author: GOLDEN, Justice.

text:
    Island RICHARDS; The Sweetwater County Central Committee of the Republican Party of Sweetwater County, Wyoming; Kevin Ringdahl; Don Hartley; and Wally Johnson, Appellants (Petitioners), v. The BOARD OF COUNTY COMMISSIONERS OF SWEETWATER COUNTY, Wyoming; Claude ("Marty") Martin; Carl Maldonado; John Pallesen; and The Central Committee of the Democratic Party of Sweetwater County, Wyoming, Appellees (Respondents).
    No. 99-253.
    Supreme Court of Wyoming.
    May 25, 2000.
    Representing Appellants: Clark D. Stith, George Lemich, and Stan Decker Cannon of Greenhalgh, Beckwith, Lemich & Stith, Rock Springs, Wyoming. Argument by Messrs. Stith and Cannon.
    Representing Appellees: Harold V. Mon-eyhun, Sweetwater County and Prosecuting Attorney; Jason Petri, Deputy Sweetwater County and Prosecuting Attorney; Ford T. Bussart and Marvin L. Tyler of Bussart, West, Rossetti, Piaia & Tyler, P.C., Rock Springs, Wyoming. Argument by Messrs. Moneyhun and Tyler.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
   GOLDEN, Justice.

This case presents an issue of first impression. In response to a complaint seeking a declaration of rights, the district court certified a question of law concerning the selection of a replacement for a county commissioner who, after being elected, changed his political affiliation and subsequently resigned. The statute at issue is Wyo. Stat. Ann. § 18-3-524 (LEXIS 1999), which provides the procedure for filling a vacancy in the office of county commissioner. However, the statute does not appear to address the situation presented here:

Do the remaining county commissioners notify the political body to which the member whose office is vacant belonged at the time of the last election or at the time the office was vacated?

We hold the county commissioners must notify the political body to which the member whose office is vacant belonged at the time of the last election. As a result, the political party which supported the county commissioner during the last general election maintains a commissioner with that political affiliation in office until the next general election.

CERTIFIED QUESTION

When a County Commissioner changes his political affiliation during his term in office and subsequently resigns, does the statutory language “the political party to which the member whose office is vacant belonged,” as stated in W.S. § 18-3-524(a), mean the political party to which the member belonged at the time of the vacancy’s occurrence?

FACTS

Elwin McGrew (McGrew) was a registered member of the Democratic party when he was elected as a county commissioner to the Board of Sweetwater County Commissioners (Board) in November, 1996. When he took office in January, 1997, he was affiliated with the Democratic party. McGrew changed his party affiliation on January 6, 1999, and became a registered member of the Republican party. Although McGrow's term of office would not have expired until January, 2001, he resigned from the Board on May 18, 1999. When he vacated office, his party affiliation was with the Republican party.

The Board notified the central committee of the Democratic Party of Sweetwater County, Wyoming (Democratic Central Committee), of the vacancy. Island Richards, as chairman of the central committee of the Republican Party of Sweetwater County, Wyoming (Republican Central Committee), and as a qualified elector in Sweetwater County, Wyoming, and the Republican Central Committee filed the instant action, seeking a declaration of their rights, status and legal relationships. The district court filed an order certifying the question to this Court.

STANDARD OF REVIEW

The certified question requires us to interpret the language of Wyo. Stat. Ann. § 18-3-524 (LEXIS 1999). As we stated in Olheiser v. State ex rel. Wyoming Workers’ Compensation Div., 866 P.2d 768, 770 (Wyo. 1994):

We have interpreted statutes on innumerable occasions, so our standard is well established. First, we determine if the statute is ambiguous by looking at the plain and ordinary meaning of the words contained therein. Parker Land & Cattle Co. v. Wyo. Game & Fish Comm’n, 845 P.2d 1040,1042-43 (Wyo.1993).
A “statute is unambiguous if its wording is such that reasonable persons are able to agree as to its meaning with consistence and predictability. * * * [A] statute is ambiguous only if it is found to be vague or uncertain and subject to varying interpretations. * * * [Wlhether an ambiguity exists in a statute is a matter of law to be determined by the court." Parker Land & Cattle Co. at 1048 (quoting Allied-Signal, Inc. v. Wyo. State Bd. of Equalization, 818 P.2d 214, 219-20 (Wyo.1991)).

DISCUSSION

Wyo. Stat. Ann. § 18-8-524 (LEXIS 1999) provides, in pertinent part:

(a) Within thirty (80) days after the office of any county commissioner becomes vacant the remaining members of the board shall declare a vacancy to exist and immediately give notice of the vacancy in writing to the chairman of the county central committee of the political party to which the member whose office is vacant belonged.

The Republican Central Committee argues the notice of the vacancy should have been given to it, as the county central committee of the political party to which Mr. McGrew belonged "when the vacancy occurred." On the other hand, the Democratic Central Committee claims the board of county commissioners correctly notified it, as the county central committee of the political party to which Mr. McGrew belonged "at the time of the last general. election." As such, the parties come to us with a question which requires this Court to finish the first sentence in subsection (a), that is, "the political party to which the member whose office is vacant belonged" when? Finding the statute does not address or anticipate the situation presented in this case, we hold the statute is ambiguous.

Onee the court determines a statute is ambiguous:

the court "will resort to general principles of statutory construction in the effort to ascertain legislative intent." Story v. State, 755 P.2d 228, 2831 (Wyo.1988), cert. denied, 498 U.S. 886, 111 S.Ct. 106, 112 L.Ed.2d 76 (1990) [sic]. We believe that in ascertaining the legislative intent in enacting a statute * * * the court * * * must look to the mischief the act was intended to cure, the historical setting surrounding its enactment, the public policy of the state, the conditions of the law and all other prior and contemporaneous facts and cireumstances that would enable the court intelligently to determine the intention of the lawmaking body. Carter v. Thompson Realty Co., 58 Wyo. 279, 291, 181 P.2d 297, 299 (1942); see also, State ex rel. Motor Vehicle Div. v. Holts, 674 P.2d 7832, 736 (Wyo.1983).

Parker Land and Cattle Co., 845 P.2d at 1044.

Our review of the "historical setting surrounding its enactment," "the conditions of law and all other contemporaneous facts and circumstances," including both parties' persuasive arguments and counter-arguments, do not aid us in determining the intent of the legislature. However, when looking "to the mischief the act was intended to cure," we find it more reasonable that, when the legislature fails to provide for a certain situation, the legislature enacts the law assuming the situation that occurs in the majority of instances. Changing party affiliation after being elected is a relatively rare and infrequent occurrence. Therefore, in the majority of instances, a county commissioner leaving office is still affiliated with the political party which supported him in the last election.

In addition, we acknowledge that a county commissioner with a major party affiliation is often supported, financially and otherwise, by the political party he has pledged his allegiance to in preparation for his election bid. It would be contrary to public policy to allow an individual to frustrate the assumption of the political party which supported him that a person from that political party would hold that office until the next election. Therefore, considering the "public policy of the state," we hold that the statute calls for the board of county commissioners to notify the central committee of the party to which the former member belonged at the time of the last election.

We answer the certified question in the negative.


source: Caselaw Access Project

author: MACY, Justice.

license: Public Domain

text:
    Larry SMALL, Appellant (Defendant), v. CONVENIENCE PLUS PARTNERS, LTD., a Colorado limited partnership, Appellee (Plaintiff).
    No. 99-278.
    Supreme Court of Wyoming.
    June 2, 2000.
    Representing Appellant: Newton S. "Rusty" Ludwig and H.W. Rasmussen of Attorneys at Law of Wyoming, P.C., Sheridan, Wyoming.
    Representing Appellee: John R. Hursh of Central Wyoming Law Associates, P.C., Riv-erton, Wyoming.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
   MACY, Justice.

Appellant Larry Small appeals from the trial court's conclusion that he failed to prove his contract with Appellee Convenience Plus Partners, Ltd. was unconscionable.

We affirm.

ISSUES

Small submits the following three issues for our analysis:

A.) Did the District Court abuse its discretion when it did not void the contract where the Appellee substantially breached the duty of good faith and fair dealing implied in the contract?
B.) Did the District Court abuse its discretion when it held that the contract was not unconscionable where the clauses of the contract were so one-sided as to be unconscionable under the circumstances existing at the time of making the contract?
C.) Did the District Court abuse its discretion when it did not rule upon claims raised by the Appellant where the Appellant clearly raised those claims in his pleadings and at trial?

FACTS

The trial proceedings were not reported. Although Small settled the record pursuant to W.R.A.P. 3.08, he, for some peculiar reason, chose to glean his statement of facts from the pleadings and briefs filed in the case. This Court cannot rely on the allegations and averments contained within pleadings and briefs as being accurate statements of facts. Parker v. Parker, 750 P.2d 1313, 1313 (Wyo.1988). We will, therefore, utilize the trial court's findings in its Judgment and Order, which are consistent with the settled Statement of Evidence, for the purposes of our discussion:

1. Convenience Plus Partners, Limited (C-Plus) is a regional gas supplier operating in several states. Plaintiff C-Plus supplied gasoline and equipment to Defendant for the operation of his gasoline sales business.
2. Defendant Small and his family own/operate a corporation known as Burger King/Texaco in Riverton, Wyoming. The sales from Defendant's Burger King/Convenience store are separate from that involving the gasoline sales. The issue in this case does not involve the defendant's Burger King operation.
3. Defendant has been in business for 19 years and operates a Burger King in Riverton, four other Burger Kings in Wyoming and one convenience store. The Riverton gas station is the first gasoline business he has operated. Defendant's business was referred to as a "co-brand" operation, i.e., a combination of two brand name "flag" businesses, Burger King and Texaco. These two businesses were operated under entirely different contracts.
4, In May of 1995, Plaintiff and Defendant entered into various contracts. The agreements were: (1) the Complete Contract of Sale Commission Marketer (2) Amortization Agreement (8) Commodity Schedule and a (4) Special Purpose Lease.... All four documents will be referred to as the contract. Defendant signed all the contracts after "briefly reading them." Defendant testified he understood what was in the contract and the agreement was a "good deal" at the time. Defendant testified on cross-examination that he now believed the contract to be unconscionable because he wasn't making a profit on the gasoline sales. The only part of the contract Defendant appeared to think was unfair was the provision in the Commodity Schedule giving Plaintiff the right to set the retail price for the gasoline. Defendant testified that for the last two or three months he had been setting the retail gasoline price. It was not clear if this was with Plaintiff's permission.
5. Defendant got behind on his cash flow in the Burger King/convenience store portion of his business and diverted the funds from the gasoline sales to other purposes. Defendant was neither reporting the gasoline proceeds nor making the payments pursuant to the contract. Plaintiff brought an action to recover the arrearag-es and for specific performance.
6. When this matter was heard, Defendant had paid all arrearages and was performing his part of the contract. Defendant testified that he was performing his obligations under the contract and would continue to do so unless, of course, the Court would find the contract unconscionable. The only issue remaining before this Court was whether or not the contract entered into by Plaintiff and Defendant was unconscionable.
7. ... [A] managing partner of Plaintiff C-Plus{] testified that Defendant seemed content signing the contract and in May of 1995 had signed an identical contract for a similar business in Sheridan. [This managing partner] testified Defendant gave no indication that he didn't understand the contract. This contract is used in most of the states where Plaintiff does business and there was nothing unique about the contract between Plaintiff and Defendant.
8. Defendant claimed he should be entitled to an offset. There was no relevant testimony concerning an architectural fee offset. The Court finds no offset is warranted.

(Footnote omitted.)

The trial court concluded that, although Small may have entered into an unwise business venture, he failed to establish that the contract was unconscionable and granted Convenience Plus Partners' prayer for specific performance. Small appeals to this Court.

DISCUSSION

The argument section of Small's brief consists mainly of a recitation of the provisions that, in his opinion, make the contract unfair. We summarily affirm cases or issues that have not been presented with cogent argument or supported by pertinent authority. Baker v. Reed, 965 P.2d 1153, 1154 (Wyo.1998). Other than citing to a few authorities that support very general legal principles, Small's brief is completely devoid of specific cogent argument or authority to support his assertion that this particular contract is unconscionable. We, accordingly, summarily affirm this case.

Convenience Plus Partners requests that sanctions be levied against Small for his disregard of various rules of appellate procedure. Generally, this Court is reluctant to impose sanctions, but we will make such an award in those rare circumstances where an appellate brief lacks cogent argument, is devoid of pertinent authority to support the claims of error, and/or fails to make adequate references to the record. Williams v. Dietz, 999 P.2d 642, 645 (Wyo.). We conclude that this is one of those rare cireumstances where sanctions pursuant to W.R.A.P. 10.05 are appropriate. Convenience Plus Partners shall submit a statement of costs and attorney's fees associated with responding to this appeal. Upon review, we will award an appropriate amount in the form of sanctions.

Affirmed.


author: HILL, Justice.

text:
    Annette LUNDE, Appellant (Petitioner), v. STATE of Wyoming, ex rel., WYOMING WORKERS' COMPENSATION DIVISION, Appellee (Respondent).
    No. 99-281.
    Supreme Court of Wyoming.
    June 7, 2000.

      Representing Appellant: Stephenson D. Emery of Williams, Porter, Day & Neville, P.C., Casper, Wyoming. Argument presented by Mr. Emery.
    Representing Appellee: Gay Woodhouse, Attorney General; John W. Renneisen, Deputy Attorney General; and Bernard P. Hag-gerty, Senior Assistant Attorney General. Argument presented by Mr. Haggerty.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
   HILL, Justice.

Appellant, Annette Lunde (Lunde), seeks review of the district court's order affirming an order denying benefits issued by a hearing examiner, after a hearing into Lunde's claim for additional worker's compensation benefits. The hearing examiner concluded that Lunde had failed to meet her burden of proof to demonstrate that, because of her work-related injury, she was unable to return to employment at a comparable or higher wage than the wage she was earning at the time of her injury. We affirm.

ISSUES

Lunde advances these issues:

A. Whether the Office of Administrative Hearings ("Office") erred as a matter of law in denying Annette Lunde ("Appellant") an award of loss of earnings benefits by concluding that, for purposes of Wyo. Stat. § her pre-injury wage was comparable to a post-injury potential wage. f
B. Whether the Office erred as a matter of law in denying appellant an award of loss of earnings benefits by refusing to consider what appellant would have earned if she had been able to continue her employment as a convenience store manager, the difference due to inflation between 1988 and 1997 wages, and the difference in cost of living and in wages between Sweet-water County, Wyoming in 1988 and Southern California in 1997 in deciding what is a "comparable wage" as that term is used in Wyo. Stat. § 27-14-405(b)G).

Appellee, the Wyoming Workers' Compensation Division (Division) provides this restatement of the issues:

I. Is the availability of permanent partial disability benefits a mixed question of law and fact?
II. Were the Hearing Examiner's findings of basic fact supported by substantial evidence?
III. Did the Hearing Examiner properly apply the permanent partial disability statute?

FACTS

Lunde began working for a "Maverick Convenience Store" in Rock Springs in April of 1979 and was continuously employed there until an on-the-job injury made it impossible for her to continue that work. On September 6, 1988, while in the course and seope of her employment, Lunde was bitten by a brown recluse spider, and the medical consequences of that event have left her disabled. Lunde did receive worker's compensation benefits for her injury. Because she was physically unable to return to work, Lunde's employment with Maverick Stores was terminated. She was treated for her injury in Wyoming for about one year and then moved to California in August of 1989 to live with her mother. She has received additional medical care there in the intervening years. Lunde has not been employed for any significant period of time since her injury and, at the time of the hearing, was receiving disability benefits from the Social Security Administration on the basis that she was disabled.

Lunde was earning $7.34 per hour at the time of her injury, and the conclusion of the vocational evaluation was that she could presently earn $7.25 per hour.

STANDARD OF REVIEW

Our standard of review in a case such as this is well-established:

A claimant for worker's compensation benefits has the burden of proving all the essential elements of the claim by a preponderance of the evidence in the contested case hearing. Martinez v. State ex rel. Wyoming Workers' Compensation Div., 917 P.2d 619, 621 (Wyo.1996). When an agency decides that the party charged with the burden of proof has failed to meet that burden, the case is reviewed under the "[ailrbitrary, capricious, an abuse of discretion or otherwise not in accordance with law" language of Wyo. Strat,. § 16-3-114(c)(ii) (1990). City of Casper v. Utech, 895 P.2d 449, 452 (Wyo.1995). On appeal the complainant, Pederson in this instance, has the burden of proving arbitrary administrative action. Knight v. Environmental Quality Council of State of Wyo., 805 P.2d 268 (Wyo.1991); Wyoming Bancorporation v. Bonham, 527 P.2d 482, 489 (Wyo. 1974) Marathon Oil Co. v. Welch, 879 P.2d 832, 836 (Wyo.1963); Whitesides v. Council of City of Cheyenne, T8 Wyo. 80, 319 P.2d 520, 526 (1957). The agency, as the trier of fact, is charged with weighing the evidence and determining the eredibility of witnesses. Ufech, 895 P.2d at 451, and cases there cited. The deference normally accorded to the findings of fact by a trial court is extended to the administrative agency, and the ageney's decision as to the facts will not be overturned unless it is clearly contrary to the overwhelming weight of the evidence. Wyoming Steel & Fab, Inc. v. Robles, 882 P.2d 878, 8T5 (Wyo.1994). Demonstrating evidentiary contradictions in the record does not establish the irrationality of the ruling, but we do examine conflicting evidence to determine if the agency reasonably could have made its finding and order based upon all of the evidence before it. Matter of Cor-man, 909 P.2d 966, 971 (Wyo.1996); Knight, 805 P.2d at 274; Ward v. Board of Trustees of Goshen County School Dist. No. 1, 865 P.2d 618, 628 (Wyo.1993); State ex rel. Wyoming Workers' Compensation Div. v. Ramsey, 889 P.2d 986, 941 (Wyo. 1992).

Claim of Pederson, 989 P.2d 740, 742 (Wyo. 1997) Erdman v. State ex rel. Wyoming Workers' and Safety Compensation Division, 5 P.3d 64, 65-66 (Wyo0.2000).

DISCUSSION

Of the greatest significance for purposes of this appeal is Lunde's contention that there were, for all intents and purposes, very few, if any, jobs available that she could perform given the limitations created by her injury. Continuing, she asserts that, in any event, the jobs utilized in the process of determining her current wage earning ability were definitely not jobs she could physically perform, and that several of the jobs used to calculate her wage earning ability were not available or she did not meet the essential qualifications for the jobs. There is no dispute that her attending physician described her occupational limitations as follows:

A sedentary job should be appropriate if it could be met with the following restrictions. Standing requirements of less than 15 minutes at a time and an intermittent 10 minute break for rest and elevation [of her leg]. Sitting should be limited to less than 45 minutes if the leg is not elevated or less than two hours if she is permitted to elevate it. She should be able to avoid more than one flight of stairs and not be required to lift or carry more than five pounds.

Although there is clearly an apparent divergence between the attending physician's view of Lunde's occupational capabilities and the disability determination made by the Social Security Administration, the evidence presented by Lunde does not aid us in resolving that seeming contradiction.

Counterpoised to Lunde's contentions is a vocational evaluation. which was performed at the request of the Division and which identified several general types of work that Lunde could perform despite her disability. The burden of proof Lunde was required to meet is set out in Wyo. Stat. Ann. § 27-14-405(L)(i) (LEXIS 1999):

(h) An injured employee awarded permanent partial impairment benefits may apply for a permanent disability award subject to the following terms and conditions:
(1) the injured employee is because of the injury, unable to return to employment at a comparable or higher wage than the wage the employee was earning at the time of injury[.1

Wyo. Stat. Ann. § 27-14-405(j) sets out a formula for calculating an award of benefits under § 27-14-405(bh), if one is due. In Lunde's case, the Division determined that her capacity to earn $7.25 an hour was "comparable" to her $7.34 per hour earnings at the time of her injury and, therefore, she was not entitled to any additional benefits.

Lunde argues that the vocational evaluation is flawed in many respects, and that the hearing examiner's conclusions relied almost entirely upon that vocational evaluation. Hence, the decision to deny benefits is arbitrary, capricious, an abuse of discretion, not supported by substantial evidence, or otherwise unlawful. Lunde contends that the hearing examiner should have considered inflation over the years 1988-1998, the higher cost of living in California, overtime pay that she had historically earned at Maverick, and the likelihood that she would be making about $12.50 per hour now, if she had been able to continue her career with Maverick Stores.

We agree with the Division that the statute does not authorize nor permit the hearing examiner to consider those factors. Lunde's argument certainly has considerable logical appeal, but the statute does not provide for it, and Lunde has cited no pertinent authority nor presented cogent argument that could sustain such a holding by this Court. We find no error in this regard.

However, we must, in the same breath, note the incongruity of the vocational evaluation with respect to these matters. The Division is resolute in its position that time and geography (inflation, relative cost of living, etc.) can play no role in calculating an award such as that sought by Lunde. Yet, the vocational evaluation was prepared in San Diego, California, by an employee of CRA Managed Care, Inc., and all of the information about jobs that were potentially available to Lunde are located in that geographical area.

The evaluation presumed that the severely disabled Lunde could be hired for any one of several jobs listed in the evaluation at the mid-point of the salary range listed for those jobs. For example, for the job at the Union Bank of America (which required standing largely throughout the shift and the lifting of boxes of coins) the salary range was $6-$7 per hour (6+7=18; divided by 2 = $6.50 per hour). Six of the nine jobs listed in the evaluation paid in the $6-$7 per hour range. One job was listed at $6.00 per hour (that job, working for Avis car rental as a sales agent, required "twisting, stooping, starting, and cleaning cars"). Another job, working in customer service for Enterprise Rent-A-Car (which required college-AA, BA preferred), paid $2,200 per month (approximately $11.50 per hour). One bank teller job (which required standing, some stools, more sales oriented requiring greeting) paid $7.50-$10 per hour (7.50 +10=17.50, divided by 2 = $8.75). Of the nine jobs listed, only four noted current or pending vacancies. *

The statute requires that the loss of earning capacity be based on what Lunde earned in Wyoming at the time of her injury. Likewise, if the Division is going to rely on a vocational evaluation to demonstrate current earning capacity, then that should be based on available jobs in Wyoming. In this case, as would be the case with any disabled worker, the jobs used in such an evaluation must be conducted with some basis in reality which gives recognition to the worker's disability. Lunde's contention that she was probably unable to perform most, if not all, of the jobs used in the evaluation-not to mention that she did not appear to qualify for many of them-is intuitively obvious even to the most casual observer. For these reasons we conclude that the vocational evaluation offered by the Division was of no eviden-tiary value in resolving this case and should not have been considered by the hearing examiner.

However unavailing the evidence offered by the Division might have been, the burden of proof still rested on Lunde's shoulders,. Her testimony was anecdotal, self-serving, in part based on an informal conversation with one employee in a single convenience store in California, was not supported by documentary evidence, affidavits, reports, or other reliable sources of information, and demonstrated that she was able to work periodically (but without any substantial showing that there was good reason that she was not able to work more than periodically, except for those periods when she was undergoing medical treatment procedures). Although a broad range of informal evidence, including hearsay, is admissible in a worker's compensation hearing, any offered evidence must be probative, trustworthy, and credible. Clark v. State ex rel. Workers' Safety, Compensation Division, 968 P.2d 486, 439 (Wyo.1998); Wyo. Stat. Ann. § 16-38-108(a) (LEXIS 1999). Upon careful examination of all evidence in the record offered by Lunde, and leaving out of consideration the vocational evaluation for which the Division paid, we are compelled to conclude that Lunde did not meet the burden of proof placed on her by the governing statute. Thus, we hold that the ultimate conclusion of the hearing examiner must be affirmed.

Because of this disposition, we need not further consider our holding in Adams v. State ex rel. Wyoming Workers' Safety and Compensation Division, 975 P.2d 17 (Wyo. 1999). There, we held that "comparable," as used in § meant "substantially equal" or "equivalent," and wages are only "comparable" if the difference between them is insignificant. Id., 975 P.2d at 20. We are unable to apply that standard here because Lunde has failed to present evidence which would provide the raw materials for such a comparison to be made.

Lunde also asks that we consider her case in light of Claim of Nielsen, 806 P.2d 297 (Wyo.1991). We have reviewed Nielsen, a permanent total disability case determined under Wyo. Stat. Ann. § 27-14-408 (LEXIS 1999), and conclude that the holding of that case does not apply to the circumstances presented by Lunde's case.

For these reasons, the order of the district court affirming the determination of the hearing examiner's denial of benefits is affirmed.

      . As manager of the store, Lunde performed a wide range of tasks associated with management of that business enterprise. In this instance, it was necessary for her to enter into a crawl space beneath the store in order to attach a drain to a soft drink dispensing machine. During the course of that task, she was bitten by a brown recluse spider.

      . 20 C.F.R. § 404.1505 (1999) provides: (a) The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment [which] can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. To meet this definition, you must have a severe impairment, which makes you unable to do your previous work or any other substantial gainful activity which exists in the national economy. To determine whether you are able to do any other work, we consider your residual functional capacity and your age, education, and work experience.

      . Lunde had neither an AA or BA degree.

      . Effective July 1, 2000, Wyo. Stat. Ann. § 27-14-405(h)(i) has been amended to read:
      (i) The injured employee is because of the injury, unable to return to employment at a wage - that is at least ninety-five percent (95%) of the monthly gross earnings the employee was earning at the time of injury;
      Enrolled Act No. 32, Senate, 2000 Budget Session. |


text:
    Darrell JOHNSON, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 99-181.
    Supreme Court of Wyoming.
    June 7, 2000.

      Representing Appellant: Donald L. Painter, Casper, Wyoming.
    Representing Appellee: Gay Woodhouse, Attorney General; Paul Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
   HILL, Justice.

Appellant, Darrell Johnson (Johnson), seeks review of the district court's order revoking his probation and imposing a sentence of 18 to 36 months in the Wyoming State Penitentiary. Johnson's principal contention is that he lacked adequate financial means to fulfill the condition of probation (completion of sex offender counseling), which resulted in revocation of his probation, and, therefore, he is being punished because he is indigent. We affirm.

ISSUE

Johnson provides this statement of the issue:

1. Whether Appellant's financial cireum-stances at the time of hearing were sufficient, as a matter of law, to exeuse his noncompliance with the probationary requirement for counseling.

In response, the State poses this summary of the issue:

Whether the district court properly revoked appellant's probation and ordered his incarceration.

FACTS

On March 28, 1995, Johnson entered a plea of "no contest" to a charge of second-degree sexual assault. As its sentence, the district court placed Johnson on probation for a period of five years. A number of conditions of probation were prescribed, and for purposes of this appeal, the pertinent ones are these: (1) "That the defendant be under the direct supervision of the Department of Corrections, Probation and Parole, and shall obey that Department's Rules and Regulations;" (2) "That the Defendant shall obtain and successfully complete counseling as directed by Probation and Parole." On May 30, 1995, Johnson was admitted to outpatient treatment at Central Wyoming Counseling Center. At the conclusion of that treatment, the following report, dated July 17, 1995, was made to Johnson's probation officer:

Mr. Johnson was admitted to outpatient treatment 5-30-95. He was required to attend four sessions, individual and group. He was also required to provide me with court papers or documentation regarding his crime and to sign releases to the Court. He complied with these conditions. However, his behavior was belligerent, argumentative and oppositional during his sessions. As we discussed in our phone conversation Mr. Johnson is resistive to any type of treatment. As she [sic] stated in session he believes that his conviction will be appealed and therefore feels he is being needlessly punished. I explained I would discharge him and that my records reflect therapy is not being used productively and is not effective.

Johnson's term of probation appears to have progressed without incident until late in 1998, when his case was assigned to a new probation officer, Carolyn Kelessidou Biggs. Although Johnson had attended "counseling" in 1995, as noted in the above-quoted letter, that participation was not productive or effective. Johnson did not participate in any other counseling between 1995 and 1999, and Biggs characterized that oversight as: "somehow he fell through the cracks." Based upon the requirements of the Rules and Regulation of Probation and Parole, Biggs directed Johnson to attend sexual offender counseling. Although he did show up for the initial intake interview, Johnson refused to participate in that program, principally because he was required to admit his guilt and/or take a series of polygraph tests. Had he denied his guilt and successfully passed a polygraph test, he would not have been considered an appropriate candidate for that program and would not have been required to participate in it. Johnson also contended that he did not have funds to pay for the counseling program and the cost was significant.

The only issue Johnson raises in this appeal is that his noncompliance with the directive from Probation and Parole to attend the sexual offender counseling program should be excused because of his financial circumstances. Johnson also expresses, albeit somewhat informally and without benefit of pertinent authority, that he had already met the requirement of attending counseling (the 1995 counseling), as well as an entreaty of hardship based on his medical condition (he had suffered a spinal injury and appeared at his revocation hearing in a wheelchair).

STANDARD OF REVIEW

A district court's decision to revoke probation is discretionary and will not be disturbed unless the record demonstrates a clear abuse of discretion; the district court is required to make a conscientious judgment that the alleged violation cecurred after considering the reasons underlying the conditions of probation, the violation of those conditions, and the reasons leading to the violation. Roberts v. State, 912 P.2d 1110, 1112 (Wyo.1996); Leyba v. State, 882 P.2d 863, 865-66 (Wyo.1994).

We also acknowledge Johnson's espousal of the general concept that revoking the probation of a defendant for failure to comply with probation conditions, particularly those which may require the payment of money, when not willful, but instead resulting from factors beyond the probationer's control, would be fundamentally unfair. Kupec v. State, 835 P.2d 359, 361-62 (Wyo.1992). However, we do not find that principle applicable under the circumstances of this case.

DISCUSSION

Our discussion of Johnson's contentions need only be quite brief. Much as in Leyba, here Johnson unilaterally determined . that he could be the arbiter of which of the terms of his probation required his obedience and which of those terms might be excused by his financial condition. Johnson did not appeal the conditions of probation imposed at the time of his sentencing. Moreover, he made no effort to address his concerns to the district court and, based upon those concerns, to seek modification of the terms of his probation or relief from the directives addressed to him by Probation and Parole. Under the cireumstances of this case and in the absence of any such efforts by Johnson, there can be no abuse of discretion in the revocation of his probation. Leyba, 882 P.2d at 865. The record is clear that Johnson refused to conform to the terms of his probation, and that he did so willfully. To the extent that any issue of Johnson's ability to pay for the ordered counseling existed, his reliance on indigence was premature and speculative (he had not been refused treatment for failure to pay), it was untimely addressed to the district court, and it was insufficiently documented (and Johnson's credibility was quite low). But most important of all, as is clearly set out in the district court's oral findings, Johnson's refusal to participate in treatment was not the result of indigence but, rather, the result of his continued resistiveness to any sort of treatment associated with his crime.

The order of the district court revoking Johnson's probation and imposing sentence is affirmed.

      . W.R.Cr.P. 11(a)(1)(A) (LEXIS 1999) lists one of the alternative pleas that may be entered by a criminal defendant as a plea of nolo contendere. In some jurisdictions, such a plea is referred to as a plea of "no contest" (a loose translation of the Latin phrase "nolo contendere"). A limitation on acceptance of such a plea is this: "A defendant may plead nolo contendere only with the consent of the court. Such a plea shall be accepted by the court only after due consideration of the views of the parties and the interest of the public in the effective administration of justice." e
      A nolo contendere plea, as compared to a guilty plea, has been described thus:
      ''The principal difference between a plea of guilty and a plea of nolo contendere is that the latter may not be used against the defendant in a civil action based upon the same acts. The plea is not an admission of guilt and cannot be received as such in a subsequent proceeding against the defendant. A defendant who has pleaded nolo contendere is not estopped from denying the facts on which the criminal charge was based in a subsequent civil proceeding."
      1A Charles Alan Wright, Federal Practice and Procedure: Criminal 3d § 177, pp. 290-91 (1999). Johnson filed a motion to withdraw this plea, but the district court denied his motion, and this Court affirmed. Johnson v. State, 922 P.2d 1384 (Wyo.1996).


author: LEHMAN, Chief Justice.

text:
    JEWISH COMMUNITY ASSOCIATION OF CASPER, a Wyoming non-profit corporation, Appellant (Plaintiff), v. COMMUNITY FIRST NATIONAL BANK, Appellee (Defendant).
    No. 99-42.
    Supreme Court of Wyoming.
    June 7, 2000.

      Representing Appellant: Keith P. Tyler and Peter C. Nicolaysen, Casper, WY. Argument by Mr. Nicolaysen.
    Representing Appellee: No appearance.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.
   LEHMAN, Chief Justice.

The Jewish Community Association of Cas-per appeals the summary judgment decision of the district court that the Association's outgoing Board of Directors had the power to place Association assets into an firrevoca-ble trust outside the control of any future Board of Directors. We conclude the conveyance of assets without approval of the Association's membership rendered the trust void ab initio. We therefore reverse.

ISSUES

1. Whether the District Court erred in construing the Irrevocable Trust as an investment.

2. Whether the District Court erred in determining that the conveyance of property to the Irrevocable Trust was consistent with the language of the corporation's Bylaws.

8. Whether Wyoming law prohibits the transfer of property by a corporation to an irrevocable trust where the transfer was not in the corporation's usual course of business and done without shareholder approval.

4. Whether the District Court erred in determining that the Irrevocable Trust was properly funded.

FACTS

The parties stipulated to the essential facts in the district court. In 1988, a Casper philanthropist made a $100,000 gift to the Jewish Community Association of Casper. In 1994, the Association and Norwest Bank Wyoming, N.A. entered into a Management Agency Agreement, and the Bank began management of the $100,000 amount. Income generated from the invested funds was periodically withdrawn by the Association and used according to its bylaws, which provide that the principal of the fund "shall be utilized solely for the purpose of generating income to subsidize the Temple Beth El operating budget and perpetual care accounts."

On May 12, 1997, the Association's then Board of Directors and the Bank entered into a Trust Agreement placing the $100,000 fund into an irrevocable trust. The Board approved the terms of the Trust Agreement. Unbeknownst to the Bank, the Association's general membership never voted to approve or ratify the Trust Agreement.

The Trust purports to transfer the funds to the Trustee and gives the Trustee the option to pay the trust income to the Association or to accumulate the income for the benefit of the remainderman. The Trustee has sole discretion to establish what is net income. If the Association dissolves or ceases to be a charitable organization, the Trustee is to distribute the principal to the Wyoming Community Foundation. The Trust is irrevocable.

Six days later, on May 18, 1997, the Association elected an entirely new Board of Directors. The new Board demanded that the Bank return the funds in the Trust to the Association's agency account. After failed settlement negotiations, the Bank requested that the Association seek court clarification of the legality of the trust and the status of the funds.

On June 1, 1998, the Association filed a declaratory judgment action against the Bank. In December 1998, the district court issued summary judgment in favor of the Bank, finding that the Trust was valid and legal. This appeal timely followed.

STANDARD OF REVIEW

Summary judgment is appropriate when no genuine issue as to any material fact exists and the prevailing party is entitled to have a judgment as a matter of law. Kahrs v. Board of Trustees for Platte County Sch. Dist. No. 1, 901 P.2d 404, 406 (Wyo.1995); see also W.R.C.P. 56(c). A genuine issue of material fact exists when a disputed fact, if it were proven, would have the effect of establishing or refuting an essential element of the cause of action or defense which has been asserted by the parties. Adkins v. Lawson, 892 P.2d 128, 130 (Wyo.1995). We examine the record from the vantage point most favorable to the party who opposed the motion, and we give that party the benefit of all favorable inferences which may fairly be drawn from the record. Jack v. Enterprise Rent-A-Car Co. of Los Angeles, 899 P.2d 891, 893 (Wyo.1995). We evaluate the pro-pricty of a summary judgment by employing the same standards and by using the same materials as were employed and used by the lower court. Adkins, 892 P.2d at 130. We accord no deference to the district court's decisions on issues of law. Kahrs, 901 P.2d at 406.

The party moving for summary judgment bears the initial burden of establishing a prima facie case for a summary judgment. If the movant carries this burden, the party opposing the 'summary judgment must come forward with specific facts to demonstrate that a genuine issue of material fact does exist. Thunder Hawk By and Through Jensen v. Union Pacific Railroad Co., 844 P.2d 1045, 1047 (Wyo.1992). General allegations and conclusory statements are not sufficient. Board of County Comm'rs of County of Laramie v. Laramie County Sch. Dist. Number One, 884 P.2d 946, 956 (Wyo.1994). Our review is de novo upon the same record materials that were presented to the trial court. We afford no special deference to the ruling of the trial court on issues of law. Ahrenholtz v. Time Ins. Co., 968 P.2d 946, 949 (Wyo.1998)

DISCUSSION

The Association contends that the district court committed an error of law by characterizing the irrevocable trust as an investment rather than a conveyance. We agree.

This court has determined that "a trust is a fiduciary relationship in which one person is the holder of the title to property subject to an equitable obligation to keep or use the property for the benefit of another." Scotti's Drive In Restaurants, Inc. v. Mile High-Dart In Corp., 526 P.2d 1193, 1196 (Wyo.1974). "The elements of a valid trust include a competent settlor and trustee, intent by the settlor to create a trust, ascertainable trust res, sufficiently ascertainable beneficiary or beneficiaries, a legal purpose, and a legal term." Hilbert v. Benson, 917 P.2d 1152, 1157 (Wyo.1996) (citing McGinnis v. McGinnis, 391 P.2d 927, 933 (Wyo.1964); Dallas Dome Wyoming Oil Fields Co. v. Brooder, 55 Wyo. 109, 127-28, 97 P.2d 311, 318 (1939); State v. Underwood, 54 Wyo. 1, 25, 86 P.2d 707, 714 (1939)).

By definition, the creation of a trust must involve a conveyance of property. See Restatement, Second, Trusts § 31 (1959) (if inter vivos conveyance is not effective to transfer the property, no trust is created). For a settlor to have the power to create a trust, he must own a transferable property interest or have a power of disposition over such property interest, or he must have the means of contracting with an owner or holder of such a power. George T. Bogert, Trusts § 9 (6th ed.1987). Property which the set-tlor cannot transfer cannot be held in trust. Restatement, Second, Trusts § 79. In the context of an irrevocable inter vivos trust, this court has determined that a "person lacking capacity to make an ordinary transfer of property has no capacity to create an inter vivos trust." Hilbert v. Benson, 917 P.2d at 1156 (citing Walton v. Bank of California, Nat'l Ass'n, 218 Cal. 527, 32 Cal.Rptr. 856, 865 (1968) (citing Restatement, Second, Trusts §§ 19, 388 see comment f, p. 151) (1959)); Harrison v. City Nat'l Bank of Clinton, Towa, 210 F.Supp. 8362, 8371 (S.D.Iowa 1962). In Hilbert, this court was dealing with the concept of mental capacity, but the same logic applies to any form of legal capacity.

In this case, it is apparent that in alienating the fund, the Board acted without appropriate authority. The bylaws mandate that the fund be used solely for operational expenses, yet the trust contains no similar restriction. And the Wyoming Nonprofit Corporation Act does not allow a corporation to convey substantially all of its property without a vote of approval by the members. Wyo. Stat. Ann. § 17-19-1202 (Lexis 1999). Since the Board had no authority to transfer or convey the property without membership approval, it follows that the Board had no authority to create this trust. The Board controlled no transferable property interest and so had no power to alienate this property. Therefore, the Board exceeded its authority and acted wltra vires.

The Bank argues that the irrevocable trust was a permissible investment rather than an impermissible conveyance. The permanent and irrevocable nature of this trust refutes this argument. To constitute an investment, title and control must remain with the investor, even if the character of the property is changed. Duffield v. Rader, 288 Ill.App. 184, 6 N.E.2d 228, 231 (1987). An irrevocable trust is a trust "that cannot be terminated by the settlor onee it is created." Black's Low Dictionary at 1516 (Tth ed.1999). It is a living trust, an inter vivos trust "that is created and takes effect during the settlor's lifetime." Id. In the case at bar, legal title went to the Bank, the trustee. While it is true that equitable title remained with the settlor, this begs the question of control. Clearly, the irrevocable nature of the trust gave permanent control to the Bank. This delegation of control ultimately divides an investment from a conveyance.

We hold that where a settlor has no legal authority to convey legal title to property, putting said property into an irrevocable trust is ultra vires and the ostensible trust created thereby is consequently void ab ini-tio.

CONCLUSION

Since there are no genuine issues of material fact, our resolution of the central legal issue resolves the entire cause of action. The judgment of the district court is reversed, and the case is remanded for entry of summary judgment in favor of the appellant.

      . Pursuant to W.RA.P. 17.02 and this court's Order Allowing Substitution of Party dated September 24, 1999, Community First National Bank has replaced Norwest Bank Wyoming, N.A. as appellee and will be termed "the Bank" throughout this opinion.


text:
    PETRA ENERGY, INC., and Asher Associates, Inc., Appellants (Petitioners), v. DEPARTMENT OF REVENUE, STATE OF WYOMING, Appellee (Respondent).
    No. 99-246.
    Supreme Court of Wyoming.
    June 12, 2000.

      Representing Appellants: Nancy D. Freu-denthal of Davis & Cannon, Cheyenne, Wyoming.
    Representing Appellee: Rowena L. Hec-kert, Deputy Attorney General; Drake D. Hill, Senior Assistant Attorney General; and Jay Jerde, Assistant Attorney General.
    Before LEHMAN, C.J., and THOMAS, MACY , GOLDEN, and HILL, JJ.

      Order entered January 11, 2000, consenting to Drake D. Hill's withdrawal as counsel

       Retired June 2, 2000

   MACY, Justice.

Appellants Petra Energy, Inc. and Asher Associates, Inc. petitioned the district court for a review of the State Board of Equalization's decision concluding that Appellee Department of Revenue had a valid lien against the appellants' oil and gas interests in Niob-rara County. The district court certified the case to this Court pursuant to W.R.A.P. 12.09(b).

We reverse.

ISSUE

The appellants present a single issue for our review:

Does a lien for severance tax and aceru-ing interest attach to and follow mineral leases and future production "by operation of law," without any steps necessary to properly perfect the lien for notice to bona fide purchasers?

FACTS

Common Energy, Inc. owned mineral interests in an oil and gas well located in Niobrara County. It failed to properly pay its severance taxes for the 1991 tax year. In January 1993, the Department of Revenue filed a Certificate of Lien with the Niobrara County Clerk, claiming a lien in the amount of $56,387 for delinquent severance taxes, penalty, and interest against Common Energy's real and personal property. The Department of Revenue did not, however, in-elude a legal description of the property in the Certificate of Lien, and, consequently, the county clerk did not record the lien against the tract of land in which the well was located.

Petra Energy purchased Common Energy's interest in the well in February 1994. Asher Associates operated the well for Petra Energy. Prior to purchasing the well, Petra Energy performed title examinations to determine whether there were outstanding liens or other encumbrances against the real property. The Department of Revenue's lien was not discovered during the title examinations.

Petra Energy subsequently learned of the lien, and it asked the Department of Revenue to release the lien against its property. The Department of Revenue refused, and the appellants appealed to the State Board of Equalization. The State Board of Equalization concluded that the Department of Revenue held a valid lien against Petra Energy's Niobrara County property for the unpaid severance taxes and the accrued interest. It determined, however, that the Department of Revenue was not authorized to impose a penalty against the appellants.

The appellants appealed to the district court, and that court certified the case to the Wyoming Supreme Court pursuant to W.R.A.P. 12.09(b).

STANDARD OF REVIEW

When cases are certified to the Wyoming Supreme Court pursuant to W.R.A.P. 12.09(b), we apply the appellate standards which are applicable to the court of the first instance. Petroleum Inc. v. State ex rel. State Board of Equalization, 988 P.2d 1287, 1289 (Wyo.1999); Union Telephone Company, Inc. v. Wyoming Public Service Commission, 907 P.2d 340, 341-42 (Wyo.1995). Wyo. Stat. Ann. § 16-3-114(c) (LEXIS 1999) governs judicial review of administrative decisions. WRAP. 12.09(a); Everheart v. S & L Industrial, 957 P.2d 847, 851 (Wyo.1998).

The issue presented in this case requires us to interpret various statutes. Statutory interpretation is a question of law. Petroleum Inc., 988 P.2d at 1289; Newton v. State ex rel. Wyoming Workers' Compensation Division, 922 P.2d 8683, 864 (Wyo.1996). This Court affirms an agency's conclusions of law when they are in accordance with the law. Corman v. State ex rel. Wyoming Workers' Compensation Division, 909 P.2d 966, 970 (Wyo.1996). When an agency has not invoked and properly applied the correct rule of law, we correct the agency's errors. Weaver v. Cost Cutters, 958 P.2d 851, 855 (Wyo.1998); Gneiting v. State ex rel. Wyoming Workers' Compensation Division, 897 P.2d 1306, 1808 (Wyo0.1995).

DISCUSSION

In their first argument, the appellants assert that the Department of Revenue did not have authority under Wyo. Stat. Ann. § 39-6-307(e) (Michie 1997) (repealed 1998) to claim a lien against their interests in the Niobrara County well. The Department of Revenue argues that it was authorized to claim the lien. We agree with the appellants.

Before its repeal in 1998, § 39-6-807(e) provided:

(e) Any person extracting valuable products subject to this article and any person owning an interest in the valuable products to the extent of their interest ownership are liable for the payment of the taxes imposed by this article together with any penalties and interest. The tax is a lien upon the interest of any owner and the interest of any person extracting any valuable deposit from and after the time they are extracted until the taxes are paid. The tax lien shall have preference over all liens except any valid mortgage or other liens of record filed or recorded prior to the date the tax became due.

We have frequently stated our standard for interpreting statutes. This Court decides first whether the statute is clear or ambiguous. Wyoming Department of Transportation v. Haglund, 982 P.2d 699, TOL (Wyo.1999); Lyles v. State ex rel. Division of Workers' Compensation, 957 P.2d 843, 845 (Wyo.1998). This Court makes that determination as a matter of law. Allied-Signal, Inc. v. Wyoming State Board of Equalization, 818 P.2d 214, 220 (Wyo.1991); see also Parker Land and Cattle Company v. Wyoming Game and Fish Commission, 845 P.2d 1040, 1048 (Wyo.1998). If we determine that a statute is clear and unambiguous, we give effect to the plain language of the statute. Haglund, 982 P.2d at 701; Lyles, 957 P.2d at 846. To effectuate the unambiguous language of a statute,

[wle begin by making an " "inquiry respecting the ordinary and obvious meaning of the words employed according to their arrangement and connection'" Parker Land and Cattle Company v. Wyoming Game and Fish Commission, 845 P.2d 1040, 1042 (Wyo.1993) (quoting Rasmussen v. Baker, 7 Wyo. 117, 183, 50 P. 819, 828 (1897)). We construe the statute as a whole, giving effect to every word, clause, and sentence, and we construe together all parts of the statute in pari materia.

State Department of Revenue and Taxation v. Pacificorp, 872 P.2d 1163, 1166 (Wyo. 1994). If the statute is ambiguous, we resort to general principles of statutory construction to determine the legislature's intent. Parker Land and Cattle Company, 845 P.2d at 1044.

Although both sides assert that § 39-6-307(e)'s language was clear and unambiguous, they present differing opinions as to what its meaning was. The appellants claim that the lien authorized by the statute applied to the interests in the extracted minerals that gave rise to the severance tax liability. The Department of Revenue argues that the lien created by § 39-6-807(e) applied to all the interests in the mineral estate and included interests in future production.

This Court discussed § 39-6-307(e) and the nature of severance tax liability in BHP Petroleum Company, Inc. v. State, 784 P.2d 621, 625-26 (Wyo.1989). The severance tax is a tax upon the present and continuing privilege of extracting minerals in this state. BHP Petroleum Company, Inc., 784 P.2d at 626; Belco Petroleum Corporation v. State Board of Equalization, 587 P.2d 204, 210 (Wyo.1978). Severance tax liability arises upon removal of the mineral from the deposit. BHP Petroleum Company, Inc., 784 P.2d at 626. The "lien liability follows the product from which production the taxable incident and liability arose." Id. Severance tax is a lien on the interests of the owners of any part of the produced mineral until the tax is paid. 784 P.2d at 627. The lessons of the BHP Petroleum Company, Inc. case, therefore, were: (1) the triggering factor for imposition of severance tax liability was the removal of the mineral from the deposit; and (2) the lien created by § 39-6-307(e) applied to the interests in the extracted minerals.

We revisited the BHP Petroleum Company, Inc. decision and our earlier interpretation of § 39-6-807(e) in Preferred Energy Properties v. Wyoming State Board of Equalization, 890 P2d 1110 (Wyo.1995). This Court stated in that case: "The statute unambiguously imposes liability for the tax on two groups: any person who is extracting the valuable products and any person who owns any interest in the valuable products." Preferred Energy Properties, 890 P.2d at 1112. The tax remains as a lien upon the interests in the produced minerals until it is paid. See id.

The Department of Revenue maintains that, in $ 39-6-307(e), the legislature intended to impose a lien upon any interest in any part of the mineral estate from the time the mineral was extracted until the tax was paid. The department argues that, if the legislature had intended for only the interests in the extracted products to be subject to the lien created by § 39-6-307(e), it would not have also enacted Wyo. Stat. Ann. § 39-6-804(k) (Michie 1997) (repealed 1998). Before its repeal in 1998, that statutory provision provided: "The tax is a lien paramount and superior to any other lien exeept federal liens, on the gross product, or sale proceeds therefrom, of the mine or mining claim from and after the time the minerals are extracted until the taxes are paid." Section 89-6-804(k). The Department of Revenue continues its argument by stating that, if we were to adopt the interpretation of the statute championed by the appellants, § 39-6-304(k) would be rendered superfluous.

We believe that the legislature intended for § 39-6-307(e) and § 89-6-8304(k) to work together to establish lability for severance taxes and the means for securing payment of the taxes. Section 89-6-807(e) delineated the persons who were responsible for paying the severance taxes and the interests that were subject to a lien for nonpayment of the taxes, while § 39-6-304(k) expressly established a severance tax lien against the gross product and the proceeds of the sale of the product. We do not believe, therefore, that, by construing $ 89-6-807(e) to apply to only the interests in the extracted products rather than to all interests in the mineral estate, we are rendering either statutory provision superfluous. Instead, our interpretation makes the two provisions compatible.

Taking into consideration this Court's rulings in BHP Petroleum Company, Inc. and Preferred Energy Properties and the plain language of § 39-6-307(e), we conclude that the lien created by § 39-6-807(e) applied to only the interests in the extracted minerals that gave rise to the severance tax liability. It did not apply to all interests in the mineral estate and to future production from the same deposits.

The appellants' next argument pertains to perfection of a lien against the Niob-rara County property. They maintain that, if the Department of Revenue wanted its lien to attach to the mining claim or real property and to follow the property upon conveyance, it was required to properly record the lien. The Department of Revenue argues that a lien arose against all interests in the mineral estate the moment the minerals, which gave rise to the severance tax liability, were extracted and that the lien was automatically perfected without being recorded.

We have determined that the lien allowed by § 39-6-307(e) applied to only the interests in the extracted minerals. The appellants did not produce or own any interest in the minerals that were subject to the severance tax liability in this case. We do not, therefore, need to determine whether the Department of Revenue was required to perfect its § 39-6-807(e) lien by properly recording it in the Niobrara County Clerk's office.

The Department of Revenue could have, of course, encumbered Common Energy's real property pursuant to the general lien statutes; See, eg., Wyo. Stat. Ann. §§ 29-1-101 & 29-1-801 (LEXIS 1999); Wyoming Department of Revenue and Taxation-Excise Tax Division v. First Wyoming Bank, N.A.-Kemmerer, 718 P.2d 31, 34-85 (Wyo.1986). In order to establish an effective lien under those statutes, however, the lienholder is required to follow the appropriate procedures in imposing and perfecting its lien. Wyoming Department of Revenue and Taxation-Excise Tax Division, 718 P.2d at 34-35. In general, liens must be properly recorded in order to establish their priority and to encumber the property upon conveyance. Id.

In this case, the Department of Revenue claimed a Hen against "all real and personal property as indicated on the exhibits attached hereto owned by ... COMMON ENERGY, INC." It did not, however, attach the exhibits containing the legal descriptions of the property owned by Common Energy. Without the legal descriptions, the county clerk could not properly record the lien against the real property that was subsequently transferred to Petra Energy. The Department of Revenue's lien did not, therefore, encumber the real property or mining claim which Common Energy transferred to Petra Energy.

Reversed.


text:
    Carolyn SUVAL, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 99-124.
    Supreme Court of Wyoming.
    June 16, 2000.

      Representing Appellant: Sylvia Lee Hackl, State Public Defender; and Donna D. Domonkos, Appellate Counsel.
    Representing Appellee: Gay Woodhouse, Attorney General; Paul S. Rehurek, Deputy Attorney General; and D. Michael Pauling, Senior Assistant Attorney General.
    Before LEHMAN, C.J., and THOMAS, MACY, GOLDEN, and HILL, JJ.

       Retired June 2, 2000.

   LEHMAN, Chief Justice.

Carolyn Suval (appellant) contends that the sentence imposed for her conviction on one count of theft of services is disproportionate to the gravity of the crime. We disagree and affirm.

Appellant raises a single issue for consideration:

Whether the district court abused its discretion in sentencing [appellant] to five to seven years for the crime of theft of services in [sic] pursuant to W.S. § 6-3-408(a)).

The State rephrases the issue slightly:

Whether the district court properly exercised its discretion in sentencing Appellant.

FACTS

In 1998, appellant and her friend Corey Mack took their vehicle into Automatic Transmission Specialists (ATS) for repairs. After the vehicle had been repaired, appellant entered ATS closed lot and absconded with the vehicle without having paid the $811.42 for services rendered.

Appellant was subsequently charged with felony theft of ATS services. After her arrest, appellant posted bond. One of the conditions of her release was a prohibition against leaving Laramie County without the prior approval of the court. Appellant eventually reached a plea agreement wherein the prosecutor agreed to recommend probation, conditioned on a presentence investigation report (PST).

Appellant's sentencing was scheduled for October 9, but she did not appear. In blatant violation of the terms of her bond, appellant had left Laramie County for Sweetwater County, Wyoming without obtaining the pri- or approval of the court. Even more damaging to appellant, while in Green River appellant and Mack committed a felony, for which both were subsequently convicted.

Upon resolution of the proceedings in Sweetwater County, appellant was returned to Laramie County for sentencing on the subject offense. Meanwhile, appellant's PSI had revealed a significant criminal history, including outstanding warrants from no less than three other states. Based on this history and appellant's escapades while out on bond, the prosecutor recommended a term of incarceration. The district court judge apparently agreed, and a sentence of five to seven years, to run consecutively to appellant's sentence for the Sweetwater County incident, was imposed. Appellant now appeals her sentence.

STANDARD OF REVIEW

When a criminal sentence is within the parameters set by the legislature, as it is here, that sentence will not be overturned on appeal absent a clear abuse of discretion. Dodge v. State, 951 P.2d 383, 385 (Wyo.1997). An abuse of discretion does not occur unless a court has acted in a manner which exceeds the bounds of reason under the cireum-stances. Vaughn v. State, 962 P.2d 149, 152 (Wyo.1998). The ultimate issue is whether or not the court could have reasonably concluded as it did. Id. In evaluating the reasonableness of a criminal sentence, we give consideration to the crime and its cireum-stances along with the character of the defendant. Dodge, 951 P.2d at 385.

The United States Supreme Court set forth a test for proportionality analysis of criminal sentences in Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 3011, 77 L.Ed.2d 637 (1938):

[A] court's proportionality analysis under the Eighth Amendment should be guided by objective criteria, including (1) the gravity of the offense and the harshness of the penalty; (i) the sentences imposed on other criminals in the same jurisdiction; and (ii) the sentences imposed for commission of the same crime in other jurisdictions.

Dodge, 951 P.2d at 385. We have stated, however, that this court will not engage in a lengthy analysis under all three of the Solem criteria except in those instances "where the mode of punishment is unusual or where the relative length of sentence to imprisonment is extreme when compared to the gravity of the offense." Dodge, 951 P.2d at 385; Oakley v. State, 715 P.2d 1374, 1879 (Wyo.1986).

DISCUSSION

Appellant complains that the trial court failed to take into account any mitigating factors. The mitigating factors appellant alleges were ignored in sentencing were: her crime was nonviolent; her stated desire to resume her nursing career and reunite with her estranged husband and child; her willingness to avoid the nefarious influences of her cohort in crime, Mr. Mack; and, the judge in the Sweetwater County case had recommended that her sentence in that case run concurrently to this one. Appellant also asserts that her sentence is one of those "rare case[s] in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross dis-proportionality." Dodge, 951 P.2d at 385 (quoting Harmelin v. Michigan, 501 U.S. 957, 1005, 111 S.Ct. 2680, 2707, 115 L.Ed.2d 836 (1991)). Appellant bases her contention of disproportionality on the nonviolent nature of her crime in comparison with her sentence of five to seven years running consecutively with the other sentence arising from the Sweetwater County incident.

Our review of the sentencing record leads us to conclude that the trial court did, in fact, take all of the appropriate factors into consideration:

[Trial Judge]: All right. Thank you, counsel. Certainly the nature of the underlying offense is one of the principal considerations in sentencing. One always looks to the principle of proportionality. That is, there must be some proportionality between the offense and the sentence. Nevertheless, always one's prior record is taken heavily into consideration.
I would agree with you, counsel, that ordinarily without a criminal history this offense would not warrant incarceration, it would probably be a probation case. But [appellant] is far from being here without a significant criminal history, and now we have the conviction in Sweetwater County on top of it, [appellant's] formidable record that is reflected in the pre-sentence investigation report. [Appellant] just seemed to be willful in her determination to keep committing eriminal offenses. It is significant that she was outside of Laramie County in Sweetwater County in violation of her conditions of release when this occurred. That again shows a willfulness and a disregard for the order of the Court and the process. She just does not seem to take these things very seriously. And, I guess, looking at all of the past instances of which she has received extremely lenient treatment, she might have some reason to not take it terribly serious.
But this is just not the kind of a record that would warrant a sentence as light as one to two [years]. It may not rise quite to the level of eight to ten [years] either. But the judgment and sentence of the Court * * * is no less than five years nor more than seven to the Women's Penitentiary at Lusk consecutive as to any other sentence she may be serving.

It is quite clear from the foregoing that the trial judge considered the gravity of appellant's offense. It is also clear that the judge believed appellant's criminal history and behavior to outweigh any considerations of lenity. The record supports the judge's ruling. Appellant's criminal history demonstrates a progressive increase in the occurrence and severity of her crimes beginning with misdemeanor prostitution and disorderly conduct offenses to felony theft to the violent robbery in Sweetwater County. Furthermore, appellant has continually flaunted the authority of the courts and the law as evidenced by her outstanding warrants from several other states as well as by her actions in this case where she violated the terms of her release by leaving the county. Given her history, it was hardly unreasonable for the trial judge to discount appellant's after-the-fact, self-serving statements about self-rehabilitation. The trial court, appropriately we think under these cireumstances, rated appellant's eredi-bility at nil. We will not second guess such an assessment, especially one where the record supplies ample support for such a conclusion.

For the same reasons noted above, we do not find this case to be one of those rare "case[s] in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross dispro-portionality." To the contrary, the record shows that appellant's sentence, which was entirely within the statutory limits, is eminently reasonable and proportionate under these cireumstances. -

CONCLUSION

The sentence imposed on appellant is reasonable under the cirenmstances and proportionate thereto.

Affirmed.

      . Wyo. Stat. Ann. § 6-3-408(a)(i) (Lexis 1999) provides:
      (a) A person who, with intent to defraud, obtains services which he knows are available only for compensation, without paying for the services is guilty of: (i) A felony punishable by imprisonment for not more than ten (10) years, a fine of not more than ten thousand dollars ($10,000.00), or both, if the value of the services is five hundred dollars ($500.00) or more[.]