She contacted Mr. Radford, the inspector for the Town of Alpine, who had performed several inspections for her in the past. Because he was going out of town, he referred her to Mr. Carroll.

[¶ 4] Ms. Fahringer contacted Mr. Carroll and asked him to perform a “home inspection,” which he agreed to do with the understanding he would be paid a fee and mileage. She did not specifically ask him to perform a “structural inspection,” nor did she explicitly communicate the nature of the inspection she wanted beyond requesting a “home inspection.”

[¶ 5] Ms. Fahringer was present for the roughly forty-five-minute home inspection during which she and the seller advised Mr. Carroll of a broken window and a leak in the downstairs bathtub. Mr. Carroll prepared a handwritten report after the inspection in which he stated in part:

I am pleased to have done the inspection on the above referenced home. I found the home to be structurally sound.
.... Roof supports strong, 12" log construction, caulked where necessary.

After reviewing the report, Ms. Fahringer called Mr. Carroll to advise him he had mistakenly indicated the house was built of solid log when it was actually constructed of structured insulated panels with log facing. Mr. Carroll rewrote the report so it was consistent with Ms. Fahringer’s information and indicated only two problems with the house: a crack in the window in the northwest end of the home and a leak in the upstairs bathtub. Thereafter, Mr. Carroll submitted an invoice for $46 that was never paid.

[¶ 6] Mr. Bergen never spoke to Mr. Carroll prior to the inspection and did not provide him with any instructions. Mr. Bergen received the home inspection report, completed the purchase, and moved into the house on approximately April 1, 1998. Upon taking possession, he began to notice problems which were not reflected in the inspection report such as a damaged deck board, a partially finished wall, gaps between the walls and the logs supporting the roof, a lack of insulation around window casings, a fireplace which did not draw properly, and a sagging floor.

[¶ 7] Robert Wagner of R & R Builders came to the house to build a dormer and noted additional problems. He determined the sag in the floor was caused by a lack of support which could be repaired by placing a concrete pier and a post in the crawl space. He also concluded there were problems with some of the girders and the porch was built with wood intended for interior, not exterior, use. In October of 1999, Mr. Wagner estimated the total cost of all the “repairs,” without any itemization, would not exceed $15,000. At trial in June of 2001, he testified, allegedly as a lay witness, over Mr. Carroll’s continuing objection that his testimony should be precluded because he was not designated as an expert witness pursuant to the prehearing scheduling order. Mr. Wagner testified the same repairs in 2001 would likely cost $17,000 due to increased material, labor, and overhead expenses. In answer to questions posed by the court, he also testified the Uniform Building Code (UBC) was the standard for most contracts and construction in the building industry.

[¶ 8] The other trial witnesses were the real estate agent, Mr. Bergen, and Mr. Carroll. The court found a contract existed and awarded Mr. Bergen judgment against Mr. Carroll for $14,954 ($15,000 less the $46 unpaid inspection fee) plus $45 in court costs. Mr. Carroll appealed contending the trial court erred in finding there was a valid contract; and, alternatively, if there was a contract, Mr. Carroll did not breach it; or, if a valid contract was breached, no damages were proved.

STANDARD OF REVIEW

[¶ 9] Our standard of review when a trial is held before the bench is well established:

The factual findings of a judge are not entitled to the limited review afforded a jury verdict. While the findings are presumptively correct, the appellate court may examine all of the properly admissible evidence in the record. Due regard is given to the opportunity of the trial judge to assess the credibility of the witnesses, and our review does not entail weighing disputed evidence. Findings of fact will not be set aside unless the findings are clearly erroneous. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. We review a district court’s conclusions of law de novo on appeal.

Springer v. Blue Cross and Blue Shield of Wyoming, 944 P.2d 1173, 1175-76 (Wyo.1997) (citations omitted); see also Saulcy Land Company v. Jones, 983 P.2d 1200, 1203 (Wyo.1999).

DISCUSSION

[¶ 10] “Whether an oral contract exists is a question of fact to be determined by the trier of fact.” Williams v. Dietz, 999 P.2d 642, 644 (Wyo.2000). The trial court found: “Plaintiff, through his real estate agent, contracted with Defendant to perform a home inspection on a home that Plaintiff was buying.” Mr. Carroll argues there was no valid contract because (1) the real estate agent made all the arrangements with him but was not authorized to enter into outside contracts on Mr. Bergen’s behalf, (2) there was no consideration because no payment was ever made for the “home inspection,” and (3) there was no mutual assent to the contract terms.

[¶ 11] The record demonstrates Mr. Bergen and Ms. Fahringer, for Real Estate of Star Valley, entered into an Exclusive Right-to-Buy Contract which provided in part that the real estate office/broker and agent would act to locate and secure property to meet the buyer’s needs. The contract expressly dealt with the broker/agent’s authority to obtain services from outside sources. This court has said:

Actual authority may be express or implied. An agent has express actual authority to bind the principal when the principal, orally or in writing, specifically grants the agent the power to bind the principal. Implied actual authority is established by the course of dealings between the parties and the circumstances surrounding the case.

Cargill, Incorporated v. Mountain Cement Company, 891 P.2d 57, 62 (Wyo.1995) (citations omitted). It is reasonable to infer the broker/agent had authority to obtain outside services. If such services were not obtained consistent with the contract’s terms, it is possible the buyer would have a claim against the broker/agent. However, there is no dispute between Mr. Bergen and the broker/agent regarding the manner in which Mr. Carroll’s services were secured. Therefore, this argument fails because Ms. Fahringer had authority to secure the home inspection that Mr. Bergen requested.

[¶ 12] Mr. Carroll promised to inspect and, as Mr. Bergen’s agent, Ms. Fah-ringer promised payment of his fee and mileage. Mr. Carroll asserts this exchange of promises did not constitute sufficient consideration for a valid contract because his $46 fee was not paid. We must disagree. For a contract to be valid, “[t]here must be an offer and acceptance along with bargained for and exchanged valuable consideration. Valuable consideration in this context may consist of [an] exchange of mutual promises, which promises impose a legal liability upon each promisor.” Kerper v. Kerper, 780 P.2d 923, 932 (Wyo.1989) (citation omitted). Consideration is described in the Restatement (Second) of Contracts:

(1) To constitute consideration, a performance or a return promise must be bargained for.
(2) A performance or return promise is bargained for if it is sought by the promi-sor in exchange for his promise and is given by the promisee in exchange for that promise.
(3) The performance may consist of
(a) an act other than a promise, or
(b) a forbearance, or
(c) the creation, modification, or destruction of a legal relation.
(4) The performance or return promise may be given to the promisor or to some other person. It may be given by the promisee or by some other person.

1 Restatement (Second) of Contracts § 71 at 172 (1981). The promise to pay for the inspection and mileage constitutes valuable consideration. Mr. Bergen’s failure to pay the fee was a breach of his promise to pay and, consequently, an actionable breach of the contract. The subsequent breach notwithstanding, the mutual exchange of promises was sufficient consideration to support a valid contract.

[¶ 13] Mr. Carroll’s inspection report that the home was “structurally sound” is proof of his belief a contract existed. “A contract comes into being when there is a meeting of the minds concerning the terms of the agreement. The existence of a contract depends upon the intent of the parties and presents the trial court with a question of fact.” Anderson Excavating and Wrecking Company v. Certified Welding Corporation, 769 P.2d 887, 889 (Wyo.1988) (citation omitted); see also Raymond v. Steen, 882 P.2d 852, 856 (Wyo.1994).

“ ‘[0]n appeal, the Supreme Court assumes that evidence in favor of the successful party is true, leaves out of consideration entirely the conflicting evidence presented by the unsuccessful party, and gives the evidence of the successful party every favorable inference that may reasonably and fairly be drawn from it. Furthermore, a reviewing court cannot substitute its judgment of the facts for that of the trial court unless the trial court’s judgment is clearly erroneous or contrary to the great weight of the evidence.’ ” McCormick v. McCormick, 926 P.2d 360, 362 (Wyo.1996) (quoting Wyoming Sawmills, Inc. v. Morris, 756 P.2d 774, 775 (Wyo.1988)). The party who alleges that a contract exists bears the burden of proving the terms of that 'contract.
... It is well established that courts do not have the power to supply indefinite terms.

Williams, 999 P.2d at 644-45 (citation omitted).

[¶ 14] The problem in this case is the dispute over the terms of the contract. Only Mr. Carroll and Ms. Fahringer communicated about the inspection. Mr. Bergen never spoke with Mr. Carroll. Ms. Fahringer testified:

Q. Did Mr. Bergen ask you to obtain a home inspection?
A. Yes, he did. He was — we have dates filled in and times on that contract that an inspector was coming in to inspect.
Q. And what did he ask you to do?
A. He asked me to contact one.
Q. To perform a home inspection?
A. To perform the home inspection. And I called Mr. Radford.
Q. Did he give you any reason why he wanted a home inspection?
A. Probably because he is not an inspector or he’s not a structural engineer or he doesn’t know, never built a house, probably.
Q. Did he tell you that he lacked expertise on house construction?
A. Yes, he did.
Q. So following up on Mr. Bergen’s request, what did you proceed to do?
A. I called Mr. Radford, who was the town inspector for the Town of Alpine.... And he referred ... me to Mr. Carroll.
Q. So you proceeded to contact Mr. Carroll?
A. Correct.
Q. What did you ask Mr. Carroll to do?
A. To do a home — asked him to do a home inspection as — Because I didn’t know Mr. Carroll, I did have to relay (sic) back to Mr. Radford, giving me his name, that he would do an inspection for me because I usually get Mr. Radford and he was going to be out of town.
Q. Do you recall the conversation?
A. Not much of it. Just that I would meet him or I would give him a key. Now, we usually give them keys or we meet them and take them to the place where it is, if they don’t know where the area is.
THE COURT: Did she ask — the key question here is was there — did you tell him that you wanted a structural inspection?
THE WITNESS: We asked for an inspection. And if they’d been working with any realtors, they know what kind of inspection Mr. Radford does.
THE COURT: What kind is that?
THE WITNESS: That is a structural inspection of the house so that the person who is buying it feels comfortable purchasing it.

(Emphasis added.) Ms. Fahringer acknowledged she did not discuss what should have been included in the inspection because Mr. Radford had said Mr. Carroll could do the inspection and, from this information, she concluded Mr. Carroll would already be aware of what was expected of him. Mr. Radford did not testify regarding what a home inspection should entail in his experience.

[¶ 15] The record is clear that Mr. Carroll had some experience in the building trades and went with Mr. Radford on four inspections. Without any instructions from Ms. Fahringer, Mr. Carroll stated in his report that he found the home to be “structurally sound.” This choice of words is a strong indication he, like Ms. Fahringer, understood the inspection was intended to review and report on the structural soundness of the home. We conclude a contract existed because the parties implicitly and mutually agreed a home inspection was to be completed which would report on the structural soundness of the house.

[¶ 16] Mr. Wagner, the building contractor, provided the only testimony relating to an industry standard for home inspections and construction. Two problems exist with his testimony. First, he provided expert testimony which had not been designated as such. Second, not even Mr. Wagner offered an opinion that the repairs he suggested were needed to achieve “structural soundness.”

[¶ 17] Mr. Carroll asserts his case was unfairly prejudiced because, despite a pretrial order requiring designation of expert witnesses and his continuing objection to Mr. Wagner’s testimony without such a designation, the trial court permitted the testimony to include the industry standard applied in most building contracts, the condition of the house, and damages.

[¶ 18] A pretrial order required both parties to designate expert witnesses by November 17, 2000. On June 4, 2001, Mr. Carroll filed a motion in limine objecting to any expert witness other than Ms. Betty Rogers, the only expert designated prior to trial. The motion specifically complained Mr. Carroll could not depose unidentified experts or request a Daubert hearing on the admissibility of their testimony. A hearing on this motion was held immediately prior to the trial on June 4, 2001, and the trial court ruled Mr. Bergen could call Mr. Wagner only as a lay witness and noted Mr. Carroll’s continuing objection.

[¶ 19] “We have stated that a trial court has discretion to waive the requirements contained in its pretrial orders. We will not overturn the trial court’s ruling-excusing a failure to observe its pretrial order unless there has been an abuse of discretion.” Contreras By and Through Contreras v. Carbon County School District # 1, 843 P.2d 589, 592 (Wyo.1992) (citations omitted). Similarly, admission of evidence is within the trial court’s sound discretion, and we will not disturb evidentiary rulings absent a clear abuse of discretion. Garnick v. Teton County School District No. 1, 2002 WY 18, ¶ 13, 39 P.3d 1034, ¶ 13 (Wyo.2002).

[¶ 20] However, it is also true that adherence to such orders is critical in maintaining the integrity of judicial proceedings. 1488, Inc. v. Philsec Investment Corp., 939 F.2d 1281, 1289 (5th Cir.1991); Reaves v. Bergsrud, 127 N.M. 446, 982 P.2d 497, 502 (App.1999). The pretrial order controls the issues to be litigated, allowing the parties to rely on the pretrial order exhibit and witness lists to prepare their cases, and the trial court is vested with extensive authority to enforce its pretrial order. Id.

[¶ 21] W.R.E. 701, entitled “Opinion Testimony by Lay Witnesses,” provides;

If the witness is not testifying as an expert, his testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear understanding of his testimony or the determination of a fact in issue.

We previously held that W.R.E. 701 cannot be read to allow a witness who fails to qualify as an expert to offer opinion testimony “ ‘where the subject in question lies outside the realm of common experience and requires special skill or knowledge.’ ” Kemper Architects, P.C. v. McFall, Konkel & Kimball Consulting Engineers, Inc., 843 P.2d 1178, 1190 (Wyo.1992) (quoting 3 David W. Louisell & Christopher B. Mueller, Federal Evidence § 376 at 419 (Supp.1992)). “Topics demanding special experience, such as the appropriate mechanical design for an atypical heating and air conditioning system, require that only the testimony of a person possessing that special experience be received.” Id.

[¶ 22] A review of the testimony to which Mr. Carroll objected leads to the inescapable conclusion that the witness was allowed to provide opinions outside the realm of common experience. He testified he was a building contractor with twenty-four years of experience and had observed the condition of Mr. Bergen’s house. He then gave his opinion as to why the floor sagged using technical terms such as point loads, girder widths, and floor joists and concluded the home did not conform with the UBC. Mr. Wagner also provided his opinion of what repairs were necessary, how they should be made, and what they would cost. The average lay person would not have the knowledge or experience to give such opinions. Borrowing the expression, “if it looks like a duck, walks like a duck, and quacks like a duck, it must be a duck,” we conclude Mr. Wagner’s testimony was essentially an expert opinion from an experienced builder. In addition, his opinion that the UBC was the standard “most contracts use” suggested the home inspection contract required Mr. Carroll to identify deviations from the UBC.

[¶23] Without other evidence establishing the minimum requirements of a structural soundness inspection or that Mr. Carroll failed to meet the requirements, the trial court must have relied on Mr. Wagner’s testimony to conclude Mr. Carroll breached the contract by performing the inspection incompetently. No evidence was introduced to prove the sagging floor or other identified conditions actually impacted the structural soundness of Mr. Bergen’s home. Mr. Wagner’s testimony regarding the UBC inferred as much, but there was no direct evidence that compliance with the UBC was equivalent to structural soundness or the parties contemplated deviations from the UBC would be included in an inspection for structural soundness.

[¶ 24] “Findings of fact not supported by the evidence, contrary to the evidence, or against the great weight of the evidence cannot be sustained.” Drake v. McCulloh, 2002 WY 50, ¶ 17, 43 P.3d 578, ¶ 17 (Wyo.2002). We cannot sustain the trial court’s finding that Mr. Carroll did not do a competent job of inspecting the home without admissible evidence of the standard the parties intended should apply to such an inspection.

[¶ 25] Mr. Wagner’s testimony unfairly prejudiced Mr. Carroll’s case because Mr. Carroll had no notice or opportunity to investigate the opinion in advance and counter with his own expert. Holding otherwise would suggest litigants must be prepared to counter undesignated experts because they may be allowed to testify as lay witnesses. Cases should proceed in an orderly manner without parties having to anticipate ambush. The error was harmful because, without Mr. Wagner’s testimony, there is a reasonable possibility the trial court’s decision would have been more favorable to Mr. Carroll. McCarthy v. Whitlock Construction and Supply, 715 P.2d 218, 221 (Wyo.1986).

[¶ 26] Mr. Carroll similarly contends the award of damages was clearly erroneous because the trial court relied on Mr. Wagner’s testimony and lacked any other supporting evidence.

Damages are findings of ultimate fact. In a jury trial, the “jury’s determination of the amount of damages is inviolate absent an award so excessive or inadequate as to shock the judicial conscience and to raise an irresistible inference that passion, prejudice, or other improper cause had invaded the trial.” Coulthard v. Cossairt, 803 P.2d 86, 92 (Wyo.1990). But the standard of review after a bench trial is less deferential. “Damages, like apportionment of fault, are reviewed as fact and are not reversed unless clearly erroneous.” S. Childress, A Standards of Review Primer: Federal Civil Appeals, 125 F.R.D. 319, 330 (1989).

Cross v. Berg Lumber Company, 7 P.3d 922, 928 (Wyo.2000). We agree with Mr. Carroll. Mr. Wagner’s undesignated expert testimony which established the standard for determining what repairs were necessary and the cost of making those repairs should not have been allowed. Mr. Bergen presented no other evidence of damages.

[¶ 27] Reversed and remanded for a new trial consistent with this opinion.

KITE, J., delivered the opinion of the Court; GOLDEN, J., filed a dissenting opinion in which HILL, C.J., joined.

GOLDEN, J.,

dissenting, in which HILL, C.J., joins.

[¶ 28] I agree with everything said in the Court’s opinion, except that which remands this case for a new trial. Absent Mr. Wagner’s erroneously admitted testimony, Mr. Bergen’s claim fails. Simply stated, Mr. Bergen has failed to prove his claim; consequently, this Court should reverse and remand with directions that the district court enter judgment for Mr. Carroll, so that this case is at an end. I see no reason to give Mr. Bergen another bite at the apple.

      . The only problems Mr. Carroll noted were those he was told about by the real estate agent and the seller. However, he mistakenly identified the wrong bathtub.

      . The fee included $40 for the inspection cost and $6 for mileage.

      .
      VI. Costs of Services or Products Obtained From Outside Sources.
      Broker will not obtain or order products or services from outside sources unless Buyer has previously authorized tire services in writing and has agreed to pay for those services promptly when due. (Examples: surveys, soil tests, radon tests, title reports, property inspections.)

      . Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

      .
      "Under the Daubert model, the trial court must first determine whether the expert’s methodology is reliable; then tire court must determine whether the proposed testimony 'fits' the facts of the particular case.” [Chapman v. State, 2001 WY 25, ¶ 8, 18 P.3d 1164, ¶ 8 (Wyo. 2001)]. In Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 143 L.Ed.2d 238 (1999), the United States Supreme Court further clarified the scope of Daubert, holding the gatekeeping duties of the trial judge apply to all expert testimony, whether such testimony is based on scientific, technical, or other specialized knowledge.

        Alexander v. Meduna, 2002 WY 83, ¶ 21, 47 P.3d 206, ¶ 21 (Wyo.2002).


source: Caselaw Access Project

author: KITE, Justice.

license: Public Domain

text:
    2002 WY 167
    In the Matter of the Application of Croell Redi Mix, Inc. for a Private Road. ELK HORN RANCH, INC.; Roberta I. Hutchinson Revocable Trust Dated April 1, 1977; and Crago Ranch Trust, Appellants (Petitioners), v. BOARD OF COUNTY COMMISSIONERS, CROOK COUNTY, Wyoming, Appellee (Respondent), and Croell Redi Mix, Inc., Appellee (Applicant).
    No. 01-260.
    Supreme Court of Wyoming.
    Nov. 18, 2002.

      Stanley S. Sheehan, Newcastle, Wyoming, Representing Appellants.
    No appearance, Representing Appellee Board of County Commissioners.
    Mark L. Hughes of Hughes Law Office, Sundance, Wyoming, Representing Appellee Croell Redi Mix, Inc.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument

   KITE, Justice.

[¶ 1] The Board of County Commissioners of Crook County (the board) established a private road over certain landowners’ property. Those landowners dispute the damages awarded to them for the private road and contend the board erred in ordering that cattle guards be installed. We find the board’s decision is supported by substantial evidence and affirm.

ISSUES

[¶2] We summarize the issues as follows:

I. Is the private road order issued by the board supported by substantial evidence?
II. Did the board properly determine, as recommended by the viewers and appraisers, that car gates could be installed?
III. Did the board properly approve the survey?

FACTS

[¶ 3] Pursuant to Wyo. Stat. Ann. § 24-9-101 (LEXIS 1999) (amended 2000), Croell Redi Mix, Inc. (Redi Mix) filed an application with the board requesting the establishment of a private road across property owned by the Roberta I. Hutchinson Revocable Trust (Hutchison), Elk Horn Ranch, Inc. (Elk Horn), and the Crago Ranch Trust (Crago) (collectively the landowners) in order to access and haul gravel from its landlocked property. A road already existed from the public highway to the gravel pit, and Elk Horn had paid Hutchinson, $5,000 for an easement over Hutchinson’s property giving Elk Horn access to its property. However, Crago had no legal right of access over either Elk Horn’s property or Hutchinson’s property. The parties stipulated that the private road would be located on the existing road on Hutchinson’s property which provided access to Elk Horn’s and Crago’s properties. Redi Mix agreed to construct a new roadway over Elk Horn’s and Crago’s properties. The parties also stipulated that the law prior to 2000 would control because Redi Mix sent the initial notices of intent to apply for the private road before the 2000 amendment to § 24-9-101 became effective.

[¶ 4] The board held a hearing on the issue of damages. Representing the interests of Hutchinson, Drew Hutchinson provided his lay opinion the private road would reduce the value of Hutchinson’s property by $204,000 on the basis of his personal knowledge of sales in the area, fencing costs would be in excess of $20,000, and a twenty-five percent reduction in the value of the remaining property would result from the haul road which was consistent with the report by the appraiser for Crago’s and Elk Horn’s properties. He also gave his own opinion as to loss due to inconvenience and the impact the road would have on his family’s way of life. Elk Horn and Crago provided an appraiser, Jerry Hulm, who testified the per acre value of the land taken by the actual roadway was $1,000 for Elk Horn’s property and $800 for Crago’s property. In addition, Mr. Hulm testified the proposed road would diminish the value of the remaining properties and the total damages to Elk Horn’s property would be $316,000 and to Crago’s property would be $171,000. Mr. Hulm’s opinion was supported by his appraisal report which contained a complicated formula that attempted to estimate the impact on the properties based upon proximity to the road and limitations on future development.

[¶ 5] Three viewers and appraisers (the viewers), appointed by the board as required by § 24-9-101, testified the only damage would be the taking of the actual acreage consumed by the roadway. The viewers adopted $1,000 per acre as the value for Hutchinson’s property and Elk Horn’s property resulting in damages of $4,200 and $3,650 respectively and $800 per acre as the value for Crago’s property resulting in damages of $3',240. They also recommended the installation of three cattle guards between the properties to minimize livestock wandering and preclude the necessity to open and shut gates.

[¶ 6] The board issued an order adopting the viewers’ conclusions and establishing a private road contingent upon approval of the survey and Redi Mix’s payment of the damages and costs. The landowners filed a petition for administrative review, and the district court affirmed the board’s decision. This appeal followed.

STANDARD OF REVIEW

[¶ 7] In Hoff v. State ex rel. Wyoming Workers’ Safety and Compensation Division, 2002 WY 129, 53 P.3d 107 (Wyo.2002), we reiterated the administrative agency action standard of review clarified in Newman v. State ex rel. Wyoming Workers’ Safety and Compensation Division, 2002 WY 91, 49 P.3d 163 (Wyo.2002).

Judicial review of an agency action is directed by Wyo. Stat. Ann. § 16-3-114.
In appeals where both parties submit evidence at the administrative hearing, Newman mandates that appellate review be limited to application of the substantial evidence test. This is true regardless of which party appeals from the agency decision. In addition, this court is required to review the entire record in making its ultimate determination on appeal.
The substantial evidence test to be applied is as follows: “In reviewing findings of fact, we examine the entire record to determine whether there is substantial evidence to support an agency’s findings. If the agency’s decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the agency and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency’s conclusions. It is more than a scintilla of evidence.” Newman, at ¶ 12.
Even when the factual findings are found to be sufficient under the substantial evidence test, ... this court may be required to apply the arbitrary-and-capricious standard as a “safety net” to catch other agency action which prejudiced a party’s substantial right to the administrative proceeding or which might be contrary to the other WAPA review standards. [Newman provides a] purely demonstrative listing ... of situations which could warrant the consideration of the arbitrary- and-capricious standard in addition to the substantial evidence test. However, this appeal presents no such unique circumstances.

Hoff, 2002 WY 129, ¶¶ 5-8, 53 P.3d 107 (footnotes and some citations omitted). This private road appeal presents no unique circumstances; therefore, we apply only the substantial evidence analysis.

[¶ 8] The landowners also raise questions of law concerning the board’s authority to require the cattle guards. We affirm an administrative agency’s conclusions of law only if they are in accord with the law. We do not afford deference to the agency’s determination, and we will correct any error made by the agency in either interpreting or applying the law. Yenne-Tully v. State ex rel. Wyoming Workers’ Safety and Compensation Division, 2002 WY 90, ¶ 7, 48 P.3d 1057, ¶ 7 (Wyo.2002); Wesaw v. Quality Maintenance, 2001 WY 17, ¶ 8, 19 P.3d 500, ¶ 8 (Wyo.2001).

DISCUSSION

A. Substantial Evidence

[¶ 9] Before the 2000 amendment, § 24-9-101 provided in relevant part that, when the board finds an applicant has complied with the law and the private road is necessary, it shall appoint three disinterested freeholders and electors of the county as viewers and appraisers and direct them to meet on, view, and locate the proposed private road and assess damages. The statute further required the viewers to submit a plat of the road to the board at the same time they assessed the landowners’ damages. Under this version of § 24-9-101, damages were

assessed in accordance with Lindt v. Murray, 895 P.2d 459, 463 (Wyo.1995). That is, the viewers and appraisers must: first, determine the value of the property over which the road crosses before the private road is established; second, determine the value of the property over which the road crosses after the private road is established; and third, subtract the “after” value from the “before” value, which equals the damages due the owners of land over which the road crosses. In applying this formula, the viewers and appraisers are to determine the “before” and “after” value only of those lands over which the private road crosses; not ... the “before” and “after” value of all surrounding lands affected by the proposed road.

Miller v. Bradley, 4 P.3d 882, 888-89 (Wyo.2000); see also Mayland v. Flitner, 2001 WY 69, ¶ 35, 28 P.3d 838, ¶ 35 (Wyo.2001).

[¶ 10] The viewers received written instructions explaining how to assess the damages which were consistent with the “before and after test.” How and by whom these instructions were drafted and provided to the viewers is not clear. It appears from the record the board may have provided them to the viewers on the day of their on-site property inspection. The landowners did not object to these instructions. They did, however, move to strike the viewers’ recommendation report because it failed to provide the reasons for the recommendations. The hearing examiner denied the motion ruling Wyo. Stat. Ann. § 24-9-103 (LEXIS 1999) (amended 2000) required the viewers to file a written recommendation report but did not direct the reasons for the recommendations be included.

[¶ 11] The viewers testified they inspected the landowners’ properties and the gravel pit and traveled the proposed road. They determined the dust and noise caused by haul vehicles would not impact any of the landowners’ buildings because none existed along the proposed or existing roadway. They contacted South Dakota and Wyoming county clerks, assessors, and real estate professionals in an effort to identify sales of comparable properties where private roads had been established. When they investigated similar situations, they found no evidence the remaining lands either increased or decreased in value after establishment of the private roads. They reviewed Mr. Hulm’s appraisals of Crago’s and Elk Horn’s properties and Mr. Hutchinson’s estimate of damage to Hutchinson’s property. The viewers adopted Mr. Hulm’s per acre values for the properties before the establishment of the private road concluding those values were based on comparable sales. However, they rejected Mr. Hulm’s opinion of the diminution in value of the remaining properties that would be caused by the private road because they could not find any circumstance where a private road caused a diminution in the value of the affected property other than from the taking of the actual roadway itself. They also concluded the current highest and best use of the property was as agricultural land and refused to consider Mr. Hulm’s opinion that the road would limit future development of secluded, executive home sites. None of the landowners had made proposals for subdividing their properties for such use.

[¶ 12] After extensive cross-examination of the viewers, the landowners presented their evidence of damages which included Mr. Hulm’s testimony regarding the Crago and Elk Horn appraisals. Mr. Hulm testified he applied several adjustments to the comparable sales he identified in order to account for the increase in value caused by providing legal access where none had existed (e.g., Crago’s property) and to estimate the diminution in value to the remaining properties considering market resistance to properties with private haul roads through them. His report provided a complex theory which resulted in differing values for different parcels depending on their proximity to the road and the effect on future development potential as well as estimating the cost of alterations that could be required to maintain an efficient agricultural operation'. However, he was unable to identify actual comparable property sales for which the value was diminished because a private road was located on the land. He also acknowledged he had never performed a private road appraisal under § 24-9-101 prior to completing the Crago and Elk Horn appraisals.

[¶ 13] After presentation of all the evidence, the board had to determine which evidence was most persuasive — -the landowners who claimed, in addition to the lands taken by the roadway itself, the value of their remaining properties would be substantially diminished or the viewers who concluded the only damage was the per acre value of the lands taken for the roadway. The board carefully considered all the evidence and chose to give the viewers’ testimony more weight and credence than the appraiser’s testimony. The board’s order provides numerous detailed findings which, for the most part, set out a thorough and accurate summary of the evidence. We will not substitute our judgment for that of the agency when substantial evidence supports the decision. Newman, 2002 WY 91, ¶ 12, 49 P.3d 163.

[¶ 14] We hold the board’s finding that the appraiser, Mr. Hulm, did not use comparable sales or the sales comparison method to be unsupported by the evidence. Mr. Hulm’s testimony and the two appraisal reports demonstrate he did use comparable sales but also applied adjustments. The application of adjustments is a standard real estate appraisal practice, and no evidence was submitted to indicate these particular adjustments were invalid or violated the Uniform Standards of Professional Appraisal Practice. Wyo. Stat. Ann. § 33-39-107 (LexisNexis 2001); see The Appraisal of Real Estate ch. 17 (10th ed.1992). However, this error does not alter our conclusion that substantial evidence supported the board’s decision regarding appropriate damages. The board simply found the appraiser’s opinion less persuasive than that of the viewers which was well within the board’s discretion.

[¶ 15] With regard to the establishment of private roads, “the legislature intended the procedure under [§ 24-9-101] to provide in a local forum a readily available, economically affordable, and time efficient method to obtain a means of access to property.” Martens v. Johnson County Board of Commissioners, 954 P.2d 375, 380 (Wyo.1998). It is our role, in reviewing private road decisions of county boards of commissioners, to further that legislative intent and leave intact county decisions based on the recommendation of local landowners, who were sworn to be fair and impartial, of the damage caused by the grant of a private road. This is particularly true in this case where the viewers did everything within reason to thoroughly investigate and evaluate the damages.

[¶ 16] We will not capitulate to the landowners’ efforts to relitigate their case on appeal. “Our task is not to reweigh the evidence.” Leavitt v. State ex rel. Wyoming Workers’ Safety and Compensation Division, 980 P.2d 332, 335 (Wyo.1999). We conclude substantial evidence supported the findings and, therefore, affirm.

B. Viewers’ Location of Cattle Guards

[¶ 17] The landowners argue there was no instruction given to the viewers to establish cattle guards and the statute did not provide such authority. The damages instructions stated, in relevant part and consistent with Wyo. Stat. Ann. § 24-9-102 (LEXIS 1999) (repealed 2000), “The viewers and appraisers shall have power to determine in all cases whether or not gates shall be placed at the proper points on said road, and assess damages in accordance with such determination.” As noted previously, the record does not indicate the landowners objected to these damages instructions being given to the viewers. The viewers testified they followed the instructions and thought cattle guards would better serve all parties’ interests than conventional gates would.

[¶ 18] The landowners’ objection to this requirement is somewhat obtuse. They appear to contend only a manually operated gate could be required and the board’s action ordering placement of cattle guards exceeded its statutory authority. We reject this contention on the basis of our holdings in Van Raden v. Harper, 891 P.2d 78 (Wyo.1995), and Weiss v. Pedersen, 933 P.2d 495 (Wyo.1997). In Van Raden, we held as a matter of law that installing cattle guards on a right-of-way easement is a permissible improvement of an easement and does not materially increase the burden of the servient estate. 891 P.2d at 79. In Weiss, we recognized Van Raden and applied the principle to an alleged prescriptive right-of-way or access easement. 933 P.2d at 500. The purpose of the private road is to provide the landlocked owner with reasonably convenient access to his property without imposing an inordinate burden on the servient property owner. See Ferguson Ranch, Inc. v. Murray, 811 P.2d 287, 290 (Wyo.1991). Cattle guards create no more, and likely create less, of a burden than gates do on the servient landowners. We conclude the board did not err by adopting the viewers’ recommendation.

C. Approval of the Survey

[¶ 19] The landowners argue the board should not have approved the survey map as presented because it did not place the private road on Hutchinson’s property at the same location as the prior existing road easement. This issue is fully resolved by the parties’ stipulation to the location which the viewers relied on at the parties’ request. The problem apparently arises because the preexisting road on Hutchinson’s property was not located, as everyone had mistakenly believed, on the recorded easement. The attorney for Redi Mix summarized the agreement for the hearing examiner and the board in precise language:

[T]he landowners involved, namely Roberta Hutchinson Trust, the Fortak family through their corporation [Elk Horn], and the Crago Ranch Trust ..., have agreed to a road location that, I believe, is contained in the return by the viewers.... It is an alternate location, a location other than the existing roadway in so far as the ... Elk [Horn] Ranch is concerned and the Crago Ranch Trust is concerned. It is the existing roadway, as the existing roadway passes through the Roberta Hutchinson Trust property. And I would stipulate that we have all agreed to the alternate location, the alternate route. We are not now requesting a route along the existing roadway with the exception of the roadway as it passes through the Roberta Hutchinson Trust, which is the existing roadway.

(Emphasis added.) The landowners’ attorney responded by stating, “[t]he only thing I would add,” and then he made some comments about the new routes contemplated for Elk Horn’s and Crago’s properties. He said nothing to alter, or question, the representations made regarding the stipulation to the location of the road on Hutchinson’s property. The counsel’s representations demonstrate all the parties negotiated and accepted the stipulation.

Stipulations are favored by courts. Beard v. Beard, 368 P.2d 953, 955 (Wyo.1962); 83 C.J.S. Stipulations § 2 (1953). See Bard Ranch, Inc. v. Weber, 538 P.2d 24, 31 (Wyo.1975) (citations omitted) stating that “[t]he parties are bound by the stipulation of facts just as they are bound by admissions in pleadings.”

Cummins v. Albany County Credit & Collection Bureau, Inc., 821 P.2d 1296, 1297 (Wyo.1991). The landowners did not contend the stipulation was misstated and had a full opportunity to provide any clarification they deemed necessary. Yet they attempt in this appeal to suggest Hutchinson’s property will incur additional damages because the board acted on their stipulation and approved the survey. We hold the stipulation was valid and the board properly relied upon it in approving the survey.

[¶ 20] Affirmed.

      . The appellants set out the issues in their brief as follows:
      ISSUE ONE

        Did the Board of Crook County Commissioners act contrary to law in stating that cattle-guards could be installed?
      ISSUE TWO
      Should the finding of facts 7, 10, 11, 15, 20, 21 and 29 be struck since they are not supported by substantial evidence?
      ISSUE THREE
      Are the finding of facts and conclusions of law in the order establishing a private road contingent upon approval of survey and payment of damages and costs supported by substantial evidence?
      ISSUE FOUR
      Was the survey properly approved by the Board of Crook County Commissioners?
      Appellee Croell Redi Mix, Inc. framed the issue in a much more general manner:
      [W]hether the Crook County Commissioner[s’] Order titled Order Establishing a Private Road Contingent Upon Approval of Survey and Payment of Damages and Costs issued on November 14, 2000 is supported by substantial evidence and in accordance with Wyoming law.

      . Car gates are also known in common vernacular as cattle guards.

      . The viewers also recommended damages for timber and shrubbery of $750 to Elk Horn and $1,000 to Crago which are included in the total damage figures but are not at issue in this appeal.

      . These cattle guards would apparently be in addition to three cattle guards already in place on the properties.

      .
      (b) As used in this act:
      (i) "Agency” means any authority, bureau, board, commission, department, division, officer or employee of the state, a county, city or town or other political subdivision of the state, except the governing body of a city or town, the state legislature, the University of Wyoming and the judiciaryf]
      Wyo. Stat. Ann. § 16 — 3—101 (b)(i) (LexisNexis 2001).

      .
      Any person whose land has no outlet to, nor connection with a public road, may apply in writing to the board of county commissioners of his county for a private road leading from his premises to some convenient public road. At least sixty (60) days prior to applying to the board, the applicant shall give notice in writing to the owner, resident agent or occupant of all lands over which the private road is applied for, of his intent to apply for a private road. If the owner of the land is a nonresident, and there is no resident agent upon which personal service can be had, then the notice may be published once a week for three (3) weeks in a newspaper published in the county. The last publication shall be at least thirty (30) days before the hearing of the application. At the hearing, all parties interested may appear and be heard by the board as to the necessity of the road and all matters pertaining thereto. Upon the hearing of the application, whether the owner or others interested appear or not, if the board finds that the applicant has complied with the law and that the private road is necessary, the board shall appoint three (3) disinterested freeholders and electors of the county, as viewers and appraisers, and shall cause an order to be issued directing them to meet on a day named in the order on the proposed road, and view and locate a private road according to the application therefor, and to assess damages to be sustained thereby. If for any reason the viewers and appraisers are unable to meet at the time set by the board to view the proposed road, they may fix some other date, but shall give notice in writing to the owner, resident agent or occupant of the lands over which the road is proposed to be laid of the time and place where the viewers will meet, at least ten (10) days before viewing the road, at which time and place all persons interested may appear and be heard by the viewers. Before entering upon their duties the viewers shall take and subscribe to an oath that they will faithfully and impartially perform their duties under their appointment as viewers and appraisers. The viewers shall then proceed to locate and mark out a private road in accordance with the application or in such other manner and location they deem appropriate, provided the location of the road shall not be marked out to cross the lands of any person whose lands were not described in the application and who was not given notice of the application. The proposed road shall not exceed thirty (30) feet in width from a certain point on the premises of the applicant to some certain point on the public road, and shall be located so as to do the least possible damage to the lands through which the private road is located. The viewers shall also at the same time assess the damages sustained by the owner over which the road is to be established and make full and true returns, with a plat of the road to the board of county commissioners.

      . During the 2000 legislative session, the legislature added the before and after test:
      (j) In determining any damages to be suffered by the owner or owners of the lands through which the access shall be provided, the viewers and appraisers shall appraise the value of the property before and after the road is in place. Damages also may include reasonable compensation for any improvements on the lands over which any private road is to be granted which were not paid for and will be used by the applicant.
      Wyo. Stat. Ann. § 24-9-101(j) (LexisNexis 2001); see also Mayland v. Flitner, 2001 WY 69, ¶ 36, 28 P.3d 838,¶ 36 (Wyo.2001).

      .
      The viewers and appraisers so appointed, or a majority of them, shall make a report to the county commissioners at the next regular session, of the private road so located by them, and also the amount of damages, if any, assessed by them, and the person or persons entitled to such damages, and if the commissioners are satisfied that such report is just, and after payment by the applicant of all cost of locating such road, and the damages assessed by the viewers, the commissioners shall order such report to be confirmed and declare such road to be a private road, and the same shall be recorded as such. Any person aggrieved by the action of the board or as to the amount of damages awarded, may appeal to the district court at any time within thirty (30) days after said road is finally established by said board of county commissioners.

      .
      Each certified real estate appraiser issued a permit to practice under this act shall comply with the standards of professional appraisal practice and ethical rules specified by the Uniform Standards of Professional Appraisal Practice.

      . We have held, "there is no requirement in § 24-9-101 that a petitioner for a private road must overcome every obstacle standing in his way, regardless of the expense and impracticability.” Miller, 4 P.3d at 887. Nor will we force a landlocked property owner to choose a wholly illogical, uneconomical, and unproductive road. Ferguson Ranch, Inc. v. Murray, 811 P.2d 287, 290 (Wyo.1991). Further, and most recently in Mayland, 2001 WY 69, ¶26, 28 P.3d 838, we refused to require the proponent to go to extraordinary effort, such as a quiet title action, to prove other access may have been available over public lands.


author: LEHMAN, Justice. GOLDEN, J.,

text:
    2002 WY 169
    Tom PAGEL, as Director of the Wyoming Division of Criminal Investigation, and as Official Custodian of Certain Concealed Firearm Permit Records, Appellant (Petitioner), v. Ann FRANSCELL, and the Gillette News Record, upon their request for Certain Concealed Firearm Permit Records, Appellees (Respondents).
    No. 01-201.
    Supreme Court of Wyoming.
    Nov. 19, 2002.

      Hoke MacMillan, Attorney General; Paul S. Rehurek, Deputy Attorney General; Hugh Kenny, Senior Assistant Attorney General; Bryan A. Skoric, Senior Assistant Attorney General; and T. Alan Elrod, Assistant Attorney General, Representing Appellant. Argument by Messrs. Skoric and Elrod.
    Michael J. Krampner of Krampner, Fuller, and Hambrick, Casper, WY, Representing Appellees. Argument by Mr. Krampner.
    Before HILL, C. J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   LEHMAN, Justice.

[¶ 1] This is an appeal from an order of the district court requiring appellant Tom Pagel, as director of appellant Wyoming Division of Criminal Investigation (collectively DCI), to provide a list of all people living within Campbell County possessing a permit or license to carry a concealed weapon under Wyoming law to appellee Ann Franscell, as editor-in-chief of appellee Gillette News Record (collectively Newspaper). We reverse and remand.

ISSUES

[¶ 2] DCI sets forth the following issues on appeal:

I. Did the district court err as a matter of law in denying appellant’s Rule 59 motion, where the intervening change in the controlling law, with its clear retroactivity clause, necessitated either a new trial or an amendment of the district court’s order of March 21, 2001?
II. Did the district court err as a matter of law in' holding that the names of concealed firearm permit holders were subject to release under the concealed firearm permit statute, Wyo. Stat. § 6-8-104?
III. Did the district court err as a matter of law by failing to apply the Public Records Act in determining whether appellant was entitled to refuse to disclose the records that appellees requested?
IV. Did the district court err as a matter of law by ordering appellant to disclose the names of concealed firearm permit holders, where those orders mandate appellant to violate both state and federal law?

Newspaper phrases the issues on appeal as:

I. Did the district court err in deciding that the Wyoming Public Records Act required access to the list of persons to whom concealed weapons permits had been issued, by applying the law which was in effect both on the day the records were requested and on the day the case was decided?
II. After a case between two parties has been decided, can the Legislature alter the decision in that case by changing the law “retroactively,” consistent with the “separation of powers” doctrine and W.S. § 8-1-107, when the words of the statutory amendment itself require a different result?

FACTS

[¶ 3] On September 19, 2000, Newspaper requested that DCI provide a list of all people living within Campbell County who had a valid permit or license to carry a concealed weapon under Wyoming state law. On October 3, 2000, DCI denied Newspaper’s request indicating the language within Wyo. Stat. Ann. § 6-8-104(n) (Lexis 1999) allowed release of the requested information solely to Wyoming law enforcement agencies and, notwithstanding that language, release of the information would do substantial injury to the public interest. DCI also indicated release of the information would be contrary to the very purpose of the concealed firearm statute since it would directly subvert an individual’s right to conceal from the public at large whether that individual was armed.

[¶ 4] On the same date of DCI’s denial, DCI filed an action in the district court pursuant to Wyo. Stat. Ann. § 16 — 4—203(g) (Lexis 1999), which allows a custodian to petition the court for an order restricting disclosure of a requested record, even if the record may be otherwise available to the public. DCI asserted the requested records were not public records but, even in the event they were considered public records, release would do substantial injury to the public interest. Immediately after a February 1, 2001 hearing, the district court orally ordered DCI to release the names of concealed permit holders in Campbell County to Newspaper but offered to stay the enforcement pending appeal since the court recognized the potential for irreparable harm. Shortly after the hearing, Newspaper submitted a proposed order to DCI for approval. DCI refused to approve this proposed order and requested that a transcript of the hearing be prepared for review. Upon review of the transcript, DCI objected to the proposed order pursuant to W.R.C.P. 58 on February 21, 2001.

[¶ 5] During this time frame, § 6-8-104 was amended to mandate that no lists or other records maintained by DCI or other law enforcement agencies, which identified an individual who concealed a firearm through permit, were to be considered a public record. This amendment also specified that it was to have retroactive effect concerning all records regarding the application and issuance of concealed firearm permits and became effective on February 20, 2001. Wyo. Stat. Ann. § 6-8-104 (LexisNex-is 2001).

[¶ 6] On March 21, 2001, the district court entered its order in the form presented by Newspaper requiring DCI to disclose the requested information but staying enforcement of the order pending appeal. On April 2, 2001, DCI filed a motion for a new trial or, in the alternative, to alter or amend the district court’s previously entered order. On June 15, 2001, the district court held a hearing concerning this motion and requested additional briefing. After considering this additional briefing, the district court entered an order denying DCFs motion. This appeal followed.

STANDARD OF REVIEW

[¶ 7] A hearing was held with the district court issuing specific findings of fact and conclusions of law. In its recently published case of Hutchings v. Krachun, 2002 WY 98, ¶ 10, 49 P.3d 176, ¶ 10 (Wyo.2002), this court reiterated our standard of review:

The purpose of specific findings of fact is to inform the appellate court of the underlying facts supporting the trial court’s conclusions of law and disposition of the issues. Hopper v. All Pet Animal Clinic, Inc., 861 P.2d 531, 538 (Wyo.1993). While the findings of fact made by a trial court are presumptively correct, we examine all of the properly admissible evidence in the record. Because this court does not weigh the evidence de novo, findings may not be set aside because we would have reached a different result. Rather, the appellant has the burden of persuading the appellate court that the finding is erroneous. Id. See also Maycock v. Maycock, 2001 WY 103, ¶ 11, 33 P.3d 1114, ¶ 11 (Wyo.2001). Findings of fact are not set aside unless inconsistent with the evidence, clearly erroneous, or contrary to the great weight of the evidence. The definitive test of when a finding of fact is clearly erroneous is when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed. A determination that a finding is against the great weight of the evidence means that a finding will be set aside even if supported by substantial evidence. Id. See also Mathis v. Wendling, 962 P.2d 160, 163 (Wyo.1998). Conclusions of law made by the trial court are not binding on this court and are reviewed de novo. May-cock, ¶ 12.

(Emphasis added.)

DISCUSSION

[¶ 8] In its second issue raised on appeal, DCI asserts that the district court erred as a matter of law by failing to correctly interpret the Public Records Act (Wyo. Stat. Ann. § 16-4-201 et seq.) in conjunction with Wyo. Stat. Ann. § 6-8-104 in determining that the records requested by Newspaper were public records. Specifically, DCI contends that the correct interpretation of Wyoming law is that these records are not public records and public inspection is thereby prohibited.

[¶ 9] In the case of Wyoming Cmty. College, Comm’n v. Casper Cmty. College Dist., 2001 WY 86, ¶¶ 16-18, 31 P.3d 1242, ¶¶ 16-18 (Wyo.2001), we set forth:

In interpreting statutes, our primary consideration is to determine the legislature’s intent. Fontaine v. Board of County Comm’rs, 4 P.3d 890, 894 (Wyo.2000); State ex rel. Motor Vehicle Div. v. Holtz, 674 P.2d 732, 736 (Wyo.1983). Legislative intent must be ascertained initially and primarily from the words used in the statute. Allied-Signal, Inc. v. State Board of Equalization, 813 P.2d 214, 219 (Wyo.1991); Phillips v. Duro-Last Roofing, Inc., 806 P.2d 834, 837 (Wyo.1991). When the words are clear and unambiguous, a court risks an impermissible substitution of its own views, or those of others, for the intent of the legislature if any effort is made to interpret or construe statutes on any basis other than the language invoked by the legislature. Allied-Signal, 813 P.2d at 219. Moreover, “[a]ll statutes must be construed in pan materia; and in ascertaining the meaning of a given law, all statutes relating to the same subject or hav[ing] the same general purpose must be considered and construed in harmony.” Fontaine, 4 P.3d at 894 (citing State ex rel. Motor Vehicle Div. v. Holtz, 674 P.2d at 735).
Therefore, in performing our review, we look first to the plain and ordinary meaning of the words to determine if the statute is ambiguous. Olheiser v. State ex rel. Worker’s Compensation Div., 866 P.2d 768, 770 (Wyo.1994) (citing Parker Land & Cattle Company v. Game & Fish Comm’n, 845 P.2d 1040, 1042-43 (Wyo.1993)). A statute is clear and unambiguous if its wording is such that reasonable persons are able to agree on its meaning with consistency and predictability. Parker Land & Cattle, at 1043. Conversely, a statute is ambiguous if it is found to be vague or uncertain and subject to varying interpretations. Id. We have said that divergent opinions among parties as to the meaning of a statute may be evidence of ambiguity. Basin Electric Power Co-op. v. State Bd. of Control, 578 P.2d 557, 561 (Wyo.1978). However, the fact that opinions may differ as to a statute’s meaning is not conclusive of ambiguity. Ultimately, whether a statute is ambiguous is a matter of law to be determined by the court. Allied-Signal, 813 P.2d at 219.
If we determine that the statute is ambiguous, we resort to general principles of statutory construction to determine the legislature’s intent. Petroleum Inc. v. State ex rel. State Bd. of Equalization, 983 P.2d 1237, 1240 (Wyo.1999) (citing Parker Land & Cattle, 845 P.2d at 1044).
[I]n ascertaining the legislative intent in enacting a statute ... the court ... must look to the mischief the act was intended to cure, the historical setting surrounding its enactment, the public policy of the state, the conditions of the law and all other prior and contemporaneous facts and circumstances that would enable the court intelligently to determine the intention of the lawmaking body.
Parker Land & Cattle Co. at 1044 (quoting Carter v. Thompson Realty Co., 58 Wyo. 279, 131 P.2d 297, 299 (1942)).

We have also recognized that if a statute is deemed to be ambiguous, we must under the guidelines of statutory construction allow specific statutory language to control over prior generally stated statutory language. In re Pohl, 980 P.2d 816, 820 (Wyo.1999) and those cases cited therein.

[¶10] Wyo. Stat. Ann. § 16-4-201(a)(v) (Lexis 1999) states:

(v) “Public records” when not otherwise specified includes the original and copies of any paper, correspondence, form, book, photograph, photostat, film, microfilm, sound recording, map drawing or other document, regardless of physical form or characteristics that have been made by the state of Wyoming and any counties, municipalities and political subdivisions thereof and by any agencies of the state, counties, municipalities and political subdivisions thereof, or received by them in connection with the transaction of public business, except those privileged or conftdential by law [.]

(Emphasis added.) While Wyo. Stat. Ann. § 6-8-104 (Lexis 1999) does not particularly provide that concealed weapon license records are privileged or confidential by law, that statute does enunciate, in part, the following:

(g) The sheriff of the applicant’s county of residence shall submit a written report to the division containing any information that he feels may be pertinent to the issuance of a permit to any applicant. The written report shall state facts known to the sheriff which establish reasonable grounds to believe that the applicant has been or is reasonably likely to be a danger to himself or others, or to the community at large as a result of the applicant’s mental or psychological state, as demonstrated by a past pattern or practice of behavior, or participation in incidents involving a controlled substance, alcohol abuse, violence or threats of violence as these incidents relate to criteria listed in this section .... The sheriff of the applicant’s county of residence shall notify the chief of police, if any, of the applicant’s place of residence of the application for a concealed firearm permit by the applicant. The chief of police shall submit written comments to the division under the guidelines prescribed in this section. Submitted comments shall not be considered a public record.
(n) The division shall maintain an automated listing of permit holders and pertinent information, and the information shall be available on-line, upon request, at all times to all Wyoming law enforcement agencies.
(z) By March 1 of each year, the division shall submit a statistical report to the governor and to the joint judiciary interim committee indicating the number of permits issued, revoked, suspended and denied.

[¶ 11] Looking first at § 6-8-104(n), since it is specifically focused upon the dissemination of lists of those holding permits to carry a concealed weapon and other information related to that topic, the very subject matter at issue here, this subsection allows only the dissemination of this information to Wyoming law enforcement agencies. Stated conversely, therefore, this information is precluded from being released to the public, along with even law enforcement agencies outside of Wyoming. Clearly, the language utilized by the legislature in this subsection infers the legislature’s intent to limit access to any lists of those holding permits to carry a concealed weapon and other related information.

[¶ 12] Such intent of the legislature is also gleaned from review of § 6-8-104(z). This subsection plainly allows solely the dissemination of very limited types and amounts of statistical information concerning the area of concealed weapons to the governor and the joint judiciary interim committee. Therefore, we must conclude that the legislature intended that specific information in this area other than statistical information regarding the number of permits issued, revoked, suspended, and denied should be protected and kept confidential.

[¶ 13] Finally, review of § 6-8-104(g) explicitly states that written reports made by the local sheriff and chief of police located in the area of residence of a person applying for a concealed weapon permit shall not be considered public records. Newspaper argues that this statement within subsection (g) makes it evident that the legislature intended that only these written reports should not be deemed public records and it follows that any other records in the concealed weapon arena must be considered a public record that may be disclosed. Indeed, the district court explicitly agreed and adopted this argument as a basis for its ultimate ruling. However, we do not agree.

[¶ 14] Our analysis of this subsection leads us to the conclusion that the legislature was merely being exceedingly careful in its decree that any written reports of the applicable law enforcement officials be kept confidential and no other inference may be drawn from this expression. The allowed written reports of these officials and the required background information that must be used as a basis for such comments are exceedingly private. Indeed, as stated within this subsection, these statements must be based upon facts known to the law enforcement officials which establish reasonable grounds to believe that the applicant has been or is reasonably likely to be a danger to himself or others, or to the community at large as a result of the applicant’s mental or psychological state, as demonstrated by a past pattern or practice of behavior, or participation in incidents involving a controlled substance, alcohol abuse, violence or threats of violence as these incidents relate to the issuance of a concealed weapon permit.

[¶ 15] Prohibiting dissemination of this information ensures the protection of the applicant, personally, along with his or her reputation within the community and surrounding area of residence. Further, precluding the publication of these statements also provides a protection for the law enforcement officials involved since dissemination may result in retaliatory acts being taken against them for simply supplying their respective honest and verifiable comments concerning the issuance of a concealed weapon permit to any particular applicant. Accordingly, we hold that the language used within subsection (g) by the legislature was meant solely as a carefully thought out prophylactic measure to ensure that the written reports submitted by law enforcement officials called for under the statute be kept confidential.

[¶ 16] Finally, and perhaps most importantly, a simple reading of § 6-8-104 in pari materia leaves little question that release of a list of concealed weapon permit holders is contrary to the very nature of the statute. Simply put, what good is a concealed weapon permit if the identity of those who are issued such a permit is of general public knowledge? If we were to hold that lists of those issued concealed weapon permits may be released to the general public, such would defeat the very purpose of the concealed weapons law itself. We cannot infer that the legislature would have purposefully intended such a result.

[¶ 17] We do not find the language used within § 6-8-104 to be ambiguous. Review of the plain and ordinary meaning of the words used therein makes it evident that the legislature only intended to provide limited access to any lists of those holding permits to carry a concealed weapon and other related information and that this information should therefore not be considered a public record which may be released to the general public. Alternatively, even if we were to conclude that this statute might be construed as being ambiguous, application of the proper rules of interpretation lead us to the same conclusion.

[¶ 18] Our determination is based on interpretation of the Public Records Act (Wyo. Stat. Ann. § 16-1-201 et seq.) in conjunction with § 6-8-104 prior to its modification during the 2001 legislative session. The 2001 amendment is telling and is supportive of our ultimate decision; the legislature explicitly includes a statement that the information sought to be disclosed by Newspaper is not to be considered a public record. Specifically; Wyo. Stat. Ann. § 6-8-104(bb) (LexisNex-is 2001) provides:

(bb) No list or other record maintained by the division or other law enforcement agency pursuant to this section, which identifies an individual applicant or permit-tee shall be considered a public record.

The legislature went further to explicitly provide that the provisions of § 6-8-104(bb) shall apply retroactively to all records regarding the application and issuance of permits regarding concealed firearms under this section. 2001 Wyo. Sess. Laws ch. 63, § 2. Hence, the legislature could not have been any more clear in its desire to limit the access to any lists of those holding permits to carry a concealed weapon and other related information and that such information should not be considered a public record which may be released to the general public.

[¶ 19] Further, while we suppose that one could assert that the amendments to § 6-8-104 clarify that the legislature did not previously intend to limit access to the records sought by Newspaper, we do not believe that such is the case. To the contrary, the modifications made by the Wyoming legislature in 2001 must be seen as merely a clarification of the legislature’s original intentions concerning the limited dissemination of the names and identities of those issued a concealed weapons permit. Thus, these modifications may only be interpreted as an act by the legislature to leave no doubt as to this matter.

[¶20] We also note that the legislature further amended § 6-8-104 .at subsection (bb) in 2001 to provide that applications, listings, and other records maintained pursuant to this section which identify an individual shall be made available to other law enforcement agencies for purposes of conducting official business. In addition, the legislature decreed that the statistical report provided pursuant to subsection (z) of this section shall be a public record. These additional modifications by the legislature do not lessen our resolve that the legislature, from the inception of enactment of Wyo. Stat. Ann. § 6-8-104, desired to limit access to any lists of those holding permits to carry a concealed weapon and other related information. Rather, these modifications simply clarify the legislature’s intention to be cooperative with other law enforcement agencies outside of Wyoming in this area and to provide the general public with at least some information concerning the issuance of concealed weapons permits through the release of general statistics without obliterating the very purpose of the concealed weapons law.

[¶ 21] Finally, as our holding concerning the second issue raised on appeal by DCI is dispositive of this case, we find no necessity to address any other issues brought before this court by the parties upon appeal as they are rendered moot.

CONCLUSION

[¶ 22] Given those reasons set forth above, we reverse the order entered by the district court requiring DCI*to provide a list of all people living within Campbell County, Wyoming who currently had a permit or license to carry a concealed weapon under Wyoming law to Newspaper and further remand this matter back to the district court for entry of an order consistent with this opinion.

GOLDEN, Justice, filed a specially concurring opinion.

GOLDEN, J.,

specially concurring.

[¶ 23] The Court holds that in three subsections of Wyo. Stat. Ann. § 6-8-104 (Lexis 1999), the concealed weapons law, as well as from “the very purpose” of that law, the Wyoming legislature inferentially designated that the list of citizens given concealed weapon permits is privileged or confidential and, therefore, not a public record which must be disclosed to the public. Further, the Court concludes that the Wyoming legislature’s 2001 amendment, Wyo. Stat. Ann. § 6-8-104(bb) (LexisNexis 2001), which expressly declares that the list of concealed weapon permit holders is not a public record, “must be seen as merely a clarification of the legislature’s original intentions.... ” Because I disagree with the Court’s analysis, but think that the 2001 amendment applies to Frans-cell’s request, I concur in the result of the Court’s opinion.

[¶ 24] In the Wyoming Public Records Act, the legislature has declared that the term “public records” does not include documents made or received by any agencies of the state in connection with the transaction of public business if the documents are made “privileged or confidential by law.” Wyo. Stat. Ann. § 16^4-201(a)(v) (Lexis 1999). Over the years this Court has consistently maintained that it liberally construes the Act in favor of disclosure and narrowly construes exceptions. Houghton v. Franscell, 870 P.2d 1050, 1052 (Wyo.1994). I am inclined to think that exceptions to disclosure, like exceptions to liability (immunity), must be expressed, not implied. The legislature has shown over the years in different areas that it knows how to word express exceptions. In fact, within § 6-8-104(g), in which the Court claims to find an implication of confidentiality for the requested list, the legislature used obvious language to except from disclosure the written comments of a chief of police: “Submitted comments shall not be considered a public record.” It would have been easy for the legislature to use like language in subsection (g) or subsections (n) and (z) of § 6-8-104 had the legislature intended to except the requested list from disclosure. That it did not is dispositive for me.

[¶ 25] Let me say a few words about “the very purpose” of the concealed weapons law. The Court identifies that purpose to be concealing the identity of concealed weapon permit holders from general public knowledge. I am' not so sure. As I shall explain, I am more inclined to think that the law’s purpose is to protect the law-abiding citizen and the public from the violent crimes which have become all too prevalent in today’s society. Once upon a less crime-ridden time, many states, including Wyoming, had laws that prohibited an individual from carrying a concealed weapon. Clayton E. Cramer and David B. Kopel," “Shall Issue”: The New Wave of Concealed Handgun Permit Laws, 62 Tenn. L.Rev. 679, 681 (1995). Such laws were “designed to prevent a person with a weapon from taking some undue advantage over an unsuspecting adversary who is not aware that the person is carrying a weapon.” Dorelus v. State, 747 So.2d 368, 370 (Fla.1999) (internal quotation marks omitted). Stated in a slightly different way, secondary authority informs us that the object of the prohibition was “clearly that of protecting the public by preventing an individual from having on hand a weapon of which the public is unaware, and which might be used by that individual in a fit of passion.” 79 Am.Jur.2d Weapons and Firearms § 8 (1975).

[¶26] In Wyoming, in 1957, the legislature established a “discretionary issue” procedure under which county sheriffs in their discretion could issue permits to carry weapons to “travelers, merchant police, private detectives, or other persons who may be required by their work, vocation or profession to carry a weapon or weapons.” 1957 Wyo. Sess. Law ch. 201, § 1; Wyo. Stat. § 6-239 (Michie 1957). Factors bearing on the sheriffs exercise of discretion were the applicant’s general reputation and previous criminal record; the sheriff could revoke an issued permit at any time if the sheriff believed that the permitee’s conduct was contrary to the best interests of the state or its subdivisions. Id. In 1994, the Wyoming legislature dramatically changed the law. 1994 Wyo. Sess. Law ch. 41, § 1. The legislature abolished the “discretionary issue” system and replaced it with the “shall issue” system we have today which vests in the state attorney general the authority to issue concealed weapon permits. Id. Thus, Wyoming joined the growing number of states that have facilitated more liberal issuance of permits. John C. Lenzen, Liberalizing the Concealed Carry of Handguns by Qualified Civilians: The Case For “Cari'y Reform,” 47 Rutgers L.Rev. 1503, 1504 n. 4, 1506-07 (1995). According to some, “[c]arry reform is a legislative movement in which the states are unequivocally rejecting the assumption that civilians are incompetent to carry handguns in preparation for the lawful resistance of criminal aggression.” Id. at 1507. It has been reported that

empirical evidence from those states with liberal concealed carry laws strongly suggests that carry reform ... [does] not threaten public safety. Other data indicate that more prevalent concealed carry may be a powerful weapon in the fight against violent crime in two ways: (1) empowering individuals to defend against violent crime; and (2) deterring the commission of violent crimes in general.

Id. at 1513. And, it has been said that “[t]aken as a whole, [the] evidence suggests that more widespread and well-publicized concealed carry may reduce the rates of violent crime by deterring criminal behavior.” Id. at 1514. Moreover, it has been said that “the available evidence suggests that gun ownership among potential crime victims has as much, if not more, of an effect on violent crime than the activities of the entire criminal justice system.” Id. at 1536.

[¶27] In the final analysis, whether the validity of these reports, evidence, data, and statements is borne out in the long run remains to be seen. But it cannot be doubted that the. pendulum of public policy, as declared by the legislatures of the carry reform states, has swung over the century from protecting the public by preventing an individual from carrying a weapon to protecting the law-abiding individual and the public from violent crimes by permitting the law-abiding individual to carry a weapon. And, given that dramatic swing of the pendulum, I am more inclined to think that the true purpose of the current concealed weapon law is one of protecting the law-abiding citizen and the public from violent crimes which have become all too commonplace in our contemporary times.

[¶ 28] Let me say a few words now about the applicability of the 2001 amendment to Franscell’s request. Because the Court decided this case on a different ground, it did not address the issue whether the 2001 amendment, by which the legislature expressly designated the requested list not to be a public record, applied so as to preclude disclosure. The parties did address that issue, and I shall, albeit briefly, because I think that that amendment applies in this case. Pagel, the custodian of the requested list, relied on the 2001 amendment as an alternative ground for non-disclosure. The amendment, which was expressly retroactively applicable to concealed weapon permit records, became effective February 20, 2001, before the entry of the district court’s order of March 21, 2001, requiring Pagel’s disclosure of the requested list to Franscell. In their respective legal briefs on this point and related points, Pagel and Franscell thrust and parry concerning whether the district court decided the case on February 1, 2001, the date of the hearing, or on March 21, 2001, the date of the court’s order, and whether the legislature can alter the outcome of a case by changing the law retroactively. I shall not go into the details of the respective arguments on these several points; it is, I think, a close call. I am more inclined to conclude, however, that Pagel has the better legal position. Therefore, I would hold that the legislature’s 2001 amendment, with its express designation that the requested list is not a public record, is dispositive. Because the legislature designated that the requested list is not a public record, Pagel need not have disclosed it.

      . Before statehood in 1890, a Wyoming Territorial law prohibited carrying concealed weapons. 1890 Wyo. Terr. Sess. Laws ch. 73, § 96. Upon statehood, this became state law. 1890 Wyo. Sess. Laws ch. 35, § 1. It remained law until amendment in 1957. 1957 Wyo. Sess. Laws ch. 201, § 1; Wyo. Stat. § 6-239 (Michie 1957).