author: BILLINGS, Associate Presiding Judge: DAVIS, Judge

text:
    2003 UT App 317
    Sonia KELLEY, Petitioner and Appellee, v. Wayne KELLEY, Respondent and Appellant.
    No. 20020657-CA.
    Court of Appeals of Utah.
    Sept. 25, 2003.
    Steven Kuhnhausen and Bart J. Johnsen, Richman & Richman LLC, Salt Lake City, for Appellant.
    James C. Haskins and Thomas N. Thompson, Haskins & Associates, Salt Lake City, for Appellee.
    Before BILLINGS, Associate Presiding Judge, and DAVIS and ORME, JJ.
   OPINION

BILLINGS, Associate Presiding Judge:

¶1 Wayne Kelley appeals the trial court's judgment on remand from this court. We affirm.

BACKGROUND

12 Wayne first married Sonia Kelley in May 1980. In July 1994, Wayne and Sonia agreed for financial reasons to divorcee and transfer title of Wayne's personal assets to Sonia. Following this divorce, "Wayne and Sonia made no change in their pre-divorce relationship or living arrangements," and, in essence, continued as husband and wife. Kelley v. Kelley, 2000 UT App 236, ¶ 5, 9 P.3d 171. In response to Sonia's July 1996 action for divorcee, the trial court found that Wayne and Sonia entered a common law marriage which commenced immediately following the July 1994 divorce. This common law marriage, which we upheld in Kelley, 2000 UT App 236 at ¶ 19, 9 P.3d 171, lasted five years before Wayne and Sonia divorced a second time. See id. at 128 n. 11.

T3 The trial court considered the entire length of the marital relationship in awarding Sonia alimony for sixteen years following the second divorce. In Kelley, however, we found that "[bJecause the [trial] court made no finding of extenuating cireumstances, the time for which the [trial] court may order alimony is limited ... to the [five-year] common law marriage." Id. at ¶ 28. Thus, we remanded "for the entry of further findings addressing whether extenuating cireum-stances exist," id. (quotations and citation omitted), in accordance with Utah Code Annotated section 30-8-5(7)(h) (1998), to justify an alimony award for longer than five years.

¶ 4 On remand, the trial court ordered that Wayne pay alimony to Sonia "at the rate of $3,000 per month from December 1998 for a period of ten years, or until remarriage of [Sonia], whichever occurs first." In so doing, the court found the following:

The provisions of the 1994 [divorce] decree were clearly inadequate as evidenced by the parties' continued actions. They continued to reside together in a common law relationship just as though no decree had ever been entered. [Wayne] continued to provide support to [Sonia] and the children in the [same] amount ... as ... before. [Sonia] and the children continued in the lifestyle to which they had been aceus-tomed. It was not until after the parties began having difficulty in 1996 that things changed.

We must now determine whether this finding of an essentially unbroken marital relationship for sixteen years describes an "extenuating circumstance" justifying an award of alimony for more than the five-year common law marriage.

ISSUES AND STANDARDS OF REVIEW

¶5 Wayne claims the trial court's findings on remand are insufficient to support the court's legal conclusion that "extenuating cireumstances" justify alimony for longer than five years. We review this application of findings to statutory law for an abuse of discretion. See Clark v. Clark, 2001 UT 44, ¶ 14, 27 P.3d 538; Willey v. Willey, 951 P.2d 226, 230 (Utah 1997). Wayne also challenges the sufficiency of the trial court's findings regarding the length of the parties' marriage in relation to the alimony award. We review these findings for clear error. See Clark, 2001 UT 44 at T 14, 27 P.8d 538.

ANALYSIS

T6 Wayne argues the trial court's findings on remand do not support a conclusion of "extenuating cireumstances" justifying alimony for longer than the five-year duration of Wayne and Sonia's second marriage. Under section 30-8-5(7)(b), "[allimo-ny may not be ordered for a duration longer than the number of years that the marriage existed unless, at any time prior to termination of alimony, the court finds extenuating circumstances that justify the payment of alimony for a longer period of time." (Emphasis added.) In Kelley v. Kelley, 2000 UT App 236, 9 P.3d 171, because alimony was awarded in response to Wayne and Sonia's divorcee from their second {(common law) marriage, see id. at ¶ 28, we determined the trial court must on remand find "extenuating cireumstances" if it were to award alimony for a period longer than the second marriage.

T7 We conclude the trial court's finding supports its legal conclusion of "extenuating cireumstances." Notwithstanding their initial divorce, the court found that Wayne and Sonia had a continuous marital relationship in either a solemnized or common law form for more than sixteen years. This unique situation presents the type of "extenuating circumstance" that could justify a longer than normal alimony award, and we thus conclude the trial court did not abuse its discretion.

{8 Wayne next claims the trial court's findings regarding the duration of the relationship are insufficient because they are inconsistent with previous judicial determinations that the first and second marriages are legally distinct. We disagree. In Kelley, we upheld the trial court's determination that legally there were two separate marriages. See id. at T1 19, 34. We did not disturb the trial court's findings that the parties factually continued to behave as if no divorcee had occurred. See id. The fact of serial marriages is precisely why we remanded for an "extenuating cireumstances" determination to justify alimony beyond the length of the second marriage. On remand, the trial court reasonably found that, in spite of the two separate legal marriages, the continuing nature of Wayne and Sonia's personal and financial relationship, which in actual effect ignored the first divorce, presented extenuating circumstances. Thus, Wayne's appeal fails.

1 9 We affirm.

{10 I CONCUR: GREGORY K. ORME, Judge.

DAVIS, Judge

(dissenting):

[ 11 I dissent because today's decision has the effect of obviating our ruling in Kelley v. Kelley, 2000 UT App 236, 9 P.3d 171 (Kelley I). In Kelley I, we held that Sonia Kelley's (Wife) entitlement to alimony from her previous marriage terminated when her common law marriage began, and her entitlement to alimony from her common law marriage was limited to five years absent extenuating circumstances. Id. at 128. Since the trial court had not made an explicit finding of extenuating cireumstances, pursuant to Utah Code Ann. § 30-8-5(7)(h) (1998), we " 'remand[ed] for the entry of further findings addressing whether extenuating cireum-stances exist as to satisfy section 30-3-5(7)(Lb)'" Kelley I, 2000 UT App 236 at ¶ 28, 9 P.3d 171 (quoting Rehn v. Rehn, 1999 UT App 41,¶ 14, 974 P.2d 306). On remand, the trial court "found" the very cireamstance that created the five year limitation-the unique marital relationship of the Kelleys-to be an extenuating cireumstance. I disagree with this cireular reasoning.

112 On remand the trial court made the standard findings supporting an award of alimony, one of which is the length of the marriage. Here, the length of the marriage from which Wife claims alimony is five years, not sixteen years. -It is inappropriate for the trial judge to simply change this standard finding into an extenuating cireumstance. If, in Kelley I, we had viewed the Kelleys' relationship as a single marriage notwithstanding their shenanigans, we would have said so, and there would have been no need to remand to determine whether extenuating circumstances justified extending alimony beyond five years.

{13 We concluded in Rehkn that "a court must explicitly make a finding of 'extenuating cireumstances' in order to extend the alimony period beyond the duration of the marriage." 1999 UT App 41 at ¶ 14, 974 P.2d 306. The trial court in this case simply labeled the length of the Kelleys' relationship as an extenuating circumstance; I believe Rehn requires more. When analyzing the factors under section 80-8-5(7)(h), "the trial court must make detailed findings on all material issues, le. the Jones [v. Jones, 700 P.2d 1072, 1075 (Utah 1985),] factors, which 'should ... include enough subsidiary facts to disclose the steps by which the ultimate conclusion on each factual issue was reached"" Rehn, 1999 UT App 41 at ¶ 6, 974 P.2d 306 (second alteration in original) (citations omitted). Aside from perfunctory findings, the trial court does not articulate why the unique marital relationship of the Kelleys, against the backdrop of Kelley I, should be considered an extenuating cireumstance. The additional findings made by the court justify only a conclusion that alimony should be awarded, not that it should be extended past the five years.

T 14 I am also concerned that our approval of a prior relationship as an extenuating circumstance renders the limitation of section 30-3-5(7)(h) meaningless in such cases.

€ 15 Although Utah courts have not directly addressed the issue of what constitutes extenuating cireumstances, in my view, it must be something other than the length of the marriage which is already an alimony factor and the very focus of the limitation of section 80-8-5(7)(b). In my view, a more typical extenuating circumstance is one which implicates the physical health, mental health, or well-being of a spouse. Other jurisdictions have approached the issue in various ways. "Texas limits support to three years regardless of the duration of the marriage, except in cases of "incapacitating physical or mental disability." Indiana simply sets a three-year limit, except in cases of the physical or mental incapacity of the recipient, or of a child whose custodian must forego employment." Robert Kirkman Collins, The Theory of Marital Residuals: Applying an Income Adjustment Calculus to the Enigma of Alimony, 24 Harv. Women's L.J. 28, 62 n. 161 (2001) (citations omitted). Florida appears to follow a similar approach. See Blumberg v. Blumberg, 561 So.2d 1187, 1188 (Fla.Dist.Ct.App.1989) (per curiam) (extension of the alimony period appropriate upon wife's showing of unanticipated and substantial medical expenses); Reaves v. Reaves, 514 So.2d 1147, 1148 (Fla.Dist.Ct.App.1987) (holding that wife alleged a proper argument to extend the alimony period where serious illness prevented her rehabilitation before the end of the alimony period).

[ 16 Under the facts and cireumstances of this case, the trial court's modification of the length of the marriage was not, and did not, create an extenuating cireumstance.

      . The facts of this case are set out in further detail in Kelley v. Kelley, 2000 UT App 236, 9 P.3d 171.

      . The 2003 version of this statute renumbered this provision as Utah Code Annotated section 30-3-5(8)(h) (Supp.2003), but for the sake of clarity and consistency, we will refer to the previous version of the statute.

      . Our colleague, in his dissent, expresses concern that by approving a prior relationship as an extenuating circumstance we have rendered the limitations of Utah Code Annotated section 30-3-5(7)(h) (1998) meaningless. However, he misunderstands our logic. We are not stating that a prior relationship constitutes an extenuating circumstance; we are holding that under the unusual facts of this case the trial court did not abuse its discretion in finding extenuating circumstances where, after what was essentially a sham divorce, the parties continued to live in exactly the same factual situation as they had previously. Conversely, in the somewhat more usual, but still comparatively rare, circumstance of a couple divorcing, reconciling later, and remarrying, there would not be, without more, the requisite extraordinariness.

      . In addition, Wayne wrongly insists the trial court's findings supporting extenuating circumstances are insufficient because they are not supported by the record on remand. Wayne incorrectly assumes the trial court's findings on remand can only be supported by the record on remand. Such is clearly not the case where our remand was not for the purpose of adducing evidence, but rather for the trial court to make additional findings in reference to the evidence already of record.

      . The 2003 version of this statute has renumbered this provision as Utah Code Ann. § 30-3-5(8)(h) (Supp.2003), but for the sake of clarity and consistency, I will refer to the previous version of the statute.

      . When making a determination of alimony, Utah courts consider the following factors, first mentioned in Jones v. Jones, 700 P.2d 1072, 1075 (Utah 1985); "[1] the needs of the recipient spouse; [2] the earning capacity of the recipient spouse; [3] the ability of the obligor spouse to provide support; and, [4] the length of the marriage." Rehn v. Rehn, 1999 UT App 41, ¶ 6, 974 P.2d 306. While the fourth factor was not originally listed as a factor in Jones, it appears that this court now considers it as part of the determination whether to award alimony. See Rehn, 1999 UT App 41 at ¶ 6, 974 P.2d 306; Uiah Code Ann. § 30-3-5(7)(b) (Supp.2002).

      . For whatever reason, in Kelley I, Wife sought a common law marriage rather than seeking to set aside or modify the existing decree of divorce. See Kelley v. Kelley, 2000 UT App 236, ¶ 7, 9 P.3d 171.


source: Caselaw Access Project

author: KITE, Justice.

license: Public Domain

text:
    2003 WY 148
    Kevin Ross LACEY, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 03-7.
    Supreme Court of Wyoming.
    Nov. 18, 2003.
    Representing Appellant: Kevin Ross Lacey, pro se, Olney Springs, Colorado.
    Representing Appellee: Patrick J. Crank, Attorney General; Paul Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Dee Morgan, Assistant Attorney General.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[T1] In 2002, more than ten years after being convicted and sentenced for kidnapping and two counts of aggravated assault, Kevin Lacey filed a motion to correct an illegal sentence in district court. The district court denied his motion on the basis that no showing was made pursuant to W.R.Cr.P. 35(a). This Court must decide whether Mr. Lacey's claims are barred by the doctrine of res judicata given that he challenged his sentences previously in his direct appeal. We affirm.

ISSUES

[12] The first issue as presented by the Appellee is dispositive:

Issue I: Whether appellant's current challenge to his sentence is barred by the doctrine of res judicata?

FACTS

[13] Mr. Lacey's current appeal is his second appearance before this Court. In 1990, we affirmed Mr. Lacey's conviction on one count of kidnapping and two counts of aggravated assault and battery. The relevant facts which resulted in his conviction are set out in Lacey v. State, 803 P.2d 1364 (Wyo.1990).

At the trial, Appellant's wife, Diane, testified to the occurrence of the following events. On September 10, 1988, Appellant finished working and returned to the apartment where he and Diane lived. Diane was approximately six months pregnant. Appellant had consumed some alcohol, and he continued to drink throughout the evening. Between nine and ten o'clock, the couple prepared to go to bed, and Diane asked Appellant if she could read a book. Appellant got angry because he did not approve of the book's subject matter and tore the book into pieces. Diane became frightened and went into the bathroom to change clothes so she could leave. Appellant went into a fury, kicked the bathroom door open, and began to strike Diane. Appellant pushed Diane into the bathtub, continued to beat her, pulled her hair, and told her that she and the baby she was carrying had to die. Although Diane did not believe she would survive her husband's attack, the physical violence ceased after a period of thirty to forty-five minutes. At that point, Appellant became apologetic, and the couple cleaned up Diane's hair and blood. Despite the fact that Appellant's rage had subsided, he told Diane that she would have to die before the night was over. Diane asked if she could leave the apartment, but Appellant said, "No." After the bathroom was cleaned, Appellant retrieved several cans of beer and a knife, and the couple went to bed. Appellant lay beside Diane, holding the knife, and told her to go to sleep.
The next day, Appellant continued to exercise dominion over Diane by accompanying her everywhere she went and by carrying the knife or keeping it in close proximity. Appellant also poked at Diane with the knife, held it to her throat, and continued to verbally threaten her. The couple had several visitors during the day, but Diane was too afraid of Appellant to say or do anything which would alert anyone of her peril. Diane and Appellant left the apartment so Appellant could speak with a co-worker, but, once again, Diane was too seared to seek help. Finally, Diane's sister stopped by the apartment, and Diane told her that she wanted to get out. Diane's sister notified her father of Diane's plight, and he went to the apartment and liberated Diane without incident.

Lacey, 803 P.2d at 1366.

[14] On the basis of these facts, Mr. Lacey was charged with and convicted of the kidnapping and aggravated assault charges. Id. The district court sentenced him to not less than twenty nor more than twenty-five years on the kidnapping conviction, not less than ten nor more than fifteen years on the first aggravated assault and battery conviction, and not less than ten nor more than twelve years on the second aggravated assault and battery conviction. The kidnapping sentence and the first aggravated assault and battery sentence were to be served concurrently, with the final aggravated assault and battery sentence to be served consecutive to the first two sentences. The jury found him to be a habitual criminal and the aggravated assault and battery sentences were enhanced under Wyo. Stat. Ann. § 6-10-201 (Lexis-Nexis 2008).

[15] On direct appeal to this Court, Mr. Lacey questioned the propriety of his sentence enhancement. He contended his status as a habitual criminal should be used to enhance only one of his sentences. This Court held that the district court did not abuse its discretion when it enhanced two sentences for two convictions arising out of a single occurrence. Lacey, 803 P.2d at 1371.

[16] In 2002, in his motion to correct an illegal sentence, Mr. Lacey argued the imposed penalties for the aggravated assault and battery convictions exceeded the maximum sentences prescribed by statute. He also argued all three sentences should run concurrently with each other because of lack of evidence, prosecutorial misconduct, and other irregularities at trial The district court denied Mr. Lacey's motion, holding that "no showing has been made pursuant to Rule 35(a) of the Wyoming Rules of Criminal Procedure to justify or require a modification of the Defendant's sentences." This appeal followed.

STANDARD OF REVIEW

[¶7] Mr. Lacey's current appeal is governed by W.R.Cr.P 85(a). We recently stated:

W.R.Cr.P. 85(a) governs motions to correct illegal sentences. "A motion to correct an illegal sentence under W.R.Cr.P. 85(a) is addressed to the sound discretion of the sentencing court." Mead v. State, 2 P.3d 564, 566 (Wyo.2000). We, therefore, apply our abuse-of-discretion standard in reviewing a denial of a motion to correct an illegal sentence. Cardenas v. State, 925 P.2d 239, 240 (Wyo.1996). The abuse-of-discretion standard of review reaches the question of the reasonableness of the trial court's choice. Griswold v. State, 2001 WY ¶ 14, ¶ 7, 17 P.3d 728, 731 (Wyo.2001). Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means exercising sound judgment with regard to what is right under the ctreamstances and without doing so arbitrarily and capriciously. Id.

Martinez v. State, 2002 WY 10, ¶ 7, 39 P.3d 394, ¶ 7 (Wyo.2002). W.R.Cr.P. 85(a) gives district courts the authority to correct illegal sentences at any time. Id. at 19. An illegal sentence is one that exceeds statutory limits, imposes multiple terms of imprisonment for the same offense, or otherwise violates the constitution or other law. Id.

DISCUSSION

[T8] In contending the district court erred in denying his motion to correct an illegal sentence under W.R.Cr.P. 35(a), Mr. Lacey argues the oral pronouncement of his sentences did not include a finding that he was a habitual criminal, and thus his aggravated assault sentences exceeded the maximum penalty allowed by law. Further, Mr. Lacey contends the district court should have ordered his aggravated assault sentences to run concurrently because those charges were based on the same acts. And finally, Mr. Lacey contends the district court should have imposed an enhanced sentence on only one of the aggravated assault charges, because it was the only "principal charge" capable of enhancement pursuant to the habitual criminal statute.

[19] The State, on the other hand, contends Mr. Lacey's claims should be denied altogether because they are barred by res judicata. Because Mr. Lacey challenged the legality of his sentence when he appealed from the district court's initial judgment and sentence, the State argues Mr. Lacey did raise or could have raised all of his current arguments in his direct appeal.

[110] The district court denied Mr. Lacey's motion on the basis that no showing was made pursuant to W.R.Cr.P. 85(a) to justify or require a modification of the sentences. However, we need not reach that threshold because the doctrine of res judicata completely bars Mr. Lacey's motion. It is well settled we may affirm the district court's decision on any legal ground appearing in the record. Daniels v. Carpenter, 2003 WY 11, ¶ 30, 62 P.3d 555, ¶ 30 (Wyo.2008).

[111] In determining whether the doctrine of res judicata applies, we examine four factors: (1) identity in parties; (2) identity in subject matter; (8) the issues are the same and relate to the subject matter; and (4) the capacities of the persons are identical in reference to both the subject matter and the issues between them. Markstein v. Countryside I, LLC, 2008 WY 122, ¶ 15, 77 P.3d 389. This court has repeatedly held that issues raised and considered in a prior criminal appeal are res judicata, and cannot be relitigated by a defendant in a subsequent collateral attack. McCarty v. State, 929 P.2d 524, 525 (Wyo.1996). We have said:

It is a longstanding rule that issues which could have been raised in an earlier proceeding are foreclosed from subsequent consideration. Kallas v. State, 776 P.2d 198, 199 (Wyo.1989); Cutbirth v. State, 751 P.2d 1257, 1261 (Wyo.1988). Unless [the appellant] can show good cause why the issue was not raised at an earlier opportunity, the court may decline to consider the issue. Kallas, 776 P.2d at 199; Cutbirth, 751 P.2d at 1261.

Hamill v. State, 948 P.2d 1856, 1358 (Wyo.1997).

[112] In Hamill, the defendant did not raise the issue of his consolidated sentence when he appealed his 1979 conviction. Eleven years later, Mr. Hamill filed his first motion to correct an illegal sentence. Again, the motion contained no mention of his consolidated sentence. That motion was denied. Sixteen years after his conviction, he filed yet another motion to correct an illegal sentence, this time contending his sentence was ilegally consolidated. Finding res judicata applied, we said:

Hamill fails to articulate any reason why this issue was not raised in his earlier petitions regarding his sentencing.... Hamill makes no attempt to explain why he did not challenge his consolidated sentence in his petition filed in 1990. ...
Neither do the interests of justice require consideration of Hamill's claim.

Hamill, 948 P.2d at 1359.

[113] Similarly, in Mead v. State, 2 P.3d 564, 566 (Wyo.2000), we held Mr. Mead's appeal of his motion to correct an illegal sentence was barred by res judicata. "The issue ... could have been raised in that appeal, but it was not.... [Wie ground our decision in this case on the doctrine of res judicata, and we hold that this Court is foreclosed from considering Mead's appeal on its merits." Id.

[114] Unlike the defendants in Homill and Mead, Mr. Lacey did challenge his sentences in his direct appeal:

Appellant's final argument challenges the propriety of the district court's decision to increase both aggravated assault and battery sentences to greater amounts of time than provided for by statute as a result of the jury finding him to be a habitual criminal. Appellant does not contest the jury's finding that he is a habitual criminal. Instead, he contends his status as a habitual criminal should be used to enhance only one of his sentences.

Lacey, 803 P.2d at 1371. Mr. Lacey's complaints in this appeal, likewise, focus on his sentences. Here, he argues the district court erred "by not imposing one (1) sentence for the principal charge to be enhanced pursuant to the Wyoming Statute § 6-10-201, habitual criminal." As in the prior appeal, Mr. Lacey's argument centered around his status as a habitual criminal and its effect on his sentences. Although his argument differs slightly from that presented on direct appeal, the distinction is insufficient to avoid the application of res judicata. Mr. Lacey offers no showing of why the issues raised in the current appeal could not have been raised in his direct appeal and absent such a showing his claims in the present appeal are barred by the doctrine of res judicata.

[115] Affirmed.


text:
    2003 WY 147
    Larry KEEVER, Appellant (Defendant), v. PAYLESS AUTO SALES, INC., Appellee (Plaintiff).
    No. 03-28.
    Supreme Court of Wyoming.
    Nov. 18, 2003.

      Representing Appellant: Guy Cleveland, Attorney at Law, Cheyenne, Wyoming.
    Representing Appellee: No appearance.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[¶1] Larry Keever purchased a car from Payless Auto Sales, Inc. (Payless) and agreed to make three monthly payments and a balloon payment to pay off the purchase price. He failed to make the scheduled balloon payment and instead continued to make monthly payments, which Payless accepted. However, he stopped making payments before paying the full amount required by the agreement. Payless sued Mr. Keever for damages pursuant to the agreement. Mr. Keever argued the contract had been modified by the conduct of the parties, but the district court disagreed and awarded damages to Payless. We affirm the district court's judgment.

ISSUES

[12] Mr. Keever presents the following issues:

I. Whether the trial court's factual determination was clearly erroneous and/or contrary to the great weight of the evidence in that the contract between Defendant and Plaintiff was not modified by the payment and acceptance of monthly sums versus previously agreed lump-sum payment{[?]
II. If the contract between the Plaintiff and Defendant is found modified, whether such modified contract needs to be reduced to writing with such writing or "modified contract" having to include required consumer credit disclosures{?]
III. If the "modified contract" between the parties needs to be in writing and contain the appropriate disclosures, whether the failure to do so renders the contract void as against public policy and/or void for illegality[?]

FACTS

[13] In 1996, Mr. Keever purchased a 1991 Chevrolet Lumina van from Payless. He signed a Credit Sale Note/Disclosure/Security Agreement for the purchase price of $13,615.92, which incorporated a Chevrolet Geo as collateral. Pursuant to the contract, Mr. Keever was to make three monthly payments of $250.00 beginning November 1, 1996, and a balloon payment of $13,478.62 on or before February 11, 1997. The annual percentage rate on the contract was eighteen percent (18%). Mr. Keever never made the balloon payment, but continued to make monthly payments, which Payless accepted for over three years until early 2000. James Ditzel, owner of Payless, testified at trial he continued to "urge" Mr. Keever to make the balloon payment. After February 3, 2001, Mr. Keever stopped making payments to Payless despite the fact he still owed money on the contract.

[T4] On October 831, 2001, Payless filed suit against Mr. Keever. In response, Mr. Keever claimed Payless' acceptance of his monthly payments constituted a modification to the contract. Following a bench trial, the district court found the terms of the contract had not been modified, and "defendant simply chose not to make the payments as scheduled." The court also found the terms of the contract were properly disclosed, including the provision that late payments would increase the finance charge.

[T5] This appeal followed.

STANDARD OF REVIEW

[16] Our review of the trial court's factual determination that the terms of the Credit Sale Note/Disclosure/Security Agreement had not been modified is limited. Findings of fact will not be set aside unless the findings are clearly erroneous.

"When a trial court in a bench trial makes express findings of fact ..., we review the factual determinations under a clearly erroneous standard[.]" Rennard v. Vollmar, 977 P.2d 1277, 1279 (Wyo.1999). This court does not weigh the evidence de novol.]

Ruby Drilling Co. v. Duncan Oil Co., 2002 WY 85, ¶ 9, 47 P.3d 964, ¶ 9 (Wyo.2002).

[T7] We do not substitute ourselves for the trial court as a finder of facts; instead, we defer to those findings unless they are unsupported by the record or erroneous as a matter of law. Life Care Centers of America, Inc. v. Dexter, 2003 WY 38, ¶ 7, 65 P.3d 385, ¶ 7 (Wyo.2003). We affirm the trial court's findings if there is any evidence to support them. Id. We accept the evidence of the prevailing party as true and give that party the benefit of all favorable inferences that can fairly be drawn from the evidence, while disregarding conflicting evidence. Narans v. Paulsen, 803 P.2d 358, 360 (Wyo.1990). A reviewing court will not set aside the court's findings merely because it might have reached a different result. Conner v. Board of County Commissioners, Natrona County, 2002 WY 148, ¶ 23, 54 P.3d 1274, ¶ 23 (Wyo.2002). A finding can be "clearly erroneous" even though there is evidence to support it, if after a review of the entire record, the court "is left with the definite and firm conviction that a mistake has been committed." Hammons v. Table Mountain Ranches Owners Association, Inc., 2003 WY 85, ¶ 12, 72 P.3d 1153, ¶ 12 (Wyo.2003).

DISCUSSION

[18] Mr. Keever asserts the Credit Sale Note/Disclogsure/Security Agreement he signed was modified by the subsequent conduct of the parties. The conduct he relies upon is Payless' acceptance of his monthly payments after he failed to make the scheduled balloon payment. However, Mr. Keever chooses to ignore the evidence at trial that demonstrated Payless had no intention of modifying the contract, but instead, was simply accepting the late payments upon Mr. Keever's continued promises to make the balloon payment. On direct examination, Mr. Ditzel testified:

Q. Looking at this, in February, Mr. Keever was supposed to make that large balloon payment.... [Dlid he actually make that payment in February?
A. No, he didn't.
Q. What did he do?
A. Just continued] to make payments looks like 250, 250, 250, then went to 300.
Q. So instead of making the balloon payment, he continued to make payments in the amount of $300 a month?
A. Yes.
Q. And those payments continued to accrue interest at the note rate?
A. Correct.
Q. And you accepted those payments?
A. I did.
Q. Why did you do that?
A. That's all I could get. In fact, we urged him to make that balloon payment but we were always given several exeuses: the bonus check never came in; the refund check never came in, etcetera, etcetera. So over time, we just accepted what we could get.
Q. So that was a business decision you had to make?
A. Yes.

[19] Following his direct examination, Mr. Ditzel testified to the following on cross-examination:

A. _... I know that in my notes I continued to try to get the balloon payment and that he had made several promises on his-that when he got his bonus check, that he would pay the account off.
Q. And when it became, as you basically stated earlier, that it was apparent that that wasn't going to happen, did you feel compelled at that time to maybe have Larry come in and enter into a new contract?
A. No.
Q. Was there a reason why you did not? When it became apparent that Mr. Keever was not making that balloon payment, why did you not have him come in and execute a new contract?
A. We had a contract.

[110] Mr. Keever did not rebut Mr. Dit-zel's testimony and provided no explanation for his failure to comply with the contract. He testified:

Q. Isn't it true you didn't comply with the terms of this note?
A. He wrote-yes.
Q. You didn't make the required payment of $13,000 and change in February, did you?
A. That's correct.

[111] Following the trial, the district court took the matter under advisement, and on November 19, 2002, issued a Decision Letter making the following findings:

Defendant argues that the contract ... was modified to include the $300 monthly payment term. Defendant asserts that the new terms should have been in writing and that he should have been given the finance disclosures required by law concerning the total amount he would have to pay.
The Court finds that the terms of the contract were not modified. Defendant simply chose not to make the payments as scheduled. The Court also finds that the required finance terms were disclosed, and the contract states that late payments will increase the finance charge that is paid.
Accordingly, the Court finds that Plaintiff should prevail ... and will be awarded the stipulated amount of $12,089.89.

[112] This Court has previously acknowledged that the parties to a written agreement may orally waive or modify their rights under the agreement. Shawers v. Board of County Commissioners of County of Sweetwater, 746 P.2d 444, 448 (Wyo.1987). They may do so even when the agreement contains a clause prohibiting non-written modifications. Id. at 448 n. 8. However, Mr. Keever does not contend the parties orally modified the contract. Rather, he argues the parties modified the contract through their course of conduct.

[113] Wyoming law is clear that the party asserting a written agreement was

modified by the subsequent expressions or conduct of the parties must prove so by clear and convincing evidence. Ruby Drilling Co., ¶ 11. The question of whether the alleged modification of the written agreement has been proved by the required quantum of evidence is one to be decided by the trier of fact. Id.

[T14] In order to prevail on appeal, Mr. Keever must overcome the onerous burden of persuading this Court that the district court's findings are clearly erroneous. May-cock v. Maycock, 2001 WY 103, T 11, 38 P.3d 1114, T11 (Wyo.2001). Mr. Keever's only support for his argument that the trial court's findings were clearly erroneous is his version of the facts, which was soundly rejected by the district court. Simply reiterating those facts on appeal does not meet the clearly erroneous standard of review mandated by our jurisprudence. We understand that standard of review is a difficult one to meet; however, that is not without reason. The trial court had the opportunity to assess the witnesses' credibility. Rossel v. Miller, 2001 WY 60, 116, 26 P.3d 1025, 116 (Wyo. 2001). While the record indicates some evidence did exist regarding the parties' course of conduct which was inconsistent with the terms of the contract, other evidence clearly indicated Payless had no intention of modifying the contract. We must defer to the trial court's conclusion regarding the credibility of the witnesses and the persuasiveness of the evidence. Id at 118. The trial court heard testimony from three witnesses, admitted ten exhibits into evidence, and took the case under advisement for careful consideration. Mr. Keever presented no evidence to rebut Mr. Ditzel's affirmative testimony that Pay-less continued to urge Mr. Keever to make the balloon payment. Further, nothing else about the conduct of the parties indicates mutual assent to a new agreement, as Mr. Keever asserts.

[T15] A contract modification requires the same mutual assent necessary for the formation of the initial contract. As stated by the Kansas Supreme Court:

It is well settled that the terms of a written contract may be varied, modified, waived, annulled or wholly set aside by any subsequently executed contract, whether such subsequently executed contract be in parol or in writing. (Gibbs v. Erbert, 198 Kan. 403, 424 P.2d 276; Bailey v. Norton, 178 Kan. 104, 283 P.2d 400. One party to a contract cannot unilaterally change the terms thereof. Modification requires the assent of all the parties to the contract. Their mutual assent is as much a requisite in effecting a modification as it is in the imitial creation of a contract.

Fast v. Kahan, 206 Kan. 682, 481 P.2d 958 (1971) (emphasis added). In this case, the trial court's finding that no such mutual assent existed is not clearly erroneous. Accepting as true the evidence of Payless, giving to Payless all favorable inferences and disregarding Mr. Keever's evidence as we are required to do, we find no error. Having failed to meet his burden, Mr. Keever must live with the bargain he struck. Because we find the contract was not modified, we do not consider the remaining two issues presented by Mr. Keever.

[116] Affirmed.

      . The appellee did not file a brief in this matter.

      . The original complaint asked for judgment in the amount of $6,615.67; however, the complaint was later amended and requested judgment in the amount of $12,300.51. During the bench trial, the parties agreed on a stipulated amount of $12,039.89.


author: LEHMAN, Justice.

text:
    2003 WY 146
    Elizabeth J. COX; Ann F. King; Douglas A. and Sheryl K. Vanpelt; Thomas W. Cox; William S. Cox; Robert and Geneva "Pat" Weaver; Ronald L. and Barbara M. Browser; Carrie E. Smith; Gilbert D. and Cheryl G. Cordier; and Mark And Rhonda Sutherland, Appellants (Plaintiffs), v. CITY OF CHEYENNE, a Wyoming Municipal Corporation; Heartland Development Company; Heartland Home Builders, Inc.; and James O. Woods, individually and as President of Heartland Home Builders, Inc., Appellees (Defendants).
    No. 03-33.
    Supreme Court of Wyoming.
    Nov. 18, 2003.

      Representing Appellant: Gay Woodhouse of Gay Woodhouse Law Office; and Andrea L. Richard and Lori L. Brand of Rothgerber, Johnson & Lyons LLP, Cheyenne, WY. Argument by Ms. Woodhouse and Ms. Richard.
    Representing Appellee: W. Perry Dray and Nicholas G.J. Healey of Dray, Thomson & Dyekman, P.C., for City of Cheyenne; and Don W. Riske and James R. Salisbury of Riske & Arnold, P.C., Cheyenne, WY for Heartland Development Company, Heartland Homebuilders, Inc., and James O. Woods. Argument by Mr. Dray.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[11] Elizabeth J. Cox, Ann F. King, Douglas A. and Sheryl K. Vanpelt, Thomas W. Cox, William S. Cox, Robert and Geneva "Pat" Weaver, Ronald L. and Barbara M. Bowser, Carrie E. Smith, Gilbert D. and Cheryl G. Cordier, and Mark and Rhonda Sutherland (appellants) appeal the district court's order granting dismissal of their declaratory judgment action. The district court determined that appellants lacked the standing to bring a declaratory judgment action challenging the annexation of property west of the existing Cheyenne city limits. In making this determination, the district court concluded that Wyo. Stat. Ann. § 15-1-409(a) (LexisNexis 2008) granted standing to challenge annexation to only two classes of individuals, city residents and the owners of the property being annexed, thereby impliedly precluding appellants, as adjoining landowners, from challenging the annexation. The district court additionally found that even if appellants had standing, they failed to file their complaint within the ten-day limit provided by § 15-1-40%(c), and the action was therefore time barred. We reverse.

ISSUES

[12] Appellants present the following issues on appeal:

I. Whether the district court erred by irrebuttably presuming that the city's annexation ordinance was valid and by disregarding the jurisdictional nature of [appellants'] challenge.
II. Whether 1.5 miles from the city limits is "contiguous with or adjacent to" the city for purposes of Wyo. Stat. § 15-1-402(a)(iv).
III. Whether the city's ordinance No. 3447, purportedly annexing land to the city, is void ab initio as a violation of Wyoming statute.
IV. Whether [appellants], as adjoining landowners, have standing to challenge or-dinancee No. $447.
V. Whether the court erroneously stripped aggrieved parties' standing to pursue any claims by incorrectly applying Wyo. Stat. § 15-1-409.
VI. Whether the court abused its discretion when it refused to allow [appellants] to amend their complaint to add allegations that the city deprived [appellants] of due process by failing to provide them the notice expressly required by statute.

Appellee, City of Cheyenne (City) phrases the issues as follows:

I. The lower court correctly dismissed Appellants' Complaint pursuant to Wyo. R. Civ. P. 12(b)(6) because Appellants did not have standing to challenge the annexation of the territory popularly known as the Village West subdivision to the city of Cheyenne as a matter of law.
II. The lower court correctly dismissed Appellants' Complaint pursuant to Wyo. R. Civ. P. 12(b)(6) because Appellants did not file their challenge to the annexation of Village West within the ten (10) day time limit set out by Wyo. Stat. § 15-1-409(c) but instead sued to invalidate the annexation almost ten (10) months after the annexation.
III,. The lower court acted within its discretion in denying Appellants' Motion to Amend Complaint.

Appellees Heartland Development Company, Heartland Home Builders, Inc., and James O. Woods, individually and as president of Heartland Home Builders, Inc. (collectively Heartland), state the issues as:

I. Whether the district court correctly determined that [appellants] were not conferred standing to challenge the annexation of Village West to the City of Cheyenne by the applicable statute.
II. Whether the trial court correctly determined that the challenge to the annexation of Village West by [appellants] was untimely and time barred.
III. Whether the remaining issues raised by [appellants] are properly before this court.

FACTS

[13] On August 13, 2001, the City enacted annexation ordinance No. 8447. The ordinance became effective on August 22, 2001, and annexed real property known as the Village West Subdivision (Village West) located west of Cheyenne on a portion of Seetion 4, T.13N, R.67TW of the 6rth P.M. The annexed property is owned by the Heartland Development Company. This property is 1.5 miles from the nearest city limit. Village West has subsequently been rezoned to medium density residential and is slated for a sizeable housing development.

[14] The appellants own land adjoining, across the road from, or within 4 mile of the Village West subdivision. None of the appellants own land within the annexed area, and none of the appellants are residents of the city of Cheyenne. On June 11, 2002, appellants brought a declaratory judgment action against the City and Heartland. Appellants sought a declaration that Ordinance No. 3447 is void because it purports to annex land that is not contiguous with or adjacent to the city limits and therefore violates Wyo. Stat. Ann. § 15-1-402(a)(iv) (LexisNexis 2001). Appellants additionally sought a declaration that the annexation statutes are unconstitutional because the statutes deprive individuals of their right to property without due process of law.

[15] The City and Heartland filed motions to dismiss appellants' complaint pursuant to W.R.C.P. 12(b)(1) and 12(b)(6) for lack of subject matter jurisdiction and for failure to state a claim on which relief could be granted. The City and Heartland claimed that appellants lacked standing to sue because they do not meet the standing requirement of Wyo. Stat. Ann. § 15-1-409(a). The City and Heartland further argued that the plain language of § 15-1-409(c) requires that all proceedings to review the City's findings or conclusions must be brought within ten days of the effective date of the annexation ordinance.

[16] The district court granted the motions to dismiss finding that appellants lacked statutory standing to sue. Additionally, the district court decided that, even if appellants had standing to sue, they had not brought their challenge within ten days as required by § 15-1-409%(c) and were thus time barred. After dismissal, on September 6, 2002, appellants moved to amend their complaint to also claim that the City had failed to give proper notice. Appellants appealed on September 18, 2002. On February 10, 2008, the district court entered an order denying appellants' motion to amend their complaint.

STANDARD OF REVIEW

[17] When reviewing a W.R.C.P. 12(b)(6) motion to dismiss, we focus on the allegations contained in the complaint and liberally construe them in the light most favorable to the plaintiff. Duncan v. Afton, Inc., 991 P.2d 739, 742 (Wyo.1999). We will affirm an order of dismissal only when it is certain from the face of the complaint that the plaintiff cannot assert any facts which would entitle him to relief. Id. Additionally, "in a de novo review of the threshold question of jurisdiction, 'we examine the policies underlying both the Uniform Declaratory Judgments Act and the doctrine of justicia-bility to determine if this is a proper case for judicial action.' " Southwestern Pub. Serv. Co. v. Thunder Basin Coal Co., 978 P.2d 1138, 1141 (Wyo.1999) (quoting Reiman Corp. v. City of Cheyenne, 838 P.2d 1182, 1185 (Wyo.1992)).

DISCUSSION

[18] The district court determined that appellants did not have standing to challenge the annexation. Appellants' challenge to the annexation ordinance came by way of a declaratory judgment action, thus we will begin our analysis with a discussion of declaratory judgments. Wyo. Stat. Ann. § 1-37-108 (LexisNexis 2008) states,

Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by the Wyoming constitution or by a statute, municipal ordinance, contract or franchise, may have any question of construction or validity arising under the instrument determined and obtain a declaration of rights, status or other legal relations.

Appellants seek a determination of the validity of a municipal ordinance and thus fall within the general scope of the declaratory judgments act. However, in order to bring a declaratory judgment action regarding a municipal ordinance, the challenger must also be an "interested" person.

[19] The "requirement of an "interest' captures the basic doctrine that there must be a justiciable controversy before relief will be granted." Barber v. City of Douglas, 931 P.2d 948, 951 (Wyo.1997). Generically, a justiciable controversy is defined as a controversy fit for judicial resolution. Reiman Corp. v. City or Cheyenne, 838 P.2d 1182, 1186 (Wyo.1992). Many doctrines are encompassed within the concept of justicia-bility including standing, ripeness, and mootness. Id. Of significance in this instance is standing. The doctrine of standing focuses on whether a litigant is properly situated to assert an issue for judicial determination. State ex rel. Bayou Liquors, Inc. v. City of Casper, 906 P.2d 1046, 1048 (Wyo.1995). A litigant has standing when he has a personal stake in the outcome of the controversy. Id.

[110] The principles of standing, as well as ripeness, mootness, and the other justiciability doctrines are captured in the elements necessary to establish a justiciable controversy under the Uniform Declaratory Judgments Act. These elements are:

1. The parties have existing and genuine, as distinguished from theoretical, rights or interests.
2. The controversy must be one upon which the judgment of the court may effectively operate, as distinguished from a debate or argument evoking a purely political, administrative, philosophical or academic conclusion.
3. It must be a controversy the judicial determination of which will have the force and effect of a final judgment in law or decree in equity upon the rights, status or other legal relationships of one or more of the real parties in interest, or, wanting these qualities to be of such great and overriding public moment as to constitute the legal equivalent of all of them.
4. The proceedings must be genuinely adversary in character and not a mere disputation, but advanced with sufficient militancy to engender a thorough research and analysis of the major issues.

Reiman Corp., 838 P.2d at 1186 (quoting Brimmer v. Thomson, 521 P.2d 574, 578 (Wyo.1974)). Applying these criteria, we conclude that a justiciable controversy does exist in this case.

Initially, we note that the declaratory judgments act "is founded upon the premise that society is disturbed not only when legal rights are violated, but also when they are placed in serious doubt or uncertainty." Reiman Corp., 838 P.2d at 1185 (citing Edwin M. Borchard, The Declaratory Judgment-A Needed Procedural Reform (Part I), 28 Yale L.J. 1, 2 (1918)). Therefore, in order to accomplish its purpose, the declaratory judgments act is to be liberally construed and administered. Barber, 931 P.2d at 951. In fact, the act itself states, "The Uniform Declaratory Judgments Act is remedial. Its purpose is to settle and to afford relief from uncertainty and insecurity with respect to legal relations, and is to be liberally construed and administered." Wyo. Stat. Ann. § 1-87-114 (LexisNexis 2008).

[T12] In effecting the broad purpose of the declaratory judgment action, we have recognized "an interest" in many contexts. See, e.g., Sinclair Oil Corp. v. Pub. Serv. Comm'n, 2003 WY 22, 63 P.3d 887 (Wyo.2003) (potential injury); Jolley v. State Loan & Inv. Bd., 2002 WY 7, 38 P.3d 1073 (Wyo.2002) (relaxed standing requirements for matters of public importance). For example, we have found that residents of the city had standing to bring a declaratory judgment action challenging the issuance of a liquor license. State ex rel. Bayou Liquors v. City of Casper, 906 P.2d at 1050. We noted that residents have a strong interest in seeing compliance with the law. Id. The residents in Bayou Liquors were "interested" because they sought to ensure that licenses were issued, renewed, or transferred in compliance with the law. Id. Such cases indicate our broad interpretation of the purpose of the declaratory judgments act and our recognition of existing and genuine interests in a variety of contexts.

[T18] In the instant case, appellants have an existing and genuine interest. Appellants allege that they are the owners of land joining, across the road from, or within 4 mile of Village West. The annexation of Village West thus brings appellants' land within one mile of the city limits and under the City's control for purposes of Wyo. Stat. Ann. § 15-1-411 (LexisNexis 2003) Additionally, the City of Cheyenne is a city of the first class under § 15-3-101 (LexisNexis 2003. See Cheyenne, Wy., City Code, Historical Summary (2002). Thus under § 15-3-202(b)(ii) (LexisNexis 2003) the City may exercise jurisdiction over matters within % mile of the corporate city limits should it choose to do so.

[T14] Likewise, although it was in the zoning context, we have found that adjoining landowners have standing to challenge a municipality's actions when those actions will double the density previously permitted on the adjoining land. Hirschfield v. Board of County Comm'rs, 944 P.2d 1139, 1143 (Wyo.1997) Hoke v. Moyer, 865 P.2d 624, 628 (Wyo.1993). Village West is slated for the development of as many as 1,500 homes, which will significantly increase the density of the population on the land adjoining appellants' land. We have said that such increases in the density of adjacent property raise a number of perceptible harms for a property owner, such as increased traffic and congestion. Hirschfield, at 1143. Additionally, accompanying the increase in density are health and safety concerns. Appellants, in the instant case, allege the same type of harm. If these potential harms present standing to the challenger of a zoning decision, they present no less of an "interest" to the challenger of an annexation ordinance.

[115] Appellants are "interested" in another manner. That is, the annexation of Village West facilitates the annexation of appellants' land. Prior to the annexation ordinance, appellants were a distance from the city limits and were not adjoining the boundary of the City. Whether appellants were "contiguous with or adjacent to" the annexing city prior to this annexation is a matter of some dispute. The meaning of these terms as used within the annexation statutes is at the heart of this suit and is also currently before this court in other litigation involving some of the same parties. However, the resolution of this dispute is not essential to our present discussion, and we do not intend this discussion to indicate a determination either way. We do determine, however, that following this annexation, appellants' land is undeniably "contiguous with or adjacent to" the City because appellants now have an adjoining boundary with the City. Hence, the instant annexation indisputably makes the future annexation of appellants' property possible. See Adam v. City of Hastings, 12 Neb.App. 98, 668 N.W.2d 272 (2003).

[T16] The unquestionable possibility of future annexation due to a now adjoining boundary with the City presents appellants with an interest in challenging this annexation. Some of appellants engage in rural activities including farming, ranching, and raising livestock which are not permitted by city zoning. Although these uses would be "grandfathered in" should annexation take place, additional restrictions such as continual use to maintain the "grandfather" status create an interest in this annexation. See Wyo. Stat. Ann. § 15-1-410 (LexisNexis 2008). We, therefore, hold that the above-mentioned harms qualify under the broad purpose of the declaratory judgments act as an existing and genuine interest.

[¥17] The other elements necessary to establish a justiciable controversy are present as well. A judgment of the court will effectively resolve the controversy, as the annexation will be declared either valid or void. Such a declaration will be a final judgment on the matter and not merely an academic discussion. Furthermore, the parties are clearly adversaries each of whom has already vigorously advocated his position and will undoubtedly continue to do so. Based on the briefs and oral argument to this court, we are quite comfortable stating that each party has advanced his position with "sufficient militancy to engender a thorough research and analysis of the major issues." Therefore, we find that appellants meet the justiciable controversy requirements of the declaratory judgments act.

[118] The City and Heartland have essentially argued that, even if appellants are "interested" for declaratory judgment purposes, our decision in Town of Marbleton v. Town of Big Piney, 719 P.2d 1389 (Wyo.1986) precludes standing for challenging this annexation. The City and Heartland argue that in Town of Marbleton we held that the only parties that have standing to challenge an annexation are those that meet the requirements of Wyo. Stat. Ann. § 15-1-409(a). We disagree with this broad interpretation of our holding in Town of Marbleton.

[119] In Town of Marbleton we began our discussion by noting that, in reaching its decision that Marbleton lacked the standing to challenge Big Piney's annexation, the district court explained: "The matter is controlled by statute. The statute sets out who may bring an action and impliedly says who cannot." Id. at 1890. We then declared that we agreed with the district court. However, in immediately explaining our agreement with the district court we stated: "Generally, 'municipalities can exercise only those powers which are expressly or impliedly conferred." " Id. (quoting Coulter v. City of Rawlins, 662 P.2d 888, 895 (Wyo.1983)). We then briefly discussed the powers of a municipality, noting that a municipality is not granted the right to challenge another municipality's annexation. Later in our discussion, we cited to authority from other jurisdictions regarding a fown's standing to contest an annexation. Id. at 1891. Our conclusion stated that we do not necessarily agree that municipal standing to contest annexations can only be express but that in that case Marbleton showed neither express nor implied standing. Id. at 1891. Additionally, we held that Marbleton did not show that its own municipal powers were sufficiently affected by Big Piney's annexation.

[120] A significant difference between Town of Marbleton and the instant case is the characteristics of the party bringing the declaratory judgment action. A municipality has only the rights and powers granted by statute. Individuals are not similarly limited. Individuals have rights and powers independent of those created by statute. Our discussion in Town of Marbleton focused on, and was limited to, a municipality's standing to challenge annexation. Beyond the limited nature of our discussion, our statement that "Iwle do not necessarily agree with these courts that municipal standing to contest annexations can only be express" discloses our willingness to consider other sources of standing to challenge an annexation. We, therefore, conclude that Town of Marbleton did not decide the issue of whether individuals other than those listed in § 15-1-409(a) have standing to challenge annexation.

[121] We now address this statutory issue. We do so by interpreting Wyo. Stat. Ann. § 15-1-409 (LexisNexis 2008), which states:

(a) If any landowner in the territory proposed to be annexed or any owner of real property in the annexing city or town, or utility is aggrieved by the acts of the governing body, he may appeal to the district court for a review of the acts or findings thereof.
(b) If the court determines that the action taken was capricious or arbitrary, or if it appears from the evidence that the landowner's right in his property is being un-warrantedly invaded or that the governing body abused its discretion, the court shall declare the annexing ordinance void. If the court determines the action of the governing body was proper and valid, it shall sustain the ordinance.
(c) All proceedings to review the findings and the decisions of the governing body shall be brought within ten (10) days of the effective date of the annexation ordinance, and if not brought within that time are forever barred.

When interpreting statutes, our primary purpose is to determine the legislature's intent. Parker Land & Cattle Co. v. Wyo. Game & Fish Comm'n, 845 P.2d 1040, 1044 (Wyo.1993).

If the language is sufficiently clear, we do not resort to the rules of construction. We apply our general rule that we look to the ordinary and obvious meaning of a statute when the language is unambiguous. If the statute's language is clear and unambiguous, we apply its plain meaning and need not consult the numerous rules of statutory construction.

Ahlenius v. Board of Prof'l Geologists, 2 P.3d 1058, 1061 (Wyo.2000).

[122] We begin our interpretation by noting that the definition of landowner provided in Wyo. Stat. Ann. § 15-1-401(a)@) (LexisNexis 2008) includes in some instances those whose land after the annexation would be within % mile of the city limits. Section 15-1-401(a)(if) expressly states that the expanded definition of landowner applies for the purposes of §§ 15-1-402, -404, and -405. Therefore, the expanded definition including those within % mile of the city limits after annexation does not apply to § 15-1-409. Accordingly, appellants are not included in § 15-1-409(a) by virtue of the definition of landowner. However, this exclusion does not necessarily mean that appellants are precluded from challenging the validity of the annexation ordinance. The plain language of § 1-37-108 grants the right to pursue declaratory relief to those affected by a municipal ordinance and who are seeking to challenge its validity. As discussed previously, appellants have standing under the declaratory relief act. We therefore must determine whether the legislature intended § 15-1-409 to preclude such declaratory relief.

[123] Section 15-1-409(a) provides a right of review to those who own property in the territory proposed to be annexed and the owners of real property within the city or town. The plain language of subsection (a) grants this right of review for challenges to the governing body's acts and findings. Subsection (a) contains no express language denying other classes of aggrieved persons the right to bring a declaratory judgment action challenging the validity of the annexing ordinance. The declaratory judgments act was in effect at the time the annexation statute was passed, so we presume the legislature was aware of the act and could have exeluded such causes of action had it so desired. See Rodriguez v. Casey, 2002 WY 111, ¶ 10, 50 P.3d 323, ¶ 10 (Wyo.2002).

[T24] Notably, the landowners granted a right of review by § 15-1-409 are those who are within the territory to be annexed. These parties do not have to rely on the expanded definition of landowner provided by $ 15-1-401 to be entitled to notice of the annexation. These landowners are always entitled to specific notice under § 15-1-The landowners within the annexing territory wishing to challenge the governing body's acts and findings would therefore conceivably be aware of and at the public hearing required by Wyo. Stat. Ann. § 15-1405 (LexisNexis 2001) and situated to appeal the municipality's acts and findings.

[T25] The notice requirements for the landowners of adjoining property, such as the appellants, are not similarly absolute. The notice to these parties depends on whether the City has exercised authority pursuant to § 15-3-202(b)(ii). See Wyo. Stat. Ann. § 15-1-401. The parties in this action provide us with no authority to support the proposition that the City has exercised jurisdiction under § 15-3-202(b)@i). Our review of the Cheyenne City Code revealed no such action either. -It is thus possible that adjoining landowners such as the appellants would not know of the annexation or the public hearing until well after the annexation had become effective.

[126] Looking to subsection (b) we further see that the review afforded is for abuse of discretion or arbitrariness or capriciousness. Such a review considers, in essence, the merits of the governing body's actions and findings, not the validity of the annexation ordinance. The review afforded also allows for a determination of whether "the landowner's right in his property is being unwarrantedly invaded." Appellants, not being "landowners" under this section, do not have standing to make such a claim. Thus, the only avenue for the protection of their interests is a determination of the validity of the annexation ordinance through a declaratory judgment. Considering the statute as a whole and the context of this right of review following notice and the public hearing, we can see that the legislature's purpose was to present the named parties with an express right of review to challenge the merits of the governing body's findings and decisions.

[T 27] We thus find that nothing in § 15 1-409(a) evidences a legislative intent to preclude declaratory judgment actions challenging the validity of an annexation ordinance. Certainly, the only parties entitled to challenge the merits of the governing body's findings and decisions are those listed within § 15-1-409(a). However, other classes of aggrieved individuals may challenge the validity of an annexation ordinance by way of the declaratory judgments act.

[128] We lastly consider whether appellants timely filed their action. The statute of limitations governing declaratory judgment actions is that "applicable to ordinary actions at law and suits in equity." Anderson v. Wyoming Dev. Co., 60 Wyo. 417, 154 P.2d 318, 337 (Wyo.1944). The statute of limitation for declaratory judgments is found in Wyo. Stat. Ann. § 1-3-102 which provides that civil actions may be brought as prescribed by that chapter unless a different limitation is prescribed by statute in which case that limitation will govern. The statute of limitations prescribed by this chapter is four years. See Wyo. Stat. Ann. § 1-3-105(a)(iv)(C) (LexisNexis 2003).

[129] The issue is whether the annexation statutes prescribe a different limitation. The City and Heartland argue that § 15-1-409(c) provides such a differing limitation. We do not agree. Subsection (c) must be read with the preceding subsections. It is the individuals challenging the findings and decisions of the governing body by way of subsection (a) that must bring an appeal within ten days. The language of subsection (c), "All proceedings to review the findings and the decisions of the governing body" refers to the language of subsection (a), "he may appeal to the district court for a review of the acts or findings thereof." The ten-day time limit is thus placed on the right of appeal noted in subsection (a).

[130] The effect of the ten-day provision is merely a condition to exercising the right of review mentioned in subsection (a). Additionally, as noted above, the landowners granted a right of review under this section are those entitled to notice twenty days prior to the public hearing. It is thus not unreasonable to expect them to exercise their right of review within an additional ten days. Others, like appellants, are not guaranteed specific notice and are not granted standing by this specific statute. Applying a ten-day time period to these parties therefore would be unreasonable.

[T81] Furthermore, we think it is inconsistent to say that appellants are not afforded a right of review by § 15-1-409(a), but then hold they are subject to the time limitation of § 15-1-409(c). Subsection (c) contains no express language that it should apply to any other right of action and thus does not provide a statute of limitations to declaratory judgment actions challenging the validity of an annexation ordinance. The declaratory judgment statutes are to be liberally construed to effect their broad purpose. Applying a ten-day time limit to declaratory actions when there is no clear legislative intent to do so thwarts this broad purpose. We therefore hold that aggrieved parties may thus challenge the validity of an annexation ordinance within the statute of limitations applicable to civil actions.

[132] We additionally mention that Heartland argues that the ten-day time limit must apply to other actions challenging annexation in order to give annexation matters some finality, otherwise the owner of the annexed land would not be safe in the development of his property. Certainly the finality of an annexation is a valid and important concern. However, we note that, in addition to the applicable statute of limitations, the doctrine of laches also applies to declaratory judgment actions. See Anderson, 154 P.2d 318. The defense of laches is a form of equitable estoppel based on afn] unreasonable delay by a party in asserting a right. Laches does not depend on the passage of time alone; the plaintiff must be chargeable with lack of diligence in failing to proceed more promptly. Campbell County Sch. Dist. v. Catchpole, 6 P.3d 1275, 1284 (Wyo.2000). Laches will apply when the delay has worked injustice, prejudice, or disadvantage to the defendant. Id.

[¥383] We have said:

The length of time during which the party neglects the assertion of his rights which must pass in order to show laches varies with the peculiar cireumstances of each case, and is not, like the matter of limitations, subject to an arbitrary rule. It is an equitable defense, controlled by equitable considerations, and the lapse of time must be so great, and the relations of the defendant to the rights such, that it would be inequitable to permit the plaintiff to now assert them.

Hammond v. Hammond, 14 P.3d 199, 201 (Wyo.2000) (quoting Anderson, 154 P.2d at 346). Should an aggrieved party neglect the assertion of his rights for an amount of time that works injustice, prejudice, or disadvantage to the defendant, laches would apply to prevent a later action. The facts of this case do not support a finding of laches because appellants filed their claim within ten months of the effective date of the ordinance at a time when Heartland had taken some initial steps to gain regulatory approval but had not taken any physical action on the property.

[134] Finally, we decline to consider the validity of this annexation ordinance. The district court dismissed this matter on the issue of standing and, therefore, never addressed the merits of this case. We find it prudent to remand the matter to let the district court consider the merits of the case in the first instance. Additionally, we note that because the case is no longer in a state of dismissal, the district court can consider whether or not to allow appellants to amend their complaint at this point.

CONCLUSION

[T35] For the above stated reasons, we hold that appellants have standing to bring the declaratory judgment action challenging the annexation ordinance and, therefore, reverse and remand this matter to the district court.

      . Wyo. Stat. Ann. § 15-1-402(a)(iv) provides:
      (a) Before any territory is eligible for annexation, the governing body of any city or town at a hearing as provided in W.S. 15-1-405 shall find that:

      (iv) The area sought to be annexed is contiguous with or adjacent to the annexing city or town, or the area meets the requirements of W.S. 15-1-407(.]

      . Wyo. Stat. Ann. § 15-1-411 states:
      All territory within one (1) mile of an incorporated city or town, as it now exists or may hereafter be established, is potentially an urban area. No territory within a potential urban area may be incorporated as a city or town unless the governing body of the city or town causing the potential urbanized area to exist, by resolution, approves the proposed incorporation.

      . Wyo. Stat. Ann. § 15-1-401(a)(ii) provides:
      "Landowner" means the owner of real property in the territory proposed to be annexed who in the last calendar year was liable for a property tax thereon or was exempt by law from the payment of taxes on the property. Anyone having a right to purchase land under a written contract is the owner of that land for annexation purposes. For purposes of W.S. 15-1-402, 15-1-404 and 15-1-405 "landowner" shall include persons owning property which, as a result of the proposed annexation would then be brought within one-half (1/2) mile of the corporate limits of a city which has exercised the authority granted under W.S. 15-3-202(b)(ii)[.]

      . Wyo. Stat. Ann. § 15-1-402(a)(vi) (LexisNexis 2001) provides:
      The annexing city or town, not less than twenty (20) business days prior to the public hearing required by W.S. 15-1-405(a), has sent by certified mail to all landowners and affected public utilities within the territory a summary of the proposed annexation report as required under subsection (c) of this section and notice of the time, date and location of the public hearing required by W.S. 15-1-405(a).

      . Wyo. Stat, Ann. § 15-1-405(b) does require general notice of the hearing by way of newspaper. However, it is not the specific notice provided to the landowners within the annexing territory.

      . Wyo. Stat. Ann. § 1-3-105(a)(iv)(C) provides:
      (a) Civil actions other than for the recovery of real property can only be brought within the following periods after the cause of action accrues:

      (iv) Within four (4) years, an action for:

      (C) An injury to the rights of the plaintiff, not arising on contract and not herein enumerated[.]


author: HILL, Chief Justice.

text:
    2003 WY 149
    John D. AHRENHOLTZ and Pam D. Ahrenholtz; Ahrenholtz Masonry, Inc.; and Point North LLC, Appellants (Plaintiffs), v. LARAMIE ECONOMIC DEVELOPMENT CORPORATION, a Wyoming non-profit corporation; Robert J. "Joel" Coffey; and Robert Boysen, Appellees (Defendants).
    No. 02-165.
    Supreme Court of Wyoming.
    Nov. 19, 2003.
    As Amended on Rehearing Dec. 24, 2003.

      Representing Appellants: John E. Stan-field of Laramie, Wyoming, and Walter Ur-bigkit of Cheyenne, Wyoming. Argument by Messrs. Stanfield and Urbigkit.
    Representing Appellees: Philip A. Nicholas of Anthony, Nicholas, Tangeman & Yates, LLC, Laramie, Wyoming for appellees Laramie Economic Development Corporation and Robert Boysen; and Mason F. Skiles and Joseph A. Rodriguez of Skiles & Rodriguez, LLC, Laramie, Wyoming, for appellee Robert J. "Joel" Coffey. Argument by Messrs. Skiles and Nicholas.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   HILL, Chief Justice.

[T1] John D. Abhrenholtz, Pam D. Ahren-holtz, Ahrenholtz Masonry, Inc. and Point North, LLC appeal an order of the district court granting summary judgment on their complaint that the defendants Laramie Economic Development Corporation (LEDC), Robert J. "Joe!" Coffey, and Robert Boysen (collectively defendants) had intentionally interfered with a potential contractual relation or business expectancy relating to the planning and construction of an expansion to the campus of Wyoming Technical Institute (WTI) in Laramie, Wyoming.

[12] We affirm in part, reverse in part, and remand for trial.

ISSUES

[43] John Ahrenholtz (Ahrenholtz) and his co-appellants present two issues for review:

Issue 1: Whether the Trial Court committed error in making the dual findings that there was no genuine issue of any material fact and that each and all defendants were entitled as a matter of law to summary judgment dismissing Plaintiffs' claims of intentional interference with their existent or prospective business opportunity as contractually involved in the Wyoming Technical Institute relocation project (Plaintiffs' Vision 2000 project) proposal.
Issue 2; Whether the Trial Court committed error in failure to give the Appellants as Plaintiffs the benefit in a summary judgment decision of recoverable damage concepts provided by the Restatement (Second) of Torts, § 774A and in particular § 774A(1)(c), Emotional Distress Damages.

Appellees LEDC and Boysen respond with a single statement:

Whether the trial court properly entered summary judgment in favor of defendants Laramie Economic Development Corporation and Robert Boysen, and against Plaintiffs' [sic] on their claim for intentional interference with a business expectancy?

Appellee Coffey sets out two issues for review:

1. Whether there were any material facts or any evidence presented in the District Court by Appellants to even support an allegation of intentional interference with a business opportunity let alone defeat a Motion for Summary Judgment by Appellees.
2. Whether Appellants provided any realistic basis for recovery of purported damages from Appellees including the alleged but unsupported claim of emotional distress.

FACTS

[14] WTI operates an automotive and diesel technology school in Laramie, Wyoming. The principal campus is located on U.S. Highway 287 approximately two miles north of the city limits of Laramie. In 1998, WTI leased a portion of a building adjacent to the campus owned by Ahrenholtz Masonry, Inc. (AMI). AMI is a Wyoming corporation jointly owned by the plaintiff Ahrenholtz and his father and brother.

[15] In April 1998, Jim Mathis, the President of WTI, contacted John Ahren-holtz about the possibility of constructing an addition to the Abrenmholtz building to accommodate an expansion of WTI. The initial discussion quickly evolved from an addition of 10,000 square feet to AMI's existing building into a large project envisioning a substantial expansion of WTT's facilities, including a new building of 50,000 to 150,000 square feet, along with new dormitories and other facilities.

[T6] Abrenholtz agreed to assist Mathis with the plans for the proposed expansion. Ahrenholtz called the project "Vision 2000." As the project evolved, it became clear that the land where the AMI building was located was inadequate for the proposed expansion. Since the land was located outside of Laramie's city limits and the size of the project necessitated water and sewer services, it was concluded that annexation by the City of Laramie would be required. Ahrenholtz also began investigating the possibility of purchasing adjoining lands to accommodate the growing size of the project.

[17] Abrenholtz hired Robert J. Coffey to perform surveying and engineering work on the project. Because of his limited financial resources, Abhrenholtz also began to seek outside investors. In the fall of 1998, Abhren-holtz contacted Robert Boysen, President of LEDC, a non-profit corporation that seeks to further the economic development of the Laramie area, for assistance in locating potential governmental sources of financing.

[T8] Abrenholtz encountered difficulty in securing financial commitments from potential investors because he did not have a binding agreement with WTI. Accordingly, Ab-renholtz attempted to obtain a letter of intent from Mathis and WTI. Abrenholtz submitted several letters of intent with various terms but Mathis declined to sign any of them. Mathis indicated that the owner of WTI, Bankers Trust, was in the process of selling the school and, as a result, would not commit to the expansion project.

[19] Despite the absence of a binding agreement, Abrenholtz continued to pursue the project. He developed schematics and plans for the proposed facilities, including various revisions suggested by Mathis. Ah-renbholtz also purchased land adjoining the property where AMI's building was located. Ahrenboltz's contemporaneous notes indicate that he was aware that there was a risk inherent in his expenditures on the project without an agreement but that possible revenue, if the project came to fruition, was a significant factor in continuing to pursue it.

[T10]) In December 1998, Coffey and Boysen approached Ahrenholtz with an offer to invest in the project by purchasing the real estate upon which the expansion was to be located. Abrenbholtz refused the offer. Several months later, in February 1999, Ab-renboltz asked Coffey and Boysen if they would be interested in investing money in the project. This time, they refused the offer.

[T11]j Meanwhile, also in December 1998, LEDC purchased land from the City of Laramie located west of the city. The West Laramie property was officially annexed by the City of Laramie in April 1999. At some point, LEDC's property became a potential site for the WTI expansion project. Mathis insisted that WTI did not begin consideration of that property as an alternative location until June 1999. Ahrenholtz contended that consideration had begun much earlier than that and pointed to the minutes of an LEDC meeting of May 11, 1999:

Gary Crum reported that everything was going as planned with the Wyo. Tech. [elx-pansion project and that recently the City of Laramie approved the annexation of the Wyo. Tech. [pJroperty, which will allow for the development of sewer to the property.

At the time of the meeting, the LEDC West Laramie property had been annexed, but the Abhrenholtz property had not. A potentially complicating factor was that Boysen had resigned as President of LEDC in April 1999 and taken employment with WTI in early May 1999. Mathis stated that Boysen was hired specifically to help with the expansion of WTI. During a trip in April, Boysen had told Ahrenholtz that, "I need you to not tell me any more about your project. I may be in competition with you."

[112] In January 1999, Bankers Trust had sold WTI, and the new owners had given Mathis permission to pursue the expansion project. Ahrenholtz continued to pursue investors for his proposal but had no success without a commitment from WTI. Accordingly, Abhrenholtz continued to press Mathis to sign a letter of intent. Finally, Mathis delivered a letter to Ahrenholtz on April 19, 1999, setting forth various conditions Ahrenholtz would have to meet by May 15, 1999 in order to be considered for the project. Mathis testified in his deposition that Ahrenholtz's proposal was still in consideration until sometime in July, when he and Ahrenholtz had a "heated" discussion relating to WTT's consideration of other sites for the expansion location.

[1183] In September 1999, WTI contract ed with LEDC to purchase the West Laramie property and entered into an agreement with Bob Blake Builders, Inc. to build the new facilities. It was subsequently disclosed that Coffey had done some surveying work in August 1999 for LEDC on the West Laramie property. Coffey also did work for Bob Blake Builders on the construction project itself,

[T 14] Ahrenholtz, along with his wife and corporate entities AMI and Point North, subsequently filed suit against LEDC, Boysen, and Coffey. Ahrenholtz asserted six causes of action: (1) intentional interference with a business expectancy; (2) professional misconduct (specific to the defendant Coffey only); (8) conversion; (4) fraud; (5) conspiracy; and (6) intentional infliction of emotional distress. The defendants responded with a motion to dismiss that was converted into a motion for summary judgment when the defendants attached documents to their initial motion.

[115] After allowing discovery and the submission of briefs, the district court granted the motion for summary judgment in part and denied it in part. Initially, the district court dismissed Abrenholtz's wife from the proceeding since it was unable to determine that she played any role in any of the events constituting the basis for the action. The district court quickly dismissed the claims for intentional infliction of emotional distress, conspiracy, fraud, and conversion on the basis that there was no evidence to sustain the claims. On Abrenholtz's main claim of interference with a business expectancy, the district court noted "it would seem that perhaps there is possibly an inference that some kind of interference may have occurred." Howeyer, the court noted that when the specific acts of the defendants were broken down, an "impermissible leap of logic" was required to reach that conclusion. Essentially, the district court concluded that the evidence supported a conclusion that Abhrenholtz simply was unable to put together a proposal with the necessary financing and physical infrastructure (sewage, water systems). The court noted that in context the "evidence appeared] to be undisputed that none of the Defendants intentionally or improperly interfered with the Plaintiffs' pursuit of their contract or business expectancy with WTI." The final cause of action was the professional misconduct claim against Coffey. The district court denied the motion for summary judgment on that claim because Coffey had failed to provide testimony from an expert witness setting forth the standard of care and establishing that Coffey's actions were not a violation of that standard. The court retained the claim against Coffey and certified the remainder of its decision on the motion for summary judgment as a final order pursuant to W.R.C.P. 54(b) finding that there was no just reason to delay an appeal. Ahrenholtz challenges the district court's decision on the defendants' motion for summary judgment in this appeal.

STANDARD OF REVIEW

[116] We have set out our standard for reviewing summary judgments innumerable times:

The standard of review applied by this Court in reviewing the granting of summary judgment is well-settled. "When a motion for summary judgment is before the supreme court, we have exactly the same duty as the district judge; and, if there is a complete record before us, we have exactly the same material as did he. We must follow the same standards. The propriety of granting a motion for summary judgment depends upon the correctness of a court's dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in affidavits, depositions and other proper material appearing in the record. We separate the formal and pretended from the genuine and substantial so only the latter may be considered in eliminating the burden of a formal trial if only questions of law are left to decide; there must be no issue of material fact to decide. A material fact, expressed in various ways, is one having legal significance which would in a given case control the legal relations of the parties; one upon which the outcome of the litigation depends in whole or in part; one on which the controversy may be determined; one which will affect the result or outcome of the case depending upon its resolution; or one which constitutes a part of the plaintiffs cause of action or the defendant's defense. Summary judgment affords an opportunity for prompt disposition of a lawsuit in its early stages, permitting an end to unfounded claims and avoiding the expense of a full-fledged trial to both litigants and the state's judicial machinery." Reno Livestock Corp. v. Sun Oil Co. (Delaware), 638 P2d 147, 150-51 (Wyo.1981) [ (citations omitted) ].

Hoblyn v. Johnson, 2002 WY 152, ¶ 11, 55 P.3d 1219, ¶ 11 (Wyo.2002) (quoting McLean v. Hyland Enterprises, Inc., 2001 WY 111, 1 14, 34 P.3d 1262, ¶ 14 (Wyo.2001)).

DISCUSSION

[117] The elements of a claim for tortious interference with a prospective contractual relation:

One who intentionally and improperly interferes with another's prospective contractual relation (except a contract to marry) is subject to liability to the other for the pecuniary harm resulting from loss of the benefits of the relation, whether the interference consists of
(a) inducing or otherwise causing a third person not to enter into or continue the prospective relation or
(b) preventing the other from acquiring or continuing the prospective relation.

Restatement (Second) of Torts, § 766B (1979); Birt v. Wells Fargo Home Mortgage, Inc., 2008 WY 102, ¶ 71, 75 P.3d 640, ¶ 71 (Wyo.2003).

[T18] Abrenholtz contends that the evidence produced through affidavits, depositions, and documents was sufficient to create an issue of material fact necessitating a trial. His argument is predicated on the inferences one could reasonably draw from the facts noted above. At a minimum, Ahrenholtz contends that these facts and inferences create a material issue of fact as to whether or not there was intentional interference causing a termination of his relationship or business expectancy with WTL

[119] The defendants, on the other hand, contend that there was neither a contract nor a business expectancy that could be interfered with by them. They note that Ahren-holtz acknowledged that he did not have any agreement with WTI and that his work on the project was a "gamble" where he had "gone out on a limb." Furthermore, they insist that the district court correctly found that there was no evidence they had intentionally interfered with any relationship Ah-renboltz had with WTI. Specifically, they point out that the West Laramie land was not considered as a potential site until June 1999 and that the President of WTI, Mathis, testified in his deposition that Boysen had no influence over the final decision on where the expansion was to be located or who would be hired to construct the facilities. In short, the defendants contend that there are no facts that could support Ahrenholtz's contentions, and that the district court properly granted the motion for summary judgment.

[120] Our decision on appeal is guided by our standard of review. As noted above, we are constrained to view the record in a manner that is most favorable to the party opposing the motion for summary judgment, Ah-renholtz. The inference that Abrenholtz draws from the evidence is that Coffey and Boysen used their knowledge of his project and, in the case of Boysen, his position as President of LEDC and later as an employee of WTI, to cause the rejection of Ahren-holtz's proposal in favor of construction of the expansion project on land purchased from LEDC. The facts Abrenholtz cites in support of his contention include:

@In December 1998, Coffey and Boysen offered to invest in the proposed project by purchasing Abrenholtz's property. The offer was declined.
@In the same month, LEDC purchased land west of Laramie that was annexed by the City of Laramie in April 1999.
e In February 1999, Abrenholtz asked Coffey and Boysen if they would invest money in the project. They declined the offer.
® In April 1999, Boysen resigned as President of LEDC and went to work for Mathis at WTI Boysen was hired specifically to assist WTI with their expansion.
® Also in April, Boysen told Ahrenholtz not to reveal any additional details about his proposal because he might "be in competition with [Ahrenholtz]."
* In early May, a comment was made at an LEDC open meeting that the WTI pro-jeet was proceeding as planned and "recently the City of Laramie approved the annexation of the [WTI] Property, which will allow for the development of sewer to the property." The LEDC property bad been annexed by the City of Laramie several weeks before the meeting. Abrenholtz's property had not been annexed.
e WTI ultimately rejected Abrenholtz's proposal and built its new facilities on the West Laramie site, which WTI had purchased from LEDC in September 1999.
® Coffey did survey work for LEDC on the West Laramie property and then, after it was sold to WTI, did work on the construction of the new facilities.

The district court acknowledged there was the possibility of an inference that some kind of interference took place; however, it concluded that when the specific acts of the defendants were examined, it required "an impermissible leap of logic to reach that conclusion." In other words, the court concluded that there was no direct evidence of interference; hence, the inferences were not sufficient to avoid summary judgment.

[121] We must disagree with the district court's conclusion. We acknowledge that the evidence offered by Ahrenholtz in opposition to the motion for summary judgment was cireamstantial in nature. Howeyer, "circumstantial evidence is not evidence of a lower order; the law makes no distinction between the weight to be given to either direct or cireumstantial evidence." John Q. Hammons Inc. v. Poletis, 954 P.2d 1353, 1357-58 (Wyo.1998). The facts of this case are largely not disputed. What is disputed is the meaning of those facts. For example, the parties vigorously dispute the meaning of the statement made at the open meeting of the LEDC in May 1999. This evidence carries some importance because, if true, it would contradict the defendants' testimony as to when WTI began consideration of LEDC's West Laramie property as a potential expansion site (which, in turn, would impact the overall credibility of the defendants). Ahrenholtsz notes that the statement must refer to the West Laramie property owned by LEDC because it had been annexed by the city at that time, while the Abrenholtz property had not. The defendants counter with an affidavit from LEDC's secretary that the reference was to Ahren-holtz's property and a draft annexation relating to that property which was pending at the time. This is a question of credibility. Did the statement mean what it purports to say on its face or did it mean what the person who recorded the statement (but was not its author) says it meant? The fact that the secretary was an employee of one of the parties to this action is a factor that would have to be considered in determining what inferences, if any, should be drawn from this piece of evidence.

Summary judgment should not be granted where contradictory inferences may be drawn from undisputed evidentiary facts. Even where the facts bearing upon the issue of negligence are undisputed, * * * if reasonable minds could reach different conclusions and inferences from such facts, the issue must be submitted to the trier of fact. Evaluative judgment between two rationally possible conclusions from facts cannot be engaged in on summary judgment. Summary judgment is not appropriate where the record, including documents and pleadings, establishes facts which give rise to contradictory inferences, one of which supports the party opposing the motion.
* * * The motion for summary judgment is a drastic remedy and one which is designed to pierce the formal allegations and reach the merits of the controversy but only when no material issue of fact is present. * * * Although both parties are obligated to come forward with their evidence, the burden is on the moving party to demonstrate clearly that there is no genuine issue of material fact and if that is not done, the motion for summary judgment should be denied. This court looks at the record from the viewpoint most favorable to the party opposing the motion, giving to him all favorable inferences to be drawn from the facts contained in the affidavits, exhibits, and depositions.
* * * If the evidence is subject to conflicting interpretations or reasonable minds might differ as to its significance, summary judgment is improper.

Cordova v. Gosar, 719 P.2d 625, 639 (Wyo.1986) (emphasis in original) (quoting Weaver v. Blue Cross-Blue Shield of Wyoming, 609 P.2d 984, 986-87 (Wyo.1980) (internal citations and quotation marks omitted)). Accordingly, we reverse the district court's grant of summary judgment on Ahrenholtz's claim for tortious interference with a contract or a business expectancy and remand for a trial.

[122] In his second issue on appeal, Abhrenholtz challenges the district court's decision granting summary judgment on his claim for intentional infliction of emotional distress. Abrenboltz concedes that this issue is related to the status of his wife, Pam Ahrenholtz, as a plaintiff.

[123] In its decision letter, the district court dismissed Pam Abrenboltz as a party because it was "unable to determine that Mrs. Abrenholtz played any part in this matter." In a separate section of the decision letter, the district court concluded that there was no evidence that the defendants' conduct rose to a level required to sustain the claim for intentional infliction of emotional distress.

[T24] In order to prevent summary judgment on this claim, Ahrenholtz had to present evidence that the defendants, by extreme and outrageous conduct, intentionally or recklessly caused severe emotional distress. Wilder v. Cody Country Chamber of Commerce, 933 P.2d 1098, 1105 (Wyo.1997). Ahrenholtz contends that the Restatement of Torts allows for the recovery of damages for intentional infliction of emotional distress in conjunction with an action for interference with a contract or business expectancy. See Restatement (Second) of Torts § 774A(1)(c) (1979). Ahrenholtz urges this Court to accept that section of the Restatement and reinstate Pam Abrenholtz as a party.

[125] The problem with Ahrenholtz's argument is that it presupposes he has presented sufficient evidence of emotional damages to avoid the motion for summary judgment. Our review of the record convinces us that he has not. Quite simply, there is no evidence that we could find anywhere in the voluminous record on appeal that would support a claim for emotional damages. There is only the basic allegation that Pam Ahrenholtz was emotionally damaged. That is not sufficient to avoid the motion. The district court's order dismissing Pam Abhrenholtz from the proceedings and granting the motion for summary judgment on the claim for intentional infliction of emotional distress is affirmed.

CONCLUSION

[126] The record discloses the existence of material facts in dispute requiring a trial on the merits of the plaintiffs' claims. The district court's summary judgment is affirmed in part, reversed in part, and remanded.

      . Abrenholtz entered into an agreement with WTI releasing any claims against it. Accordingly, WTI is not a party to this action.

      . On appeal, Abrenholtz has only raised a challenge to the district court's ruling on its claim for intentional interference with a business expectancy and the dismissal of his wife from the litigation that implicates the efficacy of the district court's decision dismissing the intentional infliction of emotional distress claim. Since Ab-renholtz does not address the district court's ruling on the other claims, we deem them waived and will not consider the district court's decision relating to them. See O'Donnell v. Blue Cross Blue Shield of Wyoming, 2003 WY 112, ¶ 8, n. 1, 76 P.3d 308, ¶ 8, n. 1 (Wyo.2003).