author: KITE, Justice.

text:
    2002 WY 148
    Jack M. CONNER and Nancy L. Conner, Appellants (Defendants), v. The BOARD OF COUNTY COMMISSIONERS, NATRONA COUNTY, Wyoming, Appellee (Plaintiff).
    No. 01-179.
    Supreme Court of Wyoming.
    Oct. 2, 2002.

      Jack M. Conner and Naney L. Conner, pro se, Evansville Wyoming, Representing Appellants.
    Eric A. Easton, Natrona County Attorney; and William W. Harden, Deputy County Attorney, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of expedited conference.

   KITE, Justice.

[11] Jack M. Conner and Naney L. Conner (the Conners) owned twenty acres of land near Alcova Reservoir burdened by an easement to Natrona County for a water system for the reservoir's recreational facilities. The parties discovered in 1997 that portions of the system were outside the easement boundaries. After unsuccessful negotiations, the Board of County Commissioners of Natrona County (the board) filed an eminent domain action. The district court ordered condemnation of 2.21 acres in fee simple. A jury trial was held to determine the compensation the Conners should receive. The district court granted a judgment as a matter of law for $3,827.72. We affirm.

ISSUES

[12] The Conners present the following issues for our review:

ISSUE I
Whether the plaintiff has the authority to file eminent domain on behalf of the federal government.
ISSUE II
Whether the district court failed to follow Rule 71.1(e)(1) of [the] Wyoming Rules of Civil Procedure.
ISSUE IH
Whether the district court erred in finding that the plaintiffs met all statutory requirements in filing an eminent domain action.
ISSUE IV
Whether the district court's decision was excessive and placed an unnecessary burden on the defendants.
ISSUE V
Whether the district court erred in dismissing the defendants['] inverse condemnation suit.
ISSUE VI
Whether the district court erred in not awarding legal fees and costs to defendants under § 1-26-506 and § 1-26-508.
ISSUE VII
Whether the district court acted properly in dismissing the jury and making a judgment as a matter of law.

The board phrases the issues as:

Issue I-
Whether the District Court properly found that Natrona County complied with the statutory requirements for an Eminent Domain Action, pursuant to W.S. § 1-26-504 and Wyoming Rules of Civil Procedure, Rule 71.1.
Issue II-
Whether the District Court's granting Plaintiff's Rule 50 Motion taking the case from the jury was proper due to the Appellant[s'] failure to provide competent evidence on the value of the taking and for failure of proof for othér damages.

FACTS

[13] The Conners' land was bordered on the south by federal lands controlled by the Bureau of Land Management and on the east by federal lands controlled by the Bureau of Reclamation. Since the mid-1950s, Natrona

County has leased Bureau of Reclamation lands pursuant to consecutive Memorandums of Understanding (MOUs) intended to provide for the development of Alcova Reservoir as a recreational area as well as for other activities.

[T4] In 1959, Miles Land and Livestock Company, the Conners' predecessor in interest, granted Natrona County a right of way easement, which provided in part:

Easement to Natrona County Parks and Recreation for Water Storage Tank and Water Line to Alcova Trailer Park, Situated in the NW4 NEMA, See. 38, TBON, R83W, 6th Principal Meridian, Natrona County, Wyoming; ...
The Board of Trustees of Natrona County Parks and Pleasure Grounds does hereby grant unto Miles Land and Livestock Company the right to have water from [the] above mentioned water storage tank or pump for the purposes of stock water and/or if in the future, Miles Land and Livestock Company should develop lots, they will have water for two lots from said storage tank from a % inch line.
Grantor also grants the right of ingress and egress to and from the said land for any and all purposes necessary for the public.

Natrona County constructed a water supply and distribution system comprised of a well, storage tank, supply line to the storage tank, and distribution line from the storage tank to the recreational facilities Operation of the system began in 1959 supplying water on a seasonal basis to a marina, ski club, boat club, 155 leased trailer sites, 99 cabins, and five general public campgrounds.

[T5] In 1997, after the Conners acquired ownership of the land burdened by the casement, the parties learned the well and water

lines from the well to the storage tank located on the Conners' property were outside the boundaries of the 1959 easement. Negotiations ensued between the parties but were unsuccessful. On April 7, 1998, the board passed a resolution authorizing the filing of eminent domain proceedings. The following day, the board filed a complaint and a motion for immediate entry in the district court. The Conners were served on April 9, 1998, with an order scheduling a show cause hearing for April 14, 1998, to determine whether the board should be granted immediate access to the Conners' property. The Conners objected contending W.R.C.P. 71.1(e)(1) precludes a hearing "sooner than 15 days after service of the order to show cause." The hearing went forward despite the objection, and the district court granted the board's motion for immediate entry. The Conners answered and counterclaimed for inverse condemnation.

[16] A condemnation bench trial commenced June 18, 1999, and continued for a second day on September 9, 1999. In its October 28, 1999, "Order for Hearing on Complaint for Condemnation," the district court held the board had complied with both the procedural requirements of W.R.C.P. 71.1 and the substantive requirements of the Wyoming Eminent Domain Act and had met its burden of proof. The district court ordered a portion of the Conners' property condemned consistent with the description contained in the board's Exhibit Z providing .9 acre for the roadway, .O1 acre for the pipeline, and an additional 1.3 acres where the well was located.

[17] After the condemnation trial, the parties participated in nonbinding mediation on the compensation the Conners should receive for the 2.21 acres condemned by the court's order and any other damage to the remainder of their parcel that might be caused by the taking. An informal damages hearing was held pursuant to W.R.C.P. TL.1(e)(@2)(C) and Wyo. Stat. Ann. §§ 1-26-601 through 1-26-604 (LexisNexis 2001). The district court determined the Conners should be paid $5,816.67. The Conners were not satisfied and filed a formal demand for a jury trial. The jury trial commenced in April 2001. The Conners called the board's appraiser, James E. Wren, who provided his conclusion the damage to the property was $3,827.72. They also called Mrs. Conner and their own witness Neil Hilston, neither of whom was able to provide an opinion concerning the diminution in value caused by the easement. The district court found the testimony of the board's appraiser to be the only probative evidence received. At the close of the Conners' case, the board moved for judgment as a matter of law pursuant to W.R.C.P. 50(a), contending there was no legally sufficient evidentiary basis for a reasonable jury to find in favor of the Conners on any issue. The board also moved to dismiss the Conners' inverse condemnation counterclaim for lack of proof. The district court granted both motions on the basis of W.R.C.P. 50(a) because the only possible verdict that could be supported by the evidence was a judgment for $3,827.72. This appeal followed.

STANDARD OF REVIEW

[18] Eminent domain proceedings are authorized by constitutional and statutory provisions and governed by W.R.C.P. 71.1. The district court determines all issues arising on the complaint for conderanation including notice, the plaintiff's right to make the appropriation, plaintiff's inability to agree with the owner, the necessity for the appropriation, and the regularity of the proceedings. W.R.C.P. Tl.l(e)(2)(A). Only the issue of compensation may be tried before a jury. W.R.C.P. TLI1G).
When we review the district court's determination of issues required by Rule TlLl(e)(2), "we uphold the judgment if there is evidence to support it, and in doing so we look only to the evidence submitted by the prevailing party and give to it every favorable inference which may be drawn therefrom, without considering any contrary evidence." Town of Wheatland v. Bellis Farms, Inc., 806 P.2d 281, 284 (Wyo.1991). Where the district court's ultimate conclusions decide questions of law, we afford no deference to its decision. See Coronado Oil Co. v. Grieves, 603 P.2d 406, 410 (Wyo.1979); see also Homesite Co. v. Board of County Comm'rs of Laramie, 69 Wyo. 236, 240 P.2d 885, 889 (1952).

Wyoming Resources Corporation v. T-Chair Land Company, 2002 WY 104, ¶¶ 7-8, 49 P.3d 999, ¶¶ 7-8 (Wyo.2002). This court reviews de novo the grant of a motion for judgment as a matter of law, and we accord no deference to the district court's decision. Cargill, Incorporated v. Mountain Cement Company, 891 P.2d 57, 62 (Wyo.1995).

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.

John Q. Hammons Inc. v. Poletis, 954 P.2d 1853, 1356 (Wyo.1998) (citations omitted); see also Rudy v. Bossard, 997 P.2d 480, 485 (Wyo.2000).

DISCUSSION

A. Record Designation

[19] In footnote two of its brief, the board objected to this court considering tran-seripts not previously designated by the Con-ners to be included in the record on appeal. The board specifically objected to consideration of the June 18, 1999, condemnation bench trial transcript. W.R.AP. 8.05 requires parties, simultaneously with the filing of their appellate briefs, to designate those portions of the district court record upon which they have relied. This court's docket reflects the Conners' brief was filed on January 29, 2002, without a designation of record. The Conners had a second opportunity to file a designation of record with a reply brief, but they did not do so.

[T 10] On April 3, 2002, the Conners filed a designation request with the district court asking that all available transcripts in the file be transmitted to the Supreme Court. On the same day, the board filed an objection in the district court to the transeript of the June 18, 1999, proceedings being included because the Conners did not designate it as a portion of the record on appeal. The caption of the board's pleading read "IN THE SUPREME COURT,] STATE OF WYOMING" and recited both the district court and the Supreme Court docket numbers. It appears the district court clerk subsequently transmitted all available transcripts to this court, including the transeript for the June 18, 1999, condemnation trial. The board filed no motion in this court to strike the tran-seript.

[¥11]} WRAP. 3.04 requires all questions as to the form and content of the record, except differences which may arise as to whether the record discloses what occurred in the trial court, to be presented to the appellate court by motion. The board did not follow this procedure because it filed its motion objecting to the transcript with only the district court. Though the caption referred to the Supreme Court, the motion was never filed with the clerk of this court.

Failure to comply with our rules of appellate procedure is ground for "such action as the appellate court deems appropriate, including but not limited to: refusal to consider the offending party's contentions; assessment of costs; dismissal; and affir-mance." WRAP. 1.08. We ... expect litigants who choose to proceed pro se to comply with the Wyoming appellate rules just as we expect trained lawyers to comply with those rules.

Basolo v. Gose, 994 P.2d 968, 969 (Wyo.2000).

[112] Both parties failed to fully comply with our rules of appellate procedure with regard to including the transcript in the appellate record. It would be unreasonable to grant the board's objection and disregard the transcript when the board itself failed to properly raise the issue. Therefore, we deem it appropriate to disregard the mutual errors and consider the certified record as submitted.

B. Federal Government Property Ownership

[118] For the first time on appeal, the Conners assert the board's exercise of its eminent domain power is defective because the water system benefits federally owned lands, the MOUs require certain federal authorizations which were not obtained, and the state eminent domain statutes do not provide the federal government the power to condemn property. They did not raise this issue in the district court. Further, they have not provided reasonable argument or authority here in support of their assertion. We will not consider issues presented for the first time on appeal or unsupported by cogent argument and pertinent authority. Metz Beverage Company v. Wyoming Beverages, Inc., 2002 WY 21, ¶ 35, 39 P.3d 1051, ¶ 35 (Wyo.2002); Shumway v. Worthey, 2001 WY 130, ¶ 16, 37 P.3d 361, ¶ 16 (Wyo.2001); Statezny v. State, 2001 WY 22, ¶ 11, 18 P.3d 641, ¶ 11 (Wyo.2001), Oatts v. Jorgenson, 821 P.2d 108, 111 (Wyo.1991).

C. Notice of W.R.C.P. 71.1(e)(1) Hearing for Immediate Entry

[114] W.RCP. Tl.lie)(1) directs that a hearing to determine whether an immediate need exists for the condemnor to enter the condemnees' property shall be held not sooner than fifteen days from the date the hearing order is served on the con-demnees. No one disputes the Conners were served the show cause hearing order on April 9, 1998, and the hearing was held on April 14, 1998, only five days later in violation of the rule. We cannot and do not condone such violation of the rules which are intended to provide an opportunity to all parties to fully participate in the proceedings. However, in this instance, although the breach is undeniable, we cannot discern what harm the Con-ners suffered from the error.

[T15] The Conners maintain the district court's decision to hold the hearing over their objection was an "exertion of arbitrary power." We cannot confirm whether the issue was even raised at the hearing because there is no transeript in the record and the order following the hearing does not mention any such objection. Conceivably, the Conners could have been harmed by not being able to properly conduct an investigation, contact witnesses, or otherwise prepare for the hearing. However, they have not addressed the nature of any harm they may have incurred, and we cannot rely upon speculation to determine harm occurred.

[1 16] For an error to warrant reversal, it must be prejudicial and affect an appellant's substantial rights. ABC Builders, Inc. v. Phillips, 632 P.2d 925, 934 (Wyo.1981). The Conners' ownership interest in their property is unquestionably a substantial right.

The Fourteenth Amendment to the Constitution of the United States, binding upon the states, provides "nor shall any State deprive any person of life, liberty, or property, without due process of law." In Article 1, § 6 of the Constitution of the State of Wyoming, a parallel provision appears, "[nlo person shall be deprived of life, liberty or property without due process of law." _... " 'It is basic that, before a property interest can be terminated, except in emergency situations, due process must be afforded to litigants in the form of notice and a meaningful opportunity to be heard."" Sandstrom v. Sandstrom, 880 P.2d 103, 106 (Wyo.1994) (quoting Lawrence-Allison and Associates West, Inc. v. Archer, 767 P.2d 989, 997 (Wyo.1989))....

Loghry v. Loghry, 920 P.2d 664, 667 (Wyo.1996); see also Murray v. Murray, 894 P.2d 607, 608 (Wyo.1995).

[117] Where there is no injury to the appellant, this court will overlook errors. ABC Builders, Inc., 632 P.2d at 935. For an error to be harmful, there must be a reasonable possibility that, in the absence of the error, the verdict might have been more favorable to a defendant. Id.

No error in either the admission or the exclusion of evidence and no error or defect in any ruling or order or in anything done or omitted by the court or by any of the parties is ground for granting a new trial or for setting aside a verdict or for vacating, modifying or otherwise disturbing a judgment or order, unless refusal to take such action appears to the court inconsistent with substantial justice. The court at every stage of the proceeding must disregard any error or defect in the proceeding which does not affect the substantial rights of the parties.

W.R.C.P. 61. W.R.A.P. 9.04 provides: "Any error, defect, irregularity or variance which does not affect substantial rights shall be disregarded by the reviewing court."

[118] Though a substantial right was at issue, the district court's order merely maintained the status quo as it had existed since 1959 pending resolution of the eminent domain proceedings. It is reasonable to infer some urgency existed because Natrona County was contractually obligated to provide water to the Alcova Reservoir reere-ational facilities when the new season began on April 15th. That water was necessary for the members of the general public who would be using those facilities We cannot verify what occurred in the district court because the Conners did not designate the hearing transcript. Consequently, no evidence exists in the record demonstrating harm occurred or the district court acted unreasonably. Therefore, we must assume the district court acted in a reasonable manner and this error was harmless. Cottonwood Valley Ranch, Inc. v. Roberts, 874 P.2d 897, 899 (Wyo.1994).

D. Attorney Fees for Violation of Immediate Entry Order

[119] Following the hearing, the district court issued an order permitting the board to enter the Conners' property to operate and maintain the water system. However, the order required the board to give the Conners notice prior to going onto the property. The Conners subsequently filed a motion for an order to show cause regarding an alleged violation of that requirement, and the court held the board in contempt. Neither the Conners' motion nor the hearing transcript was designated, and neither is in the record. The Conners argue they should be entitled to attorney fees pursuant to Wyo. Stat. Ann. §§ 1-26-506 and 1-26-508 (Lexis-Nexis 2001) because the board failed to comply with this order. However, the district court made no findings that the board had violated the provisions of § 1-26-508(b) making an award of litigation costs mandatory and expressly declined to award the Conners' fees and costs "at this time."

In considering the claim for attorney fees, the district court appropriately would be guided by the propositions that the statutory provision should be given a liberal interpretation to effectuate its salutary purposes and a prevailing plaintiff ordinarily should be awarded compensating attorney fees unless special cireumstances would render the award unjust. Bueno v. CF & I Steel Corporation, 773 P.2d 937 (Wyo.1989); State ex rel. Scholl v. Anselmi, 640 P.2d 746 (Wyo.1982), appeal dismissed, cert. denied 459 U.S. 805, 103 S.Ct. 28, 74 L.Ed.2d 43 (1982); [Board of Trustees of Weston County School District No. 1, Weston County v.] Holso, 584 P.2d 1009 [(Wyo.1978) ]; Annotation, Construction amd Application of Civil Rights Attorney's Fees Awards Act of 1976 (Amending 42 USCS [A] § 19884,2US-CAS1988USCAOOZOLQ), Providing That Court May Allow Prevailing Party, Other Than United States, Reasonable Aitor-ney's Fee In Certain Civil Rights Actions, 48 A.L.R.Fed. 248 (1979). In determining the reasonableness of that award, the district court will be guided by our Wyoming precedents. See, e.g., Delgado v. Delgado, 773 P.2d 446 (Wyo.1989).

Town of Upton v. Whisler, 824 P.2d 545, 552 (Wyo.1992).

[120] The Conners presume that, because the board was held in contempt, it should have been ordered to pay their fees and costs under the statute, and they claim the district court was "biased." These arguments present only bare assertions without evidentiary or legal support. Further, we have no means to review the district court proceedings and must assume the decision was in accord with the law. Cottonwood Valley Ranch, Inc., 874 P.2d at 899.

E. Statutory Requirements of Eminent Domain

[121] The Conners maintain the district court erred in finding the board met all the requirements of the eminent domain statutes:

(a) Except as otherwise provided by law, the power of eminent domain may be exercised to acquire property for a proposed use only if all of the following are established:
(i) The public interest and necessity require the project or the use of eminent domain is authorized by the Wyoming Constitution;
(ii) The project is planned or located in the manner that will be most compatible with the greatest public good and the least private injury; and (ii) The property sought to be acquired is necessary for the project.

Wyo. Stat. Ann. § 1-26-504(a) (LexisNexis 2001). In reviewing findings, we have said:

When a condemnor seeks to establish the requirement of necessity in an eminent domain proceeding, it need only show a reasonable necessity for the project. As explained by one court, the term "necessity," when used in the context of an eminent domain proceeding, means "reasonably convenient or useful to the public." City of Dayton v. Keys, 21 Ohio Misc. 105, 252 N.E.2d 655, 659 (1969). A showing that the project will increase public safety is sufficient. See Greasy Creek Mineral Company v. Ely Jellico Coal Company, 132 Ky. 692, 116 S.W. 1189 (1909).

Board of County Commissioners of Johnson County v. Atter, 734 P.2d 549, 553 (Wyo. 1987). And further:

To comply with W.S. 1-26-504(a)(@), the [board] needs to present evidence that it has planned or located the project in a manner most compatible with the greatest public good and the least private injury. The district court then reviews the evidence and decides whether the [board] has met its burden. Onee W.S. 1-26-504(a)@) has been complied with and the landowners still wish to contest the action, the burden shifts to them to show that the condemmnor acted in bad faith or abused its discretion as to that particular determination.

Town of Wheatland v. Bellis Farms, Inc., 806 P.2d 281, 283 (Wyo.1991) (footnotes omitted). Before filing an eminent domain complaint, a condermnor must make reasonable, diligent, and good faith efforts to negotiate with the condermnee. Wyo. Stat. Aun. § 1-26-509 (LexisNexis 2001). Efforts made in compliance with the statutes constitute prima facie evidence of the condemnor's good faith. Wyo. Stat. Ann. § 1-26-510 (LexisNexis 2001).

[122] After a two-day trial, the district court announced detailed findings in open court on each of the procedural requirements of W.R.C.P. 71.1 and the substantive requirements of the eminent domain statutes including Wyo. Stat. Ann. §§ 1-26-504, 1-26-509, and 1-26-512 (LexisNexis 2001) The findings included the project was in the public interest and necessity because water has special uses and needs wherever people are located; the water benefited many uses in the Alcova Reservoir area accessed by both members of the general public and private individuals; though there might be ways to relocate the water system, at that time its use in place was compatible with the greatest public good; though the board had argued condemnation of the entire twenty-acre parcel would eliminate future disputes, the least private injury would be incurred through condemnation of only the 2.21 acres affected by the existing system and described in the board's Exhibit Z; and, because the board met its burden of proof, the burden shifted to the Conners to show the board's bad faith or abuse of discretion. Although the parties were unable to agree, the court found the board complied with the negotiation requirements of § 1-26-509 through discussions, meetings, proposals, and counterproposals and no bad faith or abuse of discretion was shown.

[123] Our review of the transcripts and exhibits confirms the district court fairly and accurately considered the evidence and issued findings consistent with that evidence addressing all the requirements of the eminent domain statutes. This decision did not unnecessarily impact the Conners because the district court determined a fee simple grant of only 2.21 acres was sufficient to meet the governmental needs. Although the Conners take issue with those findings, the district court is the fact-finder assigned with the task of resolving the conflicts in the evidence. Leavell v. Linn, 884 P.2d 1364, 1368 (Wyo.1994).

[Wle cannot retry this case on appeal. Deference must be given to the opportunity of the trial court to judge the eredibility of the witnesses, and a reviewing court will not set aside the court's findings merely because it might have reached a different result. The trial judge is in the best position to assess the credibility of witnesses and weigh their testimony, and, thus, this Court accords considerable deference to the trial judge's findings.

Drake v. McCulloh, 2002 WY 50, ¶ 18, 43 P.3d 578, ¶ 18 (Wyo.2002). The findings were not clearly erroneous or against the great weight of the evidence; therefore, we will not disturb them.

F. W.R.C.P. 50(a) Motion

[124] The Conners contend the district court erred when, at the close of their case at the April 2001 damages trial, it dismissed their inverse condemnation claim, granted the board's W.R.C.P. 50(a) motion for judgment as a matter of law, and dismissed the jury. The purpose of this jury trial was to determine the amount of "just compensation" the Conners were entitled to receive because of the condemnation of 2.21 acres of their property. "[Jlust compensation equals the fair market value of all property rights lost or taken, measured by the difference between the fair market value of the property before the taking and of the remainder after the taking." Mayland v. Flitner, 2001 WY 69, ¶ 39, 28 P.3d 838, ¶ 39 (Wyo.2001). The "before and after test" at a minimum requires that the dispossessed landowner receive the fair market value of the acreage taken. The damages may also include any additional reduction of the remaining property's fair market value attributable to the nature of the taking.

[125] The burden of proof for condemnation damages is well established:

The landowners in eminent domain cases have the burden of proving the just compensation to which they are entitled. This is the general rule.
This is not an idle statement of a rule meant to be disregarded. The burden is placed on landowners because they have turned down the offer deemed fair by the condemnor and created the issue, even though raised somewhat differently than through the pleadings in the usual civil case. It would be of no use to even state the rule if not put into practice. It is designed for the use of the fact finder to aid in decision making in the face of a conflict of evidence which is usually the case in critical evidentiary areas in jury tried litigation.

Energy Transportation Systems, Inc. v. Mackey, 650 P.2d 1152, 1157 (Wyo.1982) (citations omitted). The Conners presented the testimony of Mrs. Conner, one of the property owners; Mr. Hillston, a realtor and appraiser; and Mr. Wren, the appraiser hired by the board. We have previously considered the weight and relevancy of an owner's testimony:

While an owner may testify to the value of his property, that does not make it competent. An owner is only qualified to express an opinion of value in a reasonable way and in accordance with the proper standards for determining fair market value; what it is worth to him is not a correct basis. If the owner's opinion is not within these rules, it has no probative value in a condemnation case.

Id. at 1156. We have likewise noted the trial court's broad discretion in permitting testimony regarding valuation. "Whether or not a witness has sufficient knowledge or special experience to testify as to his opinion on valuation is within the discretion of the trial court and will be disturbed on appeal only if clearly and prejudicially erroneous and then only in extreme cases." Ely v. Kirk, 707 P.2d 706, 712 (Wyo.1985).

[126] Our review of the hearing transeript shows Mrs. Conner provided vague, unsupported estimates as to the property's value. She had no particular knowledge or training that might qualify her opinion. She did not explain the time frames she used for showing comparable values. It was also unclear whether she was estimating the value of the condemned 2.21 acres or the remaining parcel. Mrs. Conner never testified as to the amount originally paid for the land. She did testify that each trailer lot on the adjacent property appraised at $7,000 and at least ten such lots could fit on the 1.3-acre condemned portion. However, she also expressed the unsupported opinion that the 1.3-acre plot could be sold for $30,000 to $40,000. Mrs. Conner provided no explanation on how she obtained this information except that she had conducted a land value study.

[127] Mr. Hillston was an appraiser and realtor with a number of years' experience who testified he agreed to help the Conners without charge. Mr. Hilston stated he could find no comparable properties in the area with condemned portions taken in the same manner and was, therefore, unable to perform an appraisal Because he could not perform an appraisal, he concluded he could not provide an opinion concerning the impact of the condemnation on the property's value. In his capacity as a realtor, Mr. Histon stated he thought he could list the Conners' property for sale in "probably [the] 22 to $23,000 an acre range." He did not explain whether this reference meant the entire twenty-acre parcel, just the condemned portion, or the remainder after condemnation, nor did he provide a foundation for his opinion.

During Mrs. Conner's and Mr. Hil-ston's testimony, the district court repeatedly reminded the parties, and particularly the Conners' attorney, that it was the con-demnees' burden to prove damages by establishing by competent evidence the values of their property before and after the taking. The court also offered to recess briefly and provide Wyoming case law on the before and after damages test and the burden of proof to the Conners' counsel. The district court went to extraordinary lengths to ensure the Conners' attorney understood the evidence that was required to prove- the condemnation damages and that Mrs. Conner's and Mr. Hilston's unsubstantiated statements did not constitute such evidence.

As their last witness, the Conners called Mr. Wren who had prepared a complete appraisal for the board "in accordance with the Uniform Standards of Professional Appraisal Practice" in order "to arrive at a supportable and defensible estimate of the market value for the whole parcel of the subject property, the market value of the proposed taking, and the estimate of any damages, if any." Mr. Wren testified he had twenty-six years of appraisal experience, had various appraisal designations, and was asso-clated with many state and national appraisal and real estate organizations. He explained the appraisal process and reviewed the four comparable properties he used to value the Conners' land. The comparable property valuations ranged from $1,400 to $1,625 per acre without adjustments to more accurately reflect the Conners' property and from $1,782 to $1,746.10 per acre with those adjustments. The adjusted values were reached with the understanding the Conners could build a home and use the entire twenty-acre parcel. Mr. Wren concluded the Conners incurred no damages beyond the loss of value of the land condemned. He valued the whole twenty-acre parcel before the taking at $35,000, the condemned 2.21 acres at $8,827.72 (2.21 x $1,782), and the parcel after the taking at $31,172.28. Mr. Wren concluded the only damage that would occur from the taking was the loss of the 2.21 acres. The Conners presented no evidence concerning any damages they may have incurred due to the board's alleged inverse condemnation of their property prior to the eminent domain action.

[T30] At the close of the Conners' case, the court removed the jury while the board moved for dismissal of the inverse condemnation counterclaim and judgment as a matter of law on the damages pursuant to W.R.C.P. 50(a)(1). The court granted judgment as a matter of law on both motions holding the Conners did not present competent evidence upon which a jury could rely to determine eminent domain damages other than the expert opinion of the board's appraiser. Nor did they present evidence to support their inverse condemnation counterclaim. Following its ruling, the district court brought the jury back in and explained the motions and its ruling that the jury's role as fact-finder was no longer necessary because the only competent evidence consistent with the established legal standard proved the Conners should be awarded $3,827.72 in damages.

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 nonmov-ing 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 used. If the inferences favorable to the movant are subject to doubt, or if parallel inferences can be drawn, the motion appropriately is denied.

Wyoming Medical Center, Inc. v. Murray, 2001 WY 63, ¶ 7, 27 P.3d 266, ¶ 7 (Wyo.2001) (citations omitted).

[T81] The district court's reasons for dismissal are borne out by our de novo review. We concur with the district court's remarks on the record regarding the eminent domain damages:

The Supreme Court has noted that there has to be proper foundation for the opinions relative to the before and after taking approach, and that it needs to be presented by competent evidence....
We do not have that here, however. We have ... Mrs. Conner espousing some very loose estimates and valuations as to the value of the property I think before the taking, with an estimate of what that property might be with water and electric.
We had some information from Mr. Hil-ston as to what he might list the property before but we have little or no other appraisal information from him and surely no opinion testimony given in accord with the requirements that there be competent evi-denee set forth within the structures of the before and after taking.
So we have the [Conners] calling Mr. Wren and he is the sole source ... of proper appraisal information to aid the Court and the jury in what that taking should be.... [HJlis evaluation was based upon the taking of the entire 2.21 acres, but basing it upon the value of the full 20-acre parcel before and after the taking, based upon comparables and accepted real estate appraisal information ....

"Despite the fact that judgment as a matter of law should be granted cautiously and sparingly, the district court has an obligation to direct entry of such a judgment where there is legally insufficient evidence to support a verdict on a particular issue." Sayer v. Williams, 962 P.2d 165, 167 (Wyo.1998); see also Rudy, 997 P.2d at 485. We conclude the district court properly granted judgment as a matter of law on the inverse condemnation counterclaim and the damages valuation.

[182] Affirmed.

      . The Conners were represented by counsel in the district court and appear pro se on appeal.

      . Negotiations were initially conducted between the Bureau of Reclamation and the Wyoming Parks Commission. Natrona County was involved as a licensee of the Wyoming Parks Commission. By the 1966 MOU, Natrona County was a direct party to the agreement.

      . Miles Land and Livestock Company owned the property at the time the easement was originally granted and recorded. The property was sold to Keith V. Asbell, W.R. Asbell, and Henry A. Hitch, Jr. in 1975 and then to Mr. Conner and Garry A. Frank in 1996. In October of 1997, Mr. Conner and Mr. Frank transferred the property to the Conners.

      . Natrona County is contractually obligated to have the water system operational from April 15th through October 15th, and the water system is shut down in the off season.

      . Proposals and counterproposals were exchanged including in part the Conners' requests that Natrona County install equipment to provide a year round water source to the property, clean up the trailer court, install electric fences, and pay various sums of money for installing a water line to a work shop and grading a road without permission.

      . Section 1-26-506 provides:
      (a) A condemnor and its agents and employees may enter upon real property and make surveys, examinations, photographs, tests, soundings, borings and samplings, or engage in other activities for the purpose of appraising the property or determining whether it is suitable and within the power of the condemnor to condemn if the entry is:
      (i) Preceded by prior notice to and written authorization from the owner or his agent;
      (ii) Undertaken during reasonable hours, normally during daylight;
      (iii) Accomplished peaceably and without inflicting substantial injury.
      (b) The entry and activities authorized by this section do not constitute a trespass.
      (c) The condemmor is liable under W.S. 1-26-508 for damages resulting from activities authorized by this section.
      Section 1-26-508 provides:
      (a) A condemnor is liable for physical injury to, and for substantial interference with possession or use of, property caused by his entry and activities upon the property. This liability may be enforced in a civil action against the condemnor or by application to the court as provided by subsection (c) of this section unless voluntarily paid by the condemnor.
      (b) In an action or other proceeding for recovery of damages under this section, the prevailing party shall be allowed his costs. In addition, the court shall award the condemnee his litigation expenses incurred in any proceeding under W.S. 1-26-507 if it finds that the condemnor:
      (i) Entered the property unlawfully;
      (if) Entered upon the property lawfully but thereafter engaged in activities upon the property which caused significant damage to the property not reasonably necessary to the purposes of the entry; or
      (iii) Failed substantially to comply with an order made under W.S. 1-26-507.
      (c) If funds are on deposit under W.S. 1-26-507, the owner or other person entitled to damages under subsection (a) of this section may apply to the court for an award of the amount he is entitled to recover. The court shall determine the amount and award it to the person entitled thereto and direct that its payment be made out of the money on deposit. If the amount on deposit is insufficient to pay the full amount, the court shall enter judgment against the condemnor for the unpaid portion.

      . Only a partial transcript of the September 9, 1999, proceedings was included in the record on appeal. The portion provided is an excerpt of the district court's oral ruling.

      . Section 1-26-512 provides:
      (a) A public entity may not commence a condemnation action until it has first adopted a written resolution in substantial conformity with this section, authorizing commencement and prosecution of the action. The authorization may be amended or rescinded at any time before or after commencement of the condemnation action but if rescinded the public entity shall pay the litigation expenses of the con-demnee.
      (b) In addition to other requirements imposed by law, the condemnation authorization required by subsection (a) of this section shall include:
      (i) A general statement of the proposed public use for which the property is to be taken and a reference to the specific statute that authorizes the taking of the property by the condemnor;
      (i) A description of the general location and extent of the property to be taken, with sufficient detail for reasonable identification; and
      (iii) A declaration that a taking of the described property is necessary and appropriate for the proposed public use.

      . These findings are also reflected in the written order in a more abbreviated form.

      . Inverse condemnation is distinct from eminent domain. 2A Julius L. Sackman, Nichols on Eminent Domain § 6.14 (3d ed.2001). Eminent domain refers to the legal process by which the government asserts its authority to condemn property. Id. Inverse condemnation is a cause of action a landowner may pursue to recover just compensation for a taking of his or her property when condemnation proceedings have not been instituted. Id.; Cheyenne Airport Board v. Rogers, 707 P.2d 717 (Wyo.1985), dismissed, 476 U.S. 1110, 106 S.Ct. 1961, 90 L.Ed.2d 647 (1986). The Conners' answer and counterclaim filed April 13, 1998, sets forth a counterclaim for inverse condemnation pursuant to Wyo. Stat. Ann. § 1-26-516 (LexisNexis 2001).


source: Caselaw Access Project

author: VOIGT, Justice.

license: Public Domain

text:
    2002 WY 137
    Charles RODIACK, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). John Rodiack, Appellant (Defendant), v. The State of Wyoming, Appellee (Plaintiff).
    Nos. 01-114, 01-115.
    Supreme Court of Wyoming.
    Sept. 23, 2002.
    Mike Cornia, Evanston, Wyoming, Representing Appellants.
    Hoke MacMillan, Attorney General; Paul S8. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Kimberly A. Baker, Senior Assistant Attorney General, Representing Ap-pellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of expedited conference.

   VOIGT, Justice.

[11] John Rodiack and Charles Rodiack (appellants), father and son, appeal their convictions for felony interference with a peace officer. They claim that their right to a speedy trial was violated and they raise several evidentiary issues. We conclude that the violation of W.R.Cr.P. 48 requires reversal, and we remand to the district court for entry of an order of dismissal without prejudice.

ISSUES

1. Does the violation of W.R.Cr.P. 48(b) require reversal of the appellants' convie-tions?

2. Was it error in a joint trial to admit one appellant's out-of-court statements?

3. Was the jury properly instructed on the law?

4. Was it error not to allow evidence to rebut Officer Davies' direct testimony and evidence as to his violent nature?

5. Was it error to allow evidence of uncharged misconduct as to John Rodiack?

6. Was there sufficient evidence to support the convictions?

FACTS

[12] On the evening of November 24, 1999, Officers Adam Davies (Davies) and Tim Robinson (Robinson) of the Rock Springs Police Department entered the Bomber's Sports Bar to perform a bar check. The appellants were present in the bar. While the officers spoke to the bartender, Charles Rodiack approached Davies. The officers' version and the appellants' version of what followed differ considerably. Given our disposition of this case, the detailed facts of the fracas are not too significant. Suffice it to say that a conversation between Charles Ro-diack and Davies about Davies' earlier arrest of Charles Rodiack's girlfriend, Toni Beard, ended up in a full-scale brawl involving Charles Rodiack, John Rodiack, Davies and Robinson. John Rodiack and Charles Ro-diack were both arrested and charged with felony interference with a police officer, and both were convicted in a joint jury trial.

DISCUSSION

SPEEDY TRIAL

[13] A criminal defendant's right to a speedy trial is guaranteed by the Sixth Amendment to the United States Constitution. However, before embarking on a constitutional analysis, we first review claims of a speedy trial violation under W.R.Cr.P. 48(b). Hauck v. State, 2001 WY 119, 112, 36 P.3d 597, 600 (Wyo.2001). Relevant to the current inquiry are five provisions of W.R.Cr.P. 48(b):

(2) A criminal charge shall be brought to trial within 120 days following arraignment unless continued as provided in this rule.
"eo deck
(4) Continuances not to exceed six months from the date of arraignment may be granted by the trial court as follows:
(A) On motion of defendant supported by affidavit; or
(B) On motion of the attorney for the state or the court if:
(i) The defendant expressly consents;
(ii) The state's evidence is unavailable and the prosecution has exercised due diligence; or
(iii) Required in the due administration of justice and the defendant will not be substantially prejudiced; and
(C) If a continuance is proposed by the state or the court, the defendant shall be notified. If the defendant objects, the defendant must show in writing how the delay may prejudice the defense.
(5) Any request to continue a trial to a date more than six months from the date of arraignment must be directed to the court to which appeals from the trial would be taken and may be granted by that court in accordance with paragraph (4).
shook ok
(8) A dismissal for lack of a speedy trial under this rule shall not bar the state from again prosecuting the defendant for the same offense unless the defendant made a written demand for a speedy trial or can demonstrate prejudice from the delay.

[T4] For the most part, application of W.R.Cr.P. 48(b) is a simple matter of arithmetic. The rule was designed so that, at the outset of the case, the district court would set a trial date within 120 days of the arraignment. If necessary during that 120-day period, the district court could continue the trial to a later date within the six-month limit. When the 120th day arrived, if the trial had not been held or continued pursuant to the rule, the case was to be dismissed. If, for some reason, the trial could not be reset to a date within the six-month limit, the district court had to apply to this Court for approval to hold the trial beyond that limit.

[T5] There does not appear to have been rauch of an attempt in the instant case to meet the requirements of W.R.Cr.P. 48(b). John Rodiack and Charles Rodiack were arraigned in the district court on May 8, 2000. The rule required the trial to take place or be continued as provided in the rule within 120 days of the date of arraignment, which was September 5, 2000. The rule also provided that the district court could continue the trial for up to six months from the date of arraignment, but onee again, only as provided in the rule. That date was November 4, 2000. What actually happened was that on July 14, 2000, sixty-seven days after arraignment, the district court signed an order setting a scheduling conference for August 2, 2000. On August 30, 2000, the district court filed another order setting the joint trial for October 17, 2000. That joint trial date was forty-two days beyond the 120-day setting limit and there had been no continuances granted as provided by the rule. These cases should have been dismissed on September 5, 2000. Instead, the joint trial was held on November 18, 2000.

[16] It is true that, on August 3, 2000, the day after the scheduling conference, John Rodiack and Charles Rodiack each signed a Waiver of Speedy Trial specifically referene-ing the rule's 120-day limit. Perhaps those waivers were meant to be the equivalent of a motion for continuance by the appellants under W.R.Cr.P. 48(b)(4)(A), or the equivalent of a consent to a similar motion by the State under W.R.Cr.P. 48(b)(4)(B)(i). We cannot tell from the records, which contain neither a setting within the 120-day limit nor a motion for a continuance beyond the 120-day limit.

[17] If this was the only speedy trial problem, there might be a stronger argument for the proposition that such a technical violation does not warrant reversal and dismissal. But the joint trial was not held on its assigned date of October 17, 2000. During a motion hearing on August 25, 2000, it came to the attention of the district court and counsel that the joint trial might take more than the allotted three days. After the district court and counsel evaluated their calendars, the joint trial was reset for November 13, 2000, which is the date it was eventually held. That date was beyond six months from the date of arraignment.

[18] The district court and counsel were aware of, but not too concerned with, the six-month deadline contained in W.R.Cr.P. 48(b)(5). The following exchange took place during the August 25, 2000, motion hearing:

THE COURT: [Defense Counsell, when is the next date you'll be available to try this case if it can't be tried on October 17?
[DEFENSE COUNSEL]: It would have to be in November, your Honor. And I think we have problems with the six month thing if we do that. I'm not certain.
THE COURT: I don't have a problem with it.
[DEFENSE COUNSEL]: ther. We can go to November. I don't ei-

[19] Following this discussion, the district court addressed both John Rodiack and Charles Rodiack on the record, explained to them their right to a speedy trial, and determined that neither of them was opposed to the November trial date. The State does not, however, argue that the appellants' waivers of their right to a speedy trial negated this clear violation of W.R.Cr.P. 48(b). Instead, the State concedes the violation. This concession is understandable, given our previous holdings that the provisions of W.R.Cr.P. 48(b) are mandatory. Detheridge v. State, 963 P.2d 283, 285 (Wyo.1998); Yung v. State, 906 P.2d 1028, 1082 (Wyo.1995); McDermott v. State, 897 P.2d 1295, 1299 (Wyo.1995).

[110] These violations of both the 120-day limit and the six-month limit of W.R.Cr.P. 48(b) require reversal of the appellants' convictions. Consequently, no separate constitutional analysis is necessary on this primary issue. The remaining question, however, is whether the appellants may be retried. W.R.Cr.P. 48(b)(8) allows retrial unless a "defendant made a written demand for a speedy trial or can demonstrate prejudice from the delay." W.R.Cr.P. 48(b)(8). Since neither John Rodiack nor Charles Rodiack filed a written demand for a speedy trial, the only issue is whether they were prejudiced by the delay.

[111] The burden of proving prejudicial delay in a speedy trial argument lies with the appellant. Almada v. State, 994 P.2d 299, 305 (Wyo.1999). For some reason, rather than presenting evidence of such prejudice, the appellants here simply aver that "the only permissible remedy is dismissal with prejudice." This, of course, flies in the face of W.R.Cr.P. 48(b)(8), which provides that violation of the rule does not automatically bar retrial. In urging us to remand for dismissal without prejudice, the State directs us to the four-part test articulated by the United States Supreme Court in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 88 L.Ed.2d 101 (1972), that we have previously adopted for the consideration of speedy trial issues under the constitution: (1) the length of the delay; (2) the reason for the delay; (8) the defendant's assertion of his right; and (4) the prejudice to the defendant. See Sides v. State, 963 P.2d 227, 229 (Wyo.1998). The ultimate question is "whether the delay in bringing the accused to trial was unreasonable, that is, whether it substantially impaired the right of the accused to a fair trial." Wehr v. State, 841 P.2d 104, 112 (Wyo.1992).

[112] John Rodiack and Charles Rodiack went to trial 189 days after they were arraigned. The length of the delay was sixty-nine days after the 120-day limit and only nine days after the six-month limit. Although no motions were filed and the records are not perfectly clear on the matter, it appears that the delay resulted only from the coordination of the district court's and counsels' calendars. Neither appellant ever asserted his right to a speedy trial and neither appellant has shown any prejudice by the delay. There was nothing about the delay that affected the trial's fairness. Thus, dismissal of these charges should be without prejudice.

OraER Issues

[113] Since these cases are being reversed on the speedy trial issue, we need not consider whether the other issues raised by the appellants require reversal. The prospect of a retrial, on the other hand, prompts us to make the following comments in regard to two of those issues, in an effort to avoid error in a retrial:

1. An out-of-court statement by one defendant may not be hearsay as to him, but in a joint trial, care must be taken in admitting such evidence because the statement may be hearsay as to the other defendant. W.R.E. 801(d)(2)(A) and 802.

2, The crime of misdemeanor interference with a peace officer may be a lesser-included offense to the crime of felony interference with a peace officer. Mueller v. State, 2001 WY 134, TY 8-17, 36 P.3d 1151, 1155-58 (Wyo.2001).

[T14] We decline to address the other issues presented. They are fact-dependent issues involving the admissibility of evidence and, not knowing the circumstances under which they may or may not again arise, it would not be appropriate for this Court to attempt to guide the discretionary decision of the district court.

CONCLUSION

[115] Both the 120-day and the six-month limits of W.R.Cr.P. 48(b) were violated in these related cases. Trial was not set within 120 days of arraignment, no motions for continuance beyond 120 days were made as provided by the rule, and the district court did not seek approval from this Court to set the joint trial beyond six months from the date of arraignment. The appellants did not, however, make demand for a speedy trial nor have they shown prejudice by the delay.

[116] We reverse and remand to the district court for entry of an order of dismissal without prejudice.

      . W.R.Cr.P. 48(b) was amended in 2001, with "180 days" substituted for "120 days" throughout, and allowing trial courts to grant continuances beyond 180 days. The present case is being decided under the version of the rule previously in effect.


author: LEHMAN, Justice.

text:
    2002 WY 140
    Roland C. BRYANT, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING DEPARTMENT OF TRANSPORTATION, Appellee (Respondent).
    No. 01-146.
    Supreme Court of Wyoming.
    Sept. 25, 2002.

      R. Michael Vang of Brown, Nagel & Hiser, LLC, Laramie, WY, Representing Appellant.
    Hoke MacMillan, Attorney General; Rowena L. Heckert, Deputy Attorney General; and Mary L. Loos, Assistant Attorney General, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ., and BRACKLEY, D.J.

       Chief Justice at time of expedited case conference.

   LEHMAN, Justice.

[T1] Appellant Roland Chester Bryant appeals from the district court's affirmance of the Office of Administrative Hearing (OAH) order, which sustained the implied consent suspension of his driver's license as well as the disqualification of his commercial driver's license.

[12] We affirm.

ISSUES

[13] Bryant offers the following issues for our consideration:

1. Did the Hearing Examiner err when she indicated that the arresting officer did not need to have proof that he was certified to operate an approved chemical test pursuant to Wyoming Statute § 81-6-105(a), because the Licensee refused a preliminary breath test?
2. Can a person be considered a refusal for not taking a portable breath test (PBT), if the PBT is not an approved chemical test under the regular and commercial implied consent laws?

Appellee Wyoming Department of Transportation (Wy DOT) presents its own issues:

1. When Appellant has refused to submit to chemical testing under the implied consent statutes, must the arresting officer provide evidence of his certification to operate the testing device for the license suspension to be valid?
2. Is there substantial evidence in the record to prove that Appellant refused chemical testing under the implied consent statutes for non-commercial and commercial drivers?

FACTS

[14] At approximately 10:54 p.m. on December 10, 1999, Wyoming State Highway Patrol Officer N.M. Bisceglia clocked a semi-truck driven by Bryant at 95 mph in a posted 75 mph speed zone. As Officer Bisceglia turned onto the interstate to follow the truck, he observed Bryant fail to signal a lane change. Officer Bisceglia activated his overhead lights, but it took approximately another one-quarter mile before Bryant reacted to the officer's flashing lights and pulled over. As Bryant pulled the truck to the right, he ran over a delineator post and stopped with the left side of the truck remaining on the traveled portion of the highway. Officer Bis-ceglia requested various documents from Bryant, including his driver's license, and Bryant provided all the requested documentation. Officer Bisceglia summoned Bryant to his patrol car. While Bryant was in Officer Bisceglia's car, Officer Bisceglia noticed an odor of aleohol on Bryant's breath and noted that his eyes were watery and bloodshot. When Officer Bisceglia asked Bryant if he had been drinking, Bryant replied that he had consumed a bottle of Vicks 44-D.

[15] Officer Bisceglia asked Bryant to perform standardized field sobriety tests so that he could assess whether Bryant was able to drive safely. Bryant agreed to perform the Horizontal Gaze Nystagmus (HGN) test, and when he did, Officer Bisceglia observed all three indicators of intoxication, specifically lack of smooth pursuit, distinct nystagmus prior to 45 degrees, and distinct nystagmus at maximum deviation. When Officer Bisceglia asked Bryant to perform a preliminary breath test, Bryant refused, stating that he would show up on the test because he had consumed the Vicks 44-D. He subsequently refused to perform any more sobriety tests. He also refused to submit to chemical testing. Officer Bisceglia informed Bryant that he had reason to believe that he was intoxicated and placed him under arrest for driving while under the influence of intoxicants (DWUI). When Officer Bisceglia inventoried the truck's contents, he discovered a bottle of rum that was approximately two-thirds empty underneath the bed of the sleeper. He did not find any bottles of cold medication.

[16] In his signed statement, Officer Bis-ceglia indicated under penalty of perjury that he had read Bryant the following advise-ments and that Bryant nevertheless refused to submit to any chemical testing:

Implied Consent Advisement: ...
I read the Implied Consent Advisement to the driver according to W.S. 81-6-102 for a Non-Commercial Offense.
I read the Implied Consent Advisement to the driver according to W.S. 81-6-102 & 31-7-307 for a Commercial Offense.
Chemical Test: ...
The driver was requested to submit to the chemical test(s) prescribed by my agency but refused to do so.

Bryant subsequently signed a Refusal form, which provided in part:

2, You have been advised by a peace officer of the requirement to submit to all chemical tests and that your failure to do so shall result in a suspension of your driver's license or your privilege to operate a motor vehicle.

[17] As a result of Bryant's refusal to submit to chemical testing, WyDOT notified Bryant of its intent to suspend his driver's license for six months and to disqualify his commercial license for one year. Bryant requested a contested case hearing, and the OAH heard the case on March 15, 2000. Bryant was the sole witness to testify, and he claimed that he did not remember being informed of the potential one-year penalty for refusing to consent to chemical testing under the commercial disqualification statute. He also testified that although he signed the Refusal form after he was arrested, he did not remember being given the specific implied consent advisements. The OAH sustained the implied consent suspension and the commercial disqualification. Bryant filed a timely petition for judicial review with the district court. After analyzing the record and the briefs of the parties, the district court affirmed the OAH's decision, and this appeal followed.

STANDARD OF REVIEW

[T8] Our review of proceedings that involve the suspension of a driver's license is governed by Wyo. Stat. Ann. § 16-8-114(c) (LexisNexis 2001), which provides in pertinent part:

(c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
(ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
(A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
(E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.

[19] We do not afford any special deference to the district court's decision when we review a matter initiated before an administrative agency. Rather, this court reviews the case as if it came directly from the administrative agency. Nellis v. Dep't of Transp., 932 P.2d 741, 743 (Wyo.1997). Our review must focus on the evidence and consider the reasonableness of the agency's exercise of judgment while determining if the agency committed errors of law. Casper Iron & Metal, Inc. v. Unemployment Ins. Comm'n, 845 P.2d 387, 392 (Wyo.1993). If the agency committed any errors of law, this court must correct them. State v. Bannon Energy Corp., 999 P.2d 1306, 1308 (Wyo.2000).

[110] Further, in appeals where both parties submit evidence at the administrative hearing, appellate review is limited to application of the substantial evidence test. Newman v. State ex rel. Workers' Safety and Compensation Div., 2002 WY 91, 1 22, 49 P.3d 168, 1 22 (Wyo. 2002). This court is required to review the entire record in making its ultimate determination on appeal. Newman, at I 19 and 1 % 24-26. 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 ageney 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.

Newnan, at 11 12 (quoting State ex rel. Workers' Safety and Compensation Div. v. Jensen, 2001 WY 51, T 10, 24 P.3d 1133. 1 10 (Wyo.2001).

[111] Even when the factual findings are found to be sufficient under the substantial evidence test, Newman further concludes 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. A purely demonstrative listing is provided of situations which could warrant the consideration of the arbitrary-and-capricious standard in addition to the substantial evidence test. Newman, at 1 28. However, this appeal presents no such unique cireum-stances.

[112] To answer the issues presented in this case, we must interpret the relevant statutes. We endeavor to interpret statutes in accordance with the legislature's intent. We begin by making "an inquiry respecting the ordinary and obvious meaning of the words employed, according to their arrangement and connection." Rasmussen v. Baker, 7 Wyo. 117, 188, 50 P. 819, 828 (1897); see also State Dep't of Rev. & Taxation v. Pacificorp, 872 P.2d 1163, 1166 (Wyo.1994).

When the court determines, as a matter of law, that a statute is clear and unambiguous, it must give effect to the plain language of the statute and should not resort to the rules of statutory construction. If, on the other hand, the Court determines that a statute is ambiguous, it may use extrinsic aids of statutory interpretation to help it determine the legislature's intent.

State ex rel. Workers' Safety & Compensation Div. v. Bruhn, 951 P.2d 373, 376 (Wyo.1997) (citations omitted).

DISCUSSION

A. Proof of a Valid Permit

[113] Bryant first argues that both the non-commercial and commercial implied consent suspensions must be vacated. He maintains that the record contains no evidence that Officer Bisceglia provided any proof to demonstrate that he possessed a valid permit to conduct chemical testing pursuant to Wyo. Stat. Aun. § 31-6-105(a) (LexisNexis 2001). WyDOT counters that when Bryant refused to submit to chemical testing under the implied consent statutes, evidence of Officer Bisceglia's certification to operate the testing device became irrelevant. Bryant does not challenge any of the hearing examiner's findings. We must, therefore, determine whether the hearing examiner's conclusions of law are in accordance with the law.

[N14] Bryant relies upon Wyo. Stat. Ann. § 81-6-105(a) in making his argument. That section provides:

(a) Chemical analysis of the person's blood, breath or urine to be considered valid under this section, shall be performed according to methods approved by the department of health and by an individual possessing a valid permit to conduct the analysis. Permits shall be issued by the department of health for this purpose. The department of health may promulgate and approve satisfactory methods in order to ascertain the qualifications of individuals permitted to conduct the analysis and shall issue to qualified individuals permits which are subject to termination or revocation by the department of health.

Both parties assert that this statute is clear and unambiguous. We agree. We must therefore apply its plain meaning.

We read a statute so that every word, clause and sentence is given effect so, if possible, no part of the statute is rendered inoperative or superfluous. In construing the statute, our main objective is to effectuate the intent of the legislature.

Bolack v. Chevron, U.S.A. Inc., 963 P.2d 237, 241 (Wyo.1998) (citations omitted).

[115] While we agree with Bryant that the plain language of this statute requires testing to be performed by an individual who possesses a valid permit to conduct the analysis, we do not see where it requires the arresting officer to provide evidence that he or she possesses a valid permit as a prerequisite to testing the individual. This is especially true when no tests are performed because testing is refused. > Our analysis of Wyo. Stat. Ann. § 81-6-105(a) convinces us that the plain and ordinary meaning of the statute requires testing to be performed by a person who possesses a valid permit, who may or may not be the arresting officer, only when a chemical analysis of a person's blood, breath, or urine is actually performed. Because the testing was never performed, the question of whether Officer Bisceglia, or whomever would have conducted the test, possessed a valid permit is irrelevant.

B. Proof of Approved Testing Method

[116] Bryant next asserts that both the implied consent suspension and commercial disqualification must be vacated because Officer Bisceglia failed to provide proof that he offered Bryant a chemical test approved by the department of health (DOH) pursuant to Wyo. Stat. Ann. § 31-6-105(a), which is quoted in our discussion of the last issue. Bryant does not challenge the accuracy of Officer Bisceglia's sworn statement, but instead focuses on the language in the Officer's Signed Statement, which states that "(tlhe driver was requested to submit to the chemical test(s) prescribed by my agency but refused to do so." Bryant maintains that this language demonstrates that Officer Bis-ceglia merely requested Bryant to submit to chemical tests prescribed by the Wyoming Highway Patrol, not necessarily those prescribed by the DOH. We agree with Bryant that the "Officer's Signed Statement" does not indicate that he was specifically offered and refused tests prescribed by the DOH. However, we have not found any law that requires WyDOT to demonstrate that Bryant was offered a chemical test approved of by the DOH in this situation.

[117] Wyo. Stat. Ann. § 81-6-102 (Lex-isNexis 2001) provides authority for driver's license suspensions when someone has refused to submit to chemical testing:

(i) Any person who drives or is in actual physical control of a motor vehicle upon a public street or highway in this state is deemed to have given consent ... to a chemical test or tests of his blood, breath or urine for the purpose of determining the alcohol concentration ... of his blood....
(M) For tests required under this act, the arrested person shall be advised that:
(A) His failure to submit to all required chemical tests requested by the peace officer shall result in the suspension of his Wyoming driver's license or his privilege to operate a motor vehicle for a period of six (6) months for a first offense ...
(D) If he refuses to take all required tests, he shall not be eligible for limited driving privileges.
(d) If a person under arrest refuses upon the request of a peace officer to submit to a chemical test designated by the agency employing the peace officer as provided in subsection (a) of this section, none shall be given except in cases where serious bodily injury or death has resulted. The peace officer shall submit his signed statement to the department. The statement submitted by the officer shall contain:
i) That the person refused to submit to a test upon the request of the peace officer.

For purposes of this case, the requirements under Wyo. Stat. Ann. § 31-7-807 (Lexis-Nexis 2001) for commercial disqualifications are virtually identical.

[T18] Bryant complains that nothing in the record indicates what type of chemical tests Officer Bisceglia's ageney prescribes. What the record does show, however, is that Officer Bisceglia gave Bryant the implied consent advisement required under Wyoming law, and Bryant refused to submit to chemical testing as required. Bryant cannot establish that any chemical analysis of his blood, breath or urine would not have been performed according to methods approved of by the DOH because he refused chemical testing. The question of whether the tests were approved arises once the test is performed, not before.

[119] Finally, the Refusal form that Bryant signed included the following advisement:

You have been advised by a peace officer of the requirement to submit to all chemical tests and ... your failure to do so shall result in a suspension of your driver's license or your privilege to operate a motor vehicle.

Bryant's refusal to submit to all chemical tests necessarily included those authorized by the DOH.

[120] We hold that substantial evidence supported the hearing examiner's decision to uphold the six month implied consent suspension of Bryant's driver's license as well as its decision to uphold the one-year commercial license disqualification.

[121] Affirmed.

      . For example, the administrative record may be replete with evidence supporting the decision, and yet the agency may have willfully discounted credible evidence, refused to admit certain testimony or documentary exhibits, or failed to provide findings of fact or conclusions of law." Newman, at 1 23.


text:
    2002 WY 143
    Steven R. BARELA, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-216.
    Supreme Court of Wyoming.
    Sept. 25, 2002.
    Donald E. Miller of Graves, Miller & Kingston, P.C., Cheyenne, Wyoming, Representing Appellant.
    Hoke MacMillan, Attorney General; Paul §. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Robin Sessions Cooley, Senior Assistant Attorney General, Representing Appellee.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Chief Justice at time of oral argument.

   VOIGT, Justice.

[11] In 1995, Steven R. Barela (appellant) pled guilty to the second-degree murder of his wife. In 2000, he filed a motion to withdraw his guilty plea, primarily due to the claimed ineffectiveness of his trial counsel. The district court denied this motion. Based on our recent decision in Nixon v. State, 2002 WY 118, 51 P.3d 851 (Wyo.2002), we conclude that the district court was without jurisdiction to consider appellant's motion to withdraw his guilty plea, and, accordingly, dismiss this appeal.

ISSUES

[12] Appellant presents two issues for our review:

ISSUE I
Did the district court deny appellant due process of law by filing a decision letter in lieu of a formal order from which he could appeal?
ISSUE II
Did the district court improperly deny appellant's motion to withdraw his guilty plea in light of the allegations contained in the motion and supporting affidavit when the district court made its decision without holding a hearing?

The State of Wyoming, as appellee, essentially responds to the issues raised by appellant and additionally questions the district court's jurisdiction to consider appellant's motion to withdraw his guilty plea.

FACTS

[13] In 1994, appellant was charged with the first-degree murder of his wife. On March 29, 1995, the State filed an amended information charging appellant with second-degree murder. That same day, appellant, represented by counsel, pled guilty to see-ond-degree murder, and the district court, on April 21, 1995, imposed a sentence of twenty-eight years to life in the Wyoming State Penitentiary. Appellant did not perfect a direct appeal from the district court's judgment and sentence.

[14] On April 19, 1996, appellant, represented by counsel, petitioned the district court to modify his sentence pursuant to W.R.Cr.P. 85, primarily alleging that, at sentencing, the district court did not possess complete medical records regarding his psychological diagnosis and condition. The district court held a hearing, denied the petition, and appellant appealed that denial to this Court. We affirmed the district court's decision in Barela v. State, 986 P.2d 66 (Wyo.1997).

[15] In 1999, appellant, pro se, filed a Petition for Post-Convietion Relief in the district court pursuant to Wyo. Stat. Aun. §§ 7-14-101 through 7-14-108 (LexisNexis 2001), contending that: (1) his guilty plea was not supported by a proper factual basis; (2) his in-custody confession and consent to a search were involuntary; (8) the district court exceeded its authority in imposing restitution; and (4) his trial counsel was ineffective in several respects, The State filed a motion to dismiss appellant's petition, which motion the district court granted on February 283, 2000. Appellant filed a notice of appeal to this Court regarding the denial of his post-conviction relief petition. We dismissed the appeal because appellant was required to seek appellate review in the form of a timely petition for writ of review rather than a notice of appeal.

[T6] On October 23, 2000, appellant, pro se, filed a Motion to Withdraw Guilty Plea in the district court, arguing that he should be allowed to withdraw his guilty plea because his trial counsel was ineffective: (1) in advancing a motion to suppress appellant's confession; (2) in failing to advise appellant regarding the possibility of a conditional plea in order to preserve the suppression issue for direct appeal; (8) in failing to pursue a direct appeal on appellant's behalf; (4) in failing to advise appellant that the factual basis for his plea was insufficient; and (5) in failing to advise appellant of possible defenses to the murder charge. The district court denied appellant's motion without a hearing, and by way of a January 30, 2001, decision letter, stated that the decision letter "shall stand as the final order in this matter."

[17] -On July 11, 2001, privately-retained counsel entered an appearance in the district court on behalf of appellant and subsequently submitted a Motion Requesting Submission of Final Order, wherein appellant argued that the district court's decision letter denying his Motion to Withdraw Guilty Plea was not in the form of a final order and the time within which to file a notice of appeal from that denial had not yet commenced. After a hearing, the district court denied this motion, and appellant appealed.

DISCUSSION

[18] We agree with the State that the district court was without jurisdiction to consider appellant's Motion to Withdraw Guilty Plea. In Nixon, 2002 WY 118, TT 9, 13, 51 P.3d at 853, 854, we recently stated that generally, "a [criminal] case becomes final after judgment and sentence is entered and an appellate decision affirming the conviction has been made, or the time for taking an appeal expires without perfection of an appeal, or after the voluntary dismissal of such an appeal" and that

except where there has been a remand following an appeal in a eriminal case, or where one of the statutes or rules mentioned above [i.e., Wyo. Stat. Ann. § 1-27-101 et seq., Wyo. Stat. Ann. § 7-14-101 through 7-14-108, W.R.Cr.P. 85] otherwise expressly permits a district court to continue to assert jurisdiction over that criminal case, no authority exists for the court to act in the case-and its jurisdiction over the case should end-once the defendant's conviction has become final because of his exercise or forfeiture of his right to appeal from that conviction.

In particular, unless "a specific, express exception is created to this general rule by statute or court rule, a district court's jurisdiction to consider a motion to withdraw a plea-or any other motion not specifically provided for by statute or rule-ends when the case becomes final because of the expiration of the time for taking an appeal." Nixon, 2002 WY 118, 19, 51 P.3d at 858-54 (emphasis in original). Nixon had filed a post-sentence motion to withdraw his guilty pleas to first-degree murder and aggravated assault and battery over three years after the entry of his pleas, three years after his sentence was imposed, and nine months after this Court affirmed his direct appeal. Id. at T1 6, 18, 51 P.3d at 853, 856. 'We dismissed Nixon's appeal, finding that the district court was without jurisdiction to consider the motion to withdraw his pleas because Nixon's criminal case had become "final" for purposes of such a motion prior to the motion's filing. Id. at 130, 51 P.3d at 859.

[19] In the instant case, appellant filed his Motion to Withdraw Guilty Plea over five years after the entry of his plea and over five years after his sentence was imposed. Pursuant to Nizon, appellant's criminal case became final for purposes of the motion to withdraw his guilty plea at the expiration of the time for taking a direct appeal from the district court's judgment and sentence. Accordingly, the district court was without jurisdiction to consider the motion to withdraw appellant's guilty plea and, because this Court has no greater jurisdiction than that of the district court in these matters, we dismiss this appeal for lack of subject matter jurisdiction.