author: GOLDEN, Justice.

text:
    2004 WY 28
    John K. LOPEZ, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    No. 01-110.
    Supreme Court of Wyoming.
    March 24, 2004.

      Representing Appellant: Thomas Sedar, Casper, Wyoming; Kenneth Koski, State Public Defender; Donna D. Domonkos, Appellate Counsel; Marion Yoder, Senior Assistant Public Defender, Cheyenne, Wyoming. Argument by Ms. Yoder.
    Representing Appellee: Hoke MacMillan, Wyoming Attorney General; Paul S. Rehu-rek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General, Cheyenne, Wyoming. Argument by Mr. Pauling.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.

       Order granting Motion to Dismiss Appellate Counsel filed February 26, 2002.

   GOLDEN, Justice.

[¶ 1] In this case, we must primarily decide whether the State proved that Appellant John Kenneth Lopez (Lopez) committed second degree murder by a single, open hand slap to the side of the victim’s head. The victim walked away after the slap, but, hours later, was found unconscious, and he subsequently died. Following a jury trial, Lopez was convicted of second degree murder and sentenced to twenty to forty years. On appeal, retained trial counsel submitted issues alleging various trial errors and constitutional violations, one of which alleges that his own performance regarding jury instructions had been ineffective and deprived Lopez of his constitutional right to effective assistance of counsel. Retained counsel later withdrew, and the Public Defender was appointed. That appellate counsel submitted a supplemental brief raising other ineffectiveness-of-counsel issues primarily concerning trial defense counsel’s failure to secure a defense expert to challenge the coroner’s opinion of the cause of death. This Court remanded for an evidentiary hearing on this issue. At that hearing, a defense expert testified that the coroner had incorrectly determined the cause of death; however, the trial court ruled that counsel had been effective, and a second supplemental brief was submitted on appeal to challenge this decision.

[¶ 2] As explained below, this Court holds that the State did not prove beyond a reasonable doubt that Lopez killed maliciously, his conviction for second degree murder is reversed, and retrial on that charge is barred. This Court also holds that defense counsel provided ineffective assistance of counsel to Lopez when defense counsel failed to have expert testimony on the issue of causation at trial. This case is therefore remanded to the district court for a new trial on voluntary manslaughter. Further, the State is ordered to provide all tissue slides if so requested by the defense or, alternatively, the defense may choose instead to rely upon the present version of its defense expert’s report and testimony which shall be admissible at a new trial.

ISSUES

[¶ 3] From his three briefings, Lopez presents the following statement of the issues:

1. Did the court’s refusal to give defendant’s requested self defense jury instruction on actual danger WPJIC 8.11 (1978) constitute reversible error?
2. [Was it reversible error for the court] to give instruction # 14 on duty to retreat?
3. Did the court’s failure to give a jury instruction defining the term “deadly force” under Wyoming law constitute reversible error?
4. Did the court's failure to give the standard self defense instruction create reversible error?
5. Was the counsel for the defendant ineffective?
6. Did the prosecutor misstate the law in closing [argument] when he argued that to convict the defendant the jury must only find that the defendant struck [the victim] in anger?
7. Did the prosecutor’s statements during closing [argument] when considered in their entirety constitute plain error?
8. Was there sufficient evidence to convict the defendant?
9. Were the defendant’s rights to due process and a fair trial prejudiced by the coroner’s intentional destruction of [the victim’s] body?
10. Whether appellant’s uneounseled statements to police should have been suppressed?
11. Whether counsel’s errors, and in particular his failure to present conflicting expert testimony, rendered his assistance ineffective?
12. "Whether each element of the crime charged was properly established?
13. "Whether trial counsel’s assistance was rendered ineffective in light of inherent conflicts of interest obviating the need to prove prejudice or, in the alternative, whether counsel’s errors produced a trial with an unreliable result and thus prejudiced his client?

The State rephrases the issues as:

I. Did the district court err in instructing the jury as it did, and was defense counsel ineffective in not requesting or failing to object to certain instructions?
II. Was the prosecutor guilty of misconduct in his closing argument?
III. Was the evidence sufficient to support appellant’s conviction?
IV. Did the coroner’s release of the victim’s body deprive appellant of his right to a fair trial?
V. Did the district court properly deny appellant’s motion to dismiss?
VI. Did trial counsel’s failure to procure expert witness testimony constitute ineffective assistance?

FACTS

[¶ 4] After getting off work, Lopez began drinking heavily at the Albuquerque Apartments in Casper with a number of friends sometime after 3:00 a.m. on the morning of December 18, 1999. Lopez and the victim, Robert Herman, were good friends, and Lopez was aware that Herman suffered from chronic alcoholism. According to defense theory, Lopez became upset that Herman was drinking whiskey and told him to stop drinking before he killed himself. Herman pushed Lopez, and Lopez slapped Herman on his head with an open hand and pushed him back down onto a couch. Which hand Lopez used to strike Herman was hotly disputed at trial, and witnesses’ testimony about which hand was used was conflicting.

[¶ 5] The slap was inflicted about 11:00 a.m. on December 18, 1999. After receiving the slap, Herman went to the post office with a friend, but complained of a headache and returned to his apartment at about 12:30 p.m. Herman’s girlfriend and at least one friend entered the apartment through an open backdoor during the afternoon. Late that evening, Herman had locked all doors, and his friends tried to rouse him to answer either the telephone or the door but were unable to do so. By 9:00 p.m., the friends were sufficiently worried to break into the apartment. They found Herman, face down on the floor by his bed, unconscious, and bleeding from the nose and mouth.

[¶ 6] Herman was rushed to the hospital but died the next evening, December 19, at about 9:30 p.m., almost thirty-four hours after Lopez struck him. After emergency room medical staff observed trauma to the left side of Herman’s head, the police were notified and began an investigation about midnight on the 19th. Police investigators learned of an altercation, and an eyewitness testified that Lopez had struck Herman once with his open left hand on the right side of Herman’s head earlier that morning. Another witness testified that he heard a smacking sound and then saw Herman falling back onto the couch and Lopez had his left hand up. The witness assumed that Lopez had “open-handed” Herman to the “right side of the head.” Police encountered Lopez at Herman’s apartment complex, and Lopez admitted striking Herman during an argument. Police then asked Lopez to go to the police station for an interview. During a recorded portion of the police interview, Lopez admitted to delivering a stiff arm to Herman’s face. Police officer Malone testified that, during an unrecorded portion of the police interview, Lopez admitted to hitting Herman once on the right side of his face; however, Lopez demonstrated how he hit Herman and, during that demonstration, Lopez indicated that he had struck Herman once with his right stiff arm to the left side of Herman’s face. Lopez’ motion to suppress his statements to police was denied.

[¶ 7] The same night that police were receiving statements from Lopez and witnesses that Lopez had struck Herman hours earlier, evidence technicians notified police investigators that Herman had marks on his body that appeared to be boot marks; however, police uncovered no evidence that Lopez had kicked Herman. Dr. Thorpen, the coroner, prepared an autopsy report stating that Herman died from “assaultive trauma to head” that was caused after “subject struck on head by hand of known assailant.” The autopsy was conducted on December 21, 1999, two days after death and after police had interviewed Lopez. Dr. Thorpen testified that Lopez was the “known assailant” listed as the cause of death and also testified that his conclusions as to how the death had occurred were based on police reports. Lopez was charged with second degree murder on January 3, 2000, and arrested the next day.

[¶ 8] At trial, Dr. Thorpen testified as the State’s last witness. He testified that the cause of death was a blood clot on the right side of the brain that resulted from a blow administered to the left temple. Dr. Thor-pen stated that Herman had numerous health problems that made him susceptible to death by the slap and had previously been treated for dilated veins caused by chronic alcoholism and a previous head injury. Dr. Thorpen conceded that Herman was found on the floor, had a blood alcohol content of .215, and had veins so fragile they could easily rupture from sudden movement. However, Dr. Thorpen would not concede that it was possible that a fall had caused Herman’s fatal injury because Herman had been found on a padded carpeted surface.

[¶ 9] No evidence at trial indicated that Lopez was aware that Herman possessed these physical weaknesses. Lopez contended that he had pushed Herman in self-defense and the slap was not the fatal blow. Lopez also contended that, between the time that he struck Herman and the death hours later, the fatal blow was caused by an intruder/robber who kicked him with boots. Lopez contended that some of Herman’s possessions were missing. In both opening statement and closing argument, the State conceded that Lopez had no intent to kill Herman by slapping him but, by striking the single blow in anger, had committed second degree murder. The verdict form included a charge of voluntary manslaughter.

[¶ 10] Defense counsel had requested that the public defender pay for an expert but, before trial, had withdrawn the motion to further research the law, did not renew the motion, and, ultimately, no defense expert testified. Lopez was convicted of second degree murder, his motion for new trial was denied, and his appeal followed. After the public defender was substituted for retained counsel on appeal, it was contended that trial defense counsel had been ineffective for failing to present expert testimony on the issue of causation. This Court granted a partial remand for an evidentiary hearing on the issue of ineffective assistance of trial counsel.

[¶ 11] At that hearing, Lopez presented an expert witness, Dr. Larkin, a forensic pathologist from North Carolina. Dr. Larkin testified that because Lopez’ slap had not caused immediate bruising and swelling, it was not the fatal blow. Those injuries were apparent later that evening, and it was Dr. Larkin’s opinion that the injuries that Dr. Thorpen concluded were caused by a slap were actually caused by a fall.

[¶ 12] Before the evidentiary hearing, the State had objected to Dr. Larkin’s testimony primarily because he had not reviewed the microscopic tissue slides from the autopsy. Because of time and financial constraints of the public defender and the poor health of Dr. Larkin, the defense had arranged for Dr. Larkin to testify by telephone. The State also objected to receiving Dr. Larkin’s testimony by telephone; however, the district court allowed it. Dr. Thorpen, the coroner who had testified at trial, also testified at the evidentiary hearing, and he, too, contended that Dr. Larkin’s conclusions were suspect because Dr. Larkin had not reviewed the microscopic slides from the autopsy. Upon inquiry, the record shows that Dr. Thorpen and the district attorney had decided that Dr. Thorpen would not provide those slides to Dr. Larkin for his review and, despite Dr. Larkin’s several requests for the tissue slides, he was not provided with them.

[¶ 13] Upon cross-examination, Dr. Lar-kin stated that examination of the microscopic tissue slides was very important to rendering an opinion. Because Dr. Larkin had been denied access to those slides, his opinion was a “provisional or a limited” opinion. Dr. Larkin, however, believed that the slides would confirm that Herman’s fatal head injury was caused by a fall.

[¶ 14] At the conclusion of the evidentiary hearing, the trial court ruled that Lopez had failed in his burden of proof and had not been denied effective assistance of counsel. Our discussion of the evidentiary hearing sets out further details. Briefing on the ineffectiveness decision was then filed, and this appeal resumed.

DISCUSSION

Standard of Review

[¶ 15] The trial court instructed the jury that “[defendant was justified in using deadly force to repel the danger only if he retreated as far as he safely could do before using deadly force.” Lopez challenges use of the term “deadly force,” contending that in response to Herman’s aggression against him, he pushed Herman back onto a couch with an open hand and his hand hit the right side of Herman’s face. Lopez concedes that witnesses’ testimony showed that he struck Herman with a single open handed slap but argues he left no noticeable injury on Herman. The State’s brief states that the evidence shows that Lopez hit Herman once with an open hand slap and angrily shoved him back onto the couch. The evidence necessarily raises issues concerning whether deadly force was used and whether the State met its burden of proving every element of second degree murder beyond a reasonable doubt. We, therefore, begin our analysis with the sufficiency of the evidence issues.

[¶ 16] The standard of review for sufficiency of the evidence issues is well established. “We assess whether all the evidence presented is adequate to form the basis for an inference of guilt beyond a reasonable doubt to be drawn by a finder of fact when that evidence is viewed in the light most favorable to the State.” Estrada-Sanchez v. State, 2003 WY 45, ¶ 6, 66 P.3d 703, ¶ 6 (Wyo.2003).

We leave out of consideration the evidence presented by the unsuccessful party which conflicts with the successful party’s evidence and afford every favorable inference to the successful party’s evidence which may be reasonably and fairly drawn from that evidence. Even though it is possible to draw other inferences from the evidence presented, the jury has the responsibility to resolve conflicts in the evidence. We will not substitute our judgment for that of the jury when we are applying this rule; our only duty is to determine whether a quorum of reasonable and rational individuals would, or even could, have come to the same result as the jury actually did.

Id.

Sufficiency of the Evidence

[¶ 17] Lopez disputes that the State presented sufficient evidence on these elements of second degree murder: 1) that he killed purposely and maliciously and 2) that the single open hand slap caused Herman’s death. The elements of second degree murder are:

Whoever purposely and maliciously, but without premeditation, kills any human being is guilty of murder in the second degree[.]

Wyo. Stat. Ann. § 6-2-104 (LexisNexis 2003).

[¶ 18] When used as an element of second degree murder, “purposely” means intentionally or deliberately. State v. Keffer, 860 P.2d 1118, 1138 (Wyo.1993). “As so used in the second degree murder statute, ‘purposely’ is a general-intent element that ‘describes the act to be committed and not an intention to produce a desired, specific result.’ ” Id. (quoting Crozier v. State, 723 P.2d 42, 54 (Wyo.1986)). Because second degree murder is a general-intent crime, the evidence to support a conviction for second degree murder must demonstrate “the defendant acted with deliberation, but it does not require evidence that he deliberately killed.” Keffer, 860 P.2d at 1138 (quoting Ramos v. State, 806 P.2d 822, 830 (Wyo.1991)). See also Young v. State, 849 P.2d 754, 761-62 (Wyo.1993). “It follows that ‘purposely’ distinguishes the act from one committed ‘carelessly, inadvertently, accidentally, negligently, heedlessly or thoughtlessly.’ ” Keffer, 860 P.2d at 1138 (quoting Dean v. State, 668 P.2d 639, 642 (Wyo.1983) (quoting Matter of Adoption of CCT, 640 P.2d 73, 76 (Wyo.1982))).

[¶ 19] Second degree murder requires proof of express, implied, constructive or legal malice. Keffer, 860 P.2d at 1138-39. The State must prove circumstances from which legal malice might be justly inferred. Nunez v. State, 383 P.2d 726, 729 (Wyo.1963). This form of homicide is a killing that cannot be justified under the law of self-defense, and requires murderous mens rea. See Keats v. State, 2003 WY 19, ¶ 28, 64 P.3d 104, ¶ 28 (Wyo.2003) (“maliciously” gives a statute “a mens rea element, without which it would reach innocent conduct”). The required state of mind for a murder conviction is that degree of mental disturbance or aberration of the mind that is wicked, evil and of unlawful purpose, or of that willful disregard of the rights of others which is implied in the term malice. Keffer, 860 P.2d at 1139. Where malice is absent, the crime is manslaughter even if the act that caused the death was done purposely. Id.

[¶ 20] The State contends that sufficient evidence was presented when witnesses testified that Lopez had intentionally struck Herman. This evidence satisfies the element of purposely; however, for the element of maliciously, we have only the State’s bald assertion that Lopez acted with a “wicked” mind when he struck Lopez. In reviewing sufficiency of the evidence claims, we look at all of the evidence in the light most favorable to the prevailing party. Es-tradar-Sanchez, ¶ 6. Our review of the record confirms that Lopez struck Herman once in sudden anger. Lopez claims that his sudden anger was caused by his concern that his friend would be harmed by drinking whiskey. That irony aside, precedent dictates that the evidence of Lopez’ actions and motivations must be reviewed to determine his state of mind. Eagan v. State, 58 Wyo. 167, 201-10, 128 P.2d 215, 227-30 (Wyo.1942).

[¶ 21] In the past, we have upheld murder convictions where death was not caused by a weapon but only with fists. Dryden v. State, 535 P.2d 483, 495-96 (Wyo.1975); see also Coca v. State, 423 P.2d 382, 387-88 (Wyo.1967). Those cases are distinguishable from this case because, in those cases, numerous vicious blows by a fist were inflicted. Id. Here, we have one open hand slap, not a blow or blows by a fist. In Wharton’s Criminal Law, the statement is made that malice is not to be inferred by a blow with the hand. 2 Charles E. Torcía, Wharton’s Criminal Law § 141, at 252, 255 (15th ed.1994). La-Fave makes the general statement that it would be ridiculous to find murder because of a slap. 2 Wayne R. LaFave, Substantive Criminal Law § 14.2(b), at 432 (2d ed.2003). In an overview of the general state of law, it has been said:

Since death is not the natural or probable result of a blow with the hand, it seems that no intent to kill will, under ordinary circumstances, be inferred, although death results from an assault thus committed.

M.C. Dransfield, Annotation, Inference of Malice or Intent to Kill Where Killing is by Blow Without Weapon, 22 A.L.R.2d 854, at 857 (1952). Death caused by the repeated use of fists or feet or boots does present evidence of malice. “[I]n appropriate cases, generally involving big men attacking small, frail men or women or children, and generally involving the repeated use of hands and feet, an inference of an intent to kill may properly be drawn.” LaFave, supra, § 14.2(b), at 432 (emphasis added).

[¶ 22] Both Colorado and Utah have recognized that there is a line of authority that since death is not the natural or probable result of a blow with the hand, no malice will ordinarily be inferred although death results from the assault. State v. Wardle, 564 P.2d 764, 765-66 (Utah 1977); Pine v. People, 168 Colo. 290, 455 P.2d 868, 869 (1969). These courts reason that the malice necessary to constitute a murder is presumed where the act is deliberate and is likely to be attended with dangerous or fatal consequences. Death or great bodily harm must be the reasonable or probable consequence of the act to constitute murder. The striking of a blow with the fist on the side of the face or head is not likely to be attended with dangerous or fatal consequences, and no inference of malice is warranted by such proof. Id. Both states, however, have recognized that an assault with hands or feet may support a conviction for second degree murder where the circumstances show that death resulted from a violent or brutal beating or blows inflicted to victims susceptible because of age or known infirmity. Id. Based on this precedent concerning fists, we believe it reasonable to conclude that these courts would not permit an inference of malice because a slap was delivered by an open hand.

[¶ 23] We observe then that, generally, evidence that death caused by an open hand slap without more is insufficient evidence of malice and, therefore, is not murder. We must then review the record to see what other evidence exists from which we might infer malice. We first note that the record does not show any evidence that Lopez knew that Herman’s condition was so frail that Lopez could cause Herman to die with just one slap to his head. The evidence shows that, in addition to the one slap, Lopez shoved Herman down onto a couch. We do not see where a harmless shove could reasonably be seen as the equivalent of repeated blows. The evidence also shows that Lopez became irrationally angry upon seeing that Herman was drinking; however, we have previously held that sudden anger that arises upon provocation is the provocation or lack of malice which makes a homicide manslaughter instead of murder. Jahnke v. State, 692 P.2d 911, 919 (Wyo.1984).

[¶ 24] Having reviewed the evidence, we see that Lopez delivered one open hand slap and a man later died. Lopez acted purposely; however, the only evidence of malice is the single open hand slap, and we agree with long standing precedent that, without more, malice cannot be inferred from this minimal act. We hold that the evidence is insufficient as a matter of law that Lopez acted maliciously. Insufficient evidence to support an element of the charged offense amounts to a judgment of acquittal on that charge, and retrial is barred. Sarr v. State, 2004 WY 20, ¶ 7, 85 P.3d 439.

[¶ 25] In Eagan v. State, 58 Wyo. 167, 128 P.2d 215 (Wyo.1942), Justice Blume examined evidence of malice and made a similar conclusion that the evidence was lacking. In the conclusion, he expressed well the sentiments we feel at coming to our conclusion, and we believe it bears repeating:

After a most painstaking examination of the record before us, and consideration of the questions involved herein, we have, regrettable as the terrible tragedy was, and hesitant as we are to interfere with the verdict of the jury, come to the conclusion under the rules of law heretofore mentioned and the facts, that the defendant was clearly guilty of criminal carelessness, or, at least, that there was ample evidence for the jury to so find. There is, however, such serious doubt as to the defendant’s guilt of a greater crime, that the jury should have resolved that doubt in his favor; that, accordingly, the verdict of the jury should be set aside as to murder in the second degree[.]

Id., 58 Wyo. at 210,128 P.2d at 230.

[¶ 26] We, too, conclude that Lopez’ second degree murder conviction must be set aside. In Eagan, the court sustained as to manslaughter, which was included in the verdict form, and ordered that the trial court re-sentence defendant for manslaughter. Lopez’ verdict form also included voluntary manslaughter; however, we must examine whether the State proved that the slap caused Herman’s death, and we must also examine the various ineffectiveness of counsel issues submitted. We now address those matters.

Causation

[¶ 27] At trial, Dr. Thorpen testified that the cause of death was head trauma that occurred when Lopez inflicted his open hand slap. Before trial, a defense expert reviewed Dr. Thorpen’s results for one hour and concurred. Defense counsel had filed a motion requesting that the public defender pay the fees of an expert but, at hearing, was allowed to withdraw that motion without prejudice to further research the law. Defense counsel did not renew his motion. Nevertheless, at trial, Lopez contended that his push in self-defense was not the fatal blow and that the fatal blow had been inflicted by an intruder with boots. Defense counsel did not offer his own expert to dispute Dr. Thorpen’s testimony, choosing instead to rely upon cross-examination of Dr. Thorpen. At the evidentiary hearing, defense counsel testified about his strategy as follows:

Q.... Did you feel, in the course of your strategy and theme development in the case, that you could use Dr. Thorpen to assist in your defense?
A. I felt that I not only could use him, but I felt that we did in many ways. I felt that he was helpful to the defenses that we had. One of the primary defenses that we had that we used with the jury was the fact that there was no evidence of a blow consistent with the one that Dr. Thorpen described in his testimony. And I think that came out in trial quite well.

As this quotation shows, defense counsel did not dispute that a blow caused death; however, without benefit of an expert, defense counsel did contend that the slap delivered by Lopez was not the fatal blow.

[¶ 28] On appeal, Lopez contended that it was ineffective assistance of counsel not to adequately investigate the victim’s actual cause of death by presenting expert testimony that challenged Dr. Thorpen’s autopsy results. Before trial, defense counsel had consulted with Dr. Thorpen, who explained his reasoning, and one expert who agreed with Dr. Thorpen’s cause of death, meaning that, before trial, counsel had investigated obtaining an expert opinion on causation. The expert, Dr. Randall, investigated two issues for defense counsel, destruction of evidence and cause of death. Dr. Randall billed defense counsel for $150.00 for one hour to review a thirty-five-page autopsy report; however, Dr. Randall could not recall whether he reviewed the police reports, witness statements or tissue slides before determining that Dr. Thorpen had reached the correct result.

[¶29] “To establish that he has been denied effective assistance of counsel, a defendant is required to show that counsel’s performance was deficient and that, but for this deficient performance, it is reasonably probable that the trial result would have been different.” McCoy v. State, 886 P.2d 252, 254 (Wyo.1994). “[S]trategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Id. at 255 (emphasis omitted).

[¶ 30] In McCoy, we recognized that failure to call an expert witness may constitute ineffective assistance of counsel. Id. at 255-56. In Bloomquist v. State, 914 P.2d 812 (Wyo.1996), we stated that “the defendant must show that such expert testimony was available and necessary” and that “[a]ppellant must show that an expert was available who would have testified consistently with his theory.” Id. at 820. Showing that an expert was available who would have testified consistently on a necessary issue is proof of deficient performance; however, a defendant must also show that this deficient performance prejudiced him. McCoy, 886 P.2d at 256. This showing of prejudice requires proof that, but for counsel’s deficient performance, the outcome of the trial would have been different. Id.

[¶ 31] After the evidentiary hearing, the trial court concluded:

[Defendant asserts that his trial counsel was ineffective with respect to his investigation, preparation, and failure to present evidence concerning the cause or mode of death of the victim in this matter. The testimonies of James Wolf, Glenn Larkin, M.D., and the defendant contend that more should have been done to attack the prosecution’s evidence on this topic. However, the unrefuted evidence presented by attorney Tom Sedar and James Thorpen, M.D. was that defense counsel did investigate and check into the basis for the coroner’s opinions as to the cause of death of the victim. Additionally, it appears that trial counsel made knowing and considered tactical trial decisions relative to the handling of the cause of death issue in connection with the theory of the defense presented to the jury at trial.
... It is not inadequate assistance of counsel to not pursue investigation of technical matters or not call expert witnesses at trial when such cannot be said to have been required by a reasonably competent attorney under like circumstances. Lower v. State, 786 P.2d 346, 349 (Wyo.1990)....
Additionally, it must be concluded that the evidence presented at hearing in this case does not show that the alleged problems with the representation of the defendant at trial demonstrate that counsel’s deficiency prejudiced the defense of his case. Schmidt v. State, 29 P.3d 76, 86 (Wyo.2001). At trial in this action, the defense presented substantial evidence and argument relative to its theory of the means of the victim’s death. While appellate counsel now wishes to develop an issue relative to the cause of death, it appears to this judge that the defendant is really attempting to after-the-fact manufacture a defense for which there is little evidentiary support. Counsel is not ineffective for failing to raise a defense for which there is no evidentiary support.

[¶ 32] At the evidentiary hearing, an expert testified that, before trial, defense counsel recognized the need for an expert on causation; however, his efforts to secure that testimony were not reasonable. The expert stated that his review of the police and the coroner’s reports immediately showed that the case was about the cause of death and, at the least, Dr. Thorpen’s opinion was going to have to be tested by the forensic testimony of another pathologist. Ordinarily, he opined, an appropriate review would require a greater amount of time than one hour and would include all police reports, witness statements, autopsy reports, and review of tissue slides. The expert concluded that defense counsel did not act reasonably by accepting such a minimal review by an expert.

[¶ 33] The evidentiary hearing established that an expert witness existed who would have testified favorably at Lopez’ trial but defense counsel failed to conduct a diligent search for that expert. See Hamburg v. State, 820 P.2d 523, 528 (Wyo.1991). The cause of death in this ease was crucial, and Dr. Larkin’s testimony establishes a clear probability that Lopez’ slap was not the cause of death and a strong argument existed that Dr. Thorpen’s conclusions of the cause of the fatal injury were in error. The requisite showing that expert testimony was available and necessary having been made, we conclude that defense counsel’s failure to obtain a proper review of the autopsy report and all associated evidence by a forensic pathologist was deficient performance.

[¶ 34] Lopez is not guilty of manslaughter unless his slap caused Herman’s death. Complex causal relationships require expert testimony, and it is for the jury to then determine whether the State’s circumstantial evidence has proved beyond a reasonable doubt that Lopez’ act caused Herman’s death. Should Dr. Larkin’s testimony survive State challenge, it is probable that a different verdict will result. Lopez has thus established prejudice, and this case is remanded for new trial on manslaughter.

[¶ 35] Finally, we must consider the matter of the State’s refusal to provide Dr. Lar-kin with the autopsy tissue slides and its objection to his report and testimony on that basis. This Court’s directive that an eviden-tiary hearing be held on the issue of whether expert testimony was available and necessary mandated that the district court and the defense receive the full cooperation of the State. The State did not comply with this Court’s directive and, thus, crippled the defense’ ability with the result that Dr. Larkin has provided only a limited opinion. While we appreciate the State’s concern with safeguarding evidence, we are confident the State has the resources to make appropriate arrangements. The State is ordered to provide all tissue slides if so requested by the defense or, alternatively, the defense may choose instead to rely upon the present version of Dr. Larkin’s report and testimony which shall not be subjected to any Daubert challenge but shall be admissible at a new trial.

Suppression of Statement

[¶ 36] Lopez contends that the district court erred by denying his motion to suppress statements he made to law enforcement officers, alleging that such statements were made in the absence of the warnings required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and in response to questions posed by officers after he made an unequivocal request for counsel.

[¶ 37] We review de novo a district court’s ruling on a motion to suppress for involuntariness. Simmers v. State, 943 P.2d 1189, 1194 (Wyo.1997). We will not disturb a district court’s findings on the factual issues of a motion to suppress unless the findings are clearly erroneous. Id. Because the trial court has the opportunity to assess the witnesses’ credibility, to weigh the evidence, and to make the necessary inferences, deductions and conclusions, we view the evidence in the light most favorable to the district court’s determination. Id.

[¶ 38] The trial court determined that Lopez’ statements to police when he was asked to go to the police station and make a statement were voluntary as was his waiver of Miranda rights that occurred about five minutes after police began his interview. At some point, Lopez asked about obtaining a lawyer and specified one by name and inquiry ceased. Our review of the record shows that these findings are not clearly erroneous, and the district court’s order denying the motion to suppress is affirmed.

Destruction of Evidence

[¶39] Before trial, Lopez filed a motion to dismiss charges because Dr. Thorpen released Herman’s body and it was cremated before Lopez could have it independently examined. He alleges that Dr. Thorpen’s examination was not independent or professional. Following a hearing, the trial court denied that motion.

[¶40] Although we have not considered the specific issue with respect to cremation of a homicide victim’s body as violating a defendant’s right, we have established a general rule for a prosecution’s failure to preserve evidence. We have said:

In Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963), the Supreme Court of the United States held that the State is required to preserve evidence. That requirement is “limited to evidence which can be expected to play a significant role in the defendant’s defense * * * and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Wilde v. State, 706 P.2d 251, 255 (Wyo.1985) (citing California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 2529-30, 81 L.Ed.2d 413 (1984)).

Lee v. State, 2 P.3d 517, 524 (Wyo.2000).

[¶ 41] Lopez contends that by not notifying defendant or his attorney that the State intended to release the body to relatives, the State acted with bad faith. Lopez provides us with no authority that the coroner or the State had this duty. Our study suggests that Lopez was charged with the responsibility of timely requesting retention of the body for an independent examination; however, we do not decide the issue. Michael J. Yaworsky, J.D., Annotation, Homicide: Cremation of Victim’s Body as Violation of Accused’s Rights, 70 A.L.R.4th 1091 (1989). A body is a unique type of evidence because it is subject to decay and not easily preserved for evidence purposes. Families understandably wish the release of the crime victim’s body for burial or, as in this case, cremation and if, as here, all of the coroner’s reports, tests, photographs, and tissue slides are available to the defendant, then the defendant has obtained comparable evidence by other reasonably available means. We find no error on the part of the trial court and affirm its order denying the motion to dismiss charges.

CONCLUSION

[¶ 42] A second degree murder conviction requires that the State prove beyond a reasonable doubt that the defendant killed maliciously. Our review of the evidence showed that the State did not prove this element, and the conviction for second degree murder is reversed and retrial on that charge is barred. Defense counsel provided ineffective assistance of counsel to Lopez when he failed to have expert testimony on the issue of causation at trial. This case is therefore remanded to the district court for a new trial on voluntary manslaughter. The State is ordered to provide all tissue slides if so requested by the defense or, alternatively, the defense may choose instead to rely upon the present version of Dr. Larkin’s report and testimony which shall not be subjected to any Daubert challenge but shall be admissible at a new trial.

      . According to testimony at the evidentiary hearing by defense expert Dr. Larkin, this injury is known as a contrecoup blow.

      . Bunting v. Jamieson, 984 P.2d 467, 471-73 (Wyo.1999) (formally adopting in Wyoming the four non-exclusive tests to the facts at hand enunciated in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 592-94, 113 S.Ct. 2786, 2796-97, 125 L.Ed.2d 469 (1993)).


source: Caselaw Access Project

author: VOIGT, Justice.

license: Public Domain

text:
    2004 WY 31
    William N. BEAULIEU and April D. Beaulieu; and William N. Beaulieu and April D. Beaulieu, as parents and natural guardians of minor children Cheyenne Rochelle Beaulieu and Skilar Jonea Beaulieu, Appellants (Plaintiffs), v. Bruce A. FLORQUIST and The City of Rawlins, Appellees (Defendants).
    No. 02-276.
    Supreme Court of Wyoming.
    March 25, 2004.

      Representing Appellants: Walter Urbig-kit, Cheyenne, Wyoming.
    Representing Appellees: Loyd E. Smith of Murane & Bostwick, LLC, Cheyenne, Wyoming.

      Before HILL, C.J., and GOLDEN, LEHMAN, and VOIGT, JJ., and BROOKS, D.J.
   VOIGT, Justice.

[¶ 1] This is an appeal from a summary judgment granted to a municipality and its employee in a tort action because the appellants’ claim failed to comply with the requirements of the Wyoming Constitution. We affirm.

ISSUES

[¶ 2] The parties have worded the issues in unnecessarily complex and argumentative fashion. We find the dispositive issues to be:

1. Does Wyo. Const, art. 16, § 7 require a claim filed under the Wyoming Governmental Claims Act, Wyo. Stat. Ann. §§ 1-39-101, et seq. (Lexis 1999), to be signed by the claimant?

2. Does Wyo. Const, art. 16, § 7 require a claim filed under the Wyoming Governmental Claims Act to be certified to under penalty of perjury?

3. Should the doctrine of judicial estoppel apply to bar any of the appellants’ arguments?

4. If the claim in this case was defective, should it be saved by the equitable doctrines of equitable estoppel, waiver, or laches?

5. If the claim in this case was defective, should it be saved by the doctrine of substantial compliance?

6. Did the decision in Beaulieu v. Florquist, 2001 WY 33, 20 P.3d 521 (Wyo.2001) (Beaulieu I), establish the “law of the case” so as to prohibit the appellees from contesting the validity of the second governmental claim?

FACTS

[¶ 3] This case is before us a second time. The salient facts may be gleaned from our prior opinion. On December 19,1996, a vehicle driven by a Rawlins city employee, Bruce Florquist, struck a vehicle occupied by William N. Beaulieu, his wife, April D. Beaulieu, and their daughter, Cheyenne Rochelle Beaulieu. Within a week of the accident, a “Notice of Claim” appeared in the office of the Rawlins city attorney, asserting personal injury and property damage. After receiving a settlement offer from the city’s insurer, Mr. Beaulieu hired an attorney, who filed a second claim with the city on June 29, 1998. When there was no response from the city, the Beaulieus filed suit on June 14, 1999. Beaulieu I, 2001 WY 33, ¶¶ 4-6, 20 P.3d at 524-25.

STANDARD OF REVIEW

[¶ 4] Summary judgments are governed by W.R.C.P. 56. Our standard for reviewing summary judgments has been recited many times and need not be repeated here. See Beaulieu I, 2001 WY 33, ¶¶ 8-10, 20 P.3d at 525-26.

DISCUSSION

Claimant’s Signature Certified to Under Penalty of Perjury

[¶ 5] In Beaulieu I, the district court granted summary judgment to the appellees on the ground that the lawsuit was time barred by Wyo. Stat. Ann. § 1-39-114. Beaulieu I, 2001 WY 33, ¶ 7, 20 P.3d at 525. On appeal, this Court reversed because, inasmuch as the “Notice of Claim” that appeared in the city attorney’s office in December of 1996 did not comply with any of the requirements of Wyo. Const, art. 16, § 7, it was not a valid claim under the Wyoming Governmental Claims Act, so the appellees could not rely upon the statute of limitations found in that Act. Beaulieu I, 2001 WY 33, ¶¶ 13-17, 20 P.3d at 526-27. We summarized our holding as follows:

We hold that the City of Rawlins is a political subdivision to which the requirements of art. 16, § 7 are applicable. A valid claim against such a municipality must be in writing and certified under penalty of perjury, which means it must be signed. Further, it must be presented to the officer or officers charged with the duty of auditing it. Such claims are subject to the same rules that have been established with respect to claims against the State. In any action against the municipality, it is necessary to allege with specificity that the claim was filed and the date it was filed. Obviously the document upon which the City of Rawlins relies in this case fails to satisfy those criteria.

Id., 2001 WY 33, ¶ 17, 20 P.3d at 527.

[¶ 6] The claim at issue in Beaulieu I was an unsigned, undated “Notice of Claim” that “appeared” in the city attorney’s office soon after the accident. Presently at issue is a second claim, this one having been signed by the Beaulieus’ attorney and filed with the Rawlins City Clerk on June 29, 1998. Beau-lieu I, 2001 WY 33, ¶ 6, 20 P.3d at 525. This “Governmental Claim,” as it was entitled, was not signed by any of the claimants, nor was it certified under penalty of perjury.

[¶ 7] The appellees challenged the second claim by renewing their motion for summary judgment. The renewed motion contended that the second claim failed to satisfy the requirements for a governmental claim found in Wyo. Const, art. 16, § 7, as established by Beaulieu I, and that, therefore, the district court lacked subject matter jurisdiction. After hearing, the district court granted the motion. Relying on Beaulieu I, the district court concluded that the second claim, not being signed by a claimant and not being certified under penalty of perjury, was invalid. Furthermore, again citing Beaulieu I, the district court held that the proper filing of a claim is a jurisdictional prerequisite to the filing of a complaint.

[¶ 8] The district court was correct. Beaulieu I made it clear that governmental claims must meet the requirements of Wyo. Const, art. 16, § 7, including the requirement that such claims must be signed and certified under penalty of perjury. Beaulieu I, 2001 WY 33, ¶¶ 13-18, 20 P.3d at 526-27. Further, Beaulieu I made it just as clear that the claim “must be signed by the claimant or the charge of perjury could not lie.” Id., 2001 WY 33, ¶ 15, 20 P.3d at 527 (emphasis added).

[¶ 9] Central to the district court’s disposition of these first two issues was its conclusion that the signature and certification deficiencies in the second claim meant that a proper claim had not been filed with the governmental entity, and that, therefore, the court lacked subject matter jurisdiction. We affirm that conclusion and add the following discussion to clarify the law in that regard.

[¶ 10] Many cases have come before this court involving the statutory and constitutional requirements for making a claim against a governmental entity. In resolving the issues raised in those cases, we have created a rule whereby, in order to invoke the jurisdiction of the district court, the complaint must allege the filing of a claim with the governmental entity and it must allege the date of that filing. Amrein v. Wyoming Livestock Bd., 851 P.2d 769, 771 (Wyo.1993); Awe v. University of Wyoming, 534 P.2d 97, 102 (Wyo.1975), overruled on other grounds by Dye by Dye v. Fremont County School Dist No. 24, 820 P.2d 982, 986 (Wyo.1991).

[¶ 11] Many of our prior cases have dealt with the necessity of alleging such filing and the date of filing under Wyo. Stat. Ann. § 1-39-113 (LexisNexis 2003), or similar statute, as a condition precedent to suit. See, for example, Garnett v. Brock, 2 P.3d 558, 561 (Wyo.2000); Routh v. State ex rel. Wyoming Workers’ Compensation Div., 952 P.2d 1108, 1117 (Wyo.), cert. denied, 525 U.S. 814, 119 S.Ct. 49, 142 L.Ed.2d 38 (1998); Boyd v. Nation, 909 P.2d 323, 325 (Wyo.1996); Amrein, 851 P.2d at 771; Dee v. Laramie County, 666 P.2d 957, 959 (Wyo.1983); and Board of Trustees of University of Wyoming v. Bell, 662 P.2d 410, 414 (Wyo.1983). However, as early as Utah Const. Co. v. State Highway Commission, 45 Wyo. 403, 19 P.2d 951, 953 (1933), we held that statutes granting the right to sue the state must be construed in consonance with the constitution, and that plaintiffs cannot comply with the constitution by reducing a claim to judgment and then filing that judgment as a claim against the state. The gist of that dual holding is that a claim filed with the governmental entity must meet the constitutional, as well as the statutory, requirements. In Beaulieu I, 2001 WY 33, ¶ 13, 20 P.3d at 526, we reiterated that precept: “It never has been questioned that a claim against the State must comply with the requirements of Wyo. Const, art. 16, § 7.” A logical inference from that statement is that, just as in the case of a plaintiffs failure to allege his claim’s compliance with statutory requirements, failure to allege his claim’s compliance with constitutional requirements results in a lack of subject matter jurisdiction.

[¶ 12] Unfortunately, our precedent on this issue is not consistent. Even in Beaulieu I, 2001 WY 33, ¶ 14, 20 P.3d at 527, where we recognized that governmental claims must meet constitutional requirements, we also noted that this court “has ruled that the execution requirements of art. 16, § 7 can be waived by failing to assert the issue in the trial court....” That suggests that the constitutional requirements are not jurisdictional, because the question of subject matter jurisdiction can be raised at any time and is not waived even if not raised below. Boyd, 909 P.2d at 325 (quoting United Mine Workers of America Local 1972 v. Decker Coal Co., 774 P.2d 1274, 1283-84 (Wyo.1989)); Nicholaus v. Nicholaus, 756 P.2d 1338, 1342 (Wyo.1988); Bell, 662 P.2d at 415. We have, in fact, previously stated that the constitutional signature and certification requirements, unlike the statutory filing requirements, are not jurisdictional:

The State ... contends that an omission of the correct certification results in a failure of subject matter jurisdiction, and the issue can be raised at any time in the proceeding. We do not agree with this contention. The failure to verify or certify as the constitution now reads is nothing more than a defect or an irregularity that is not jurisdictional.

Martinez v. City of Cheyenne, 791 P.2d 949, 958 (Wyo.1990).

[¶ 13] We now believe that Martinez was wrongly decided and that it must be overruled. The above-quoted statement from Martinez was supported by a citation to In re Bear River Irr. Dist., 51 Wyo. 343, 65 P.2d 686 (1937). Bear River Irr. Dist., however, did not involve the filing of a governmental claim nor did it involve the signature and certification requirement of Wyo. Const, art. 16, § 7. Rather, Bear River Iir. Dist. concerned a petition for the organization of an irrigation district, and a provision in the statutory Code of Civil Procedure that required pleadings to be verified. Bear River Irr. Dist.’s holding that the failure to meet that statutory verification requirement was “but a defect or irregularity” that was not jurisdictional simply should not be equated with the failure to comply with a constitutional signature and certification requirement for the presentation of a claim against a governmental entity. In re Bear River Irrigation Dist., 65 P.2d at 687. Over a hundred years ago, we recognized the special significance of the signature and certification requirements when governmental claims are involved:

[I]t is plain that the purpose of requiring a full itemized statement was to hedge a county board about with such restrictions in the allowance of bills that the individual citizens and taxpayers might have the means of knowing the cause and validity of county expenditures, and that the requirement for verification has for its object a showing of good faith and honesty in the presentation of the bill, and some evidence of the truth, justness, and correctness of the claim. As was said in a recent case, the provisions are “designed to protect the board from importunities to pass upon claims before they are presented in such a way as to be considered intelligently, to enable it to easily eliminate improper charges from claims, and to enable taxpayers to detect abuses in the allowance of claims.”

Houtz v. Board of Com’rs of Uinta County, 11 Wyo. 152, 70 P. 840, 842 (1902) (quoting Northern Trust Co. v. Snyder, 113 Wis. 516, 89 N.W. 460 (1902)).

[¶ 14] The rule that the timely filing of a proper claim with the governmental entity is a condition precedent to suit is a judicially created rule. Awe, 534 P.2d at 102. Heretofore, we have limited the application of that rule, when determining the presence or absence of subject matter jurisdiction, to the statutory requirements; that is, we have required only that the complaint allege the filing of the claim and the date of such filing. We now hold, however, that the complaint must also allege compliance with the signature and certification requirements of the state constitution. No proper claim has been filed if it does not meet those constitutional requirements, so the district court does not obtain subject matter jurisdiction until those constitutional requirements are met. That, in effect, was the essence of the holding in Beaulieu I.

[¶ 15] It is important to distinguish between the constitutional signature and certification requirements and the judicially created condition precedent requirement. While we recognized as long ago as Utah Const. Co. that governmental claims must meet the constitutional requirements, we have not heretofore required that complaints allege such compliance. It is our intention clearly to do so now. Inasmuch as the courts do not have subject matter jurisdiction over a governmental claim that has not met the constitutional requirements, it shall henceforth be incumbent upon the plaintiff in such a case to allege in his or her complaint not only compliance with statutory filing requirements, but compliance with constitutional signature and certification requirements. This rule shall apply to all complaints filed after the date of publication of this opinion.

Judicial Estoppel

[¶ 16] The doctrine of judicial es-toppel may be applied to foreclose a party from maintaining inconsistent positions in judicial proceedings. Amoco Production Co. v. Board of County Com’rs of County of Sweetwater, 2002 WY 154, ¶ 17, 55 P.3d 1246, 1252 (Wyo.2002). When the position taken by a party in the first proceeding is successful, that position “ ‘rises to the dignity of conclusiveness.’ ” Id. (quoting Cross v. Berg Lumber Co., 7 P.3d 922, 930 (Wyo.2000)). It has been the policy of this Court, however, to apply the doctrine of judicial estoppel sparingly, and not in a highly technical manner that prevents litigation on the merits. Polo Ranch Co. v. City of Cheyenne, 2003 WY 15, ¶ 22, 61 P.3d 1255, 1262 (Wyo.2003) (quoting Robertson v. TWP, Inc., 656 P.2d 547, 553 (Wyo.1983)). Furthermore, judicial estoppel does not apply to legal conclusions based on undisputed facts. Board of County Com’rs for Sublette County v. Exxon Mobil Corp., 2002 WY 151, ¶ 14, 55 P.3d 714, 720 (Wyo.2002) (quoting Ottema v. State ex rel. Worker’s Compensation Div., 968 P.2d 41, 46 (Wyo.1998)); Erhart v. Flint Engineering & Const., 939 P.2d 718, 723-24 (Wyo.1997).

[¶ 17] The appellees argue that, since the Beaulieus were successful in Beaulieu I in contending that the first claim was invalid because it did not meet the requirements of Wyo. Const, art. 16, § 7, they are judicially estopped from now contending that the second claim did not have to meet those requirements. We disagree, and we decline to apply the doctrine.

[¶ 18] It is true that the Beaulieus’ position as to the first claim was that it was invalid for failure to meet the constitutional requirements. But their present position as to the second claim is not necessarily contradictory to that position. Rather, they now simply argue that the constitutional signing requirements can be met by the signature of an attorney. Beyond that, the question of the constitution’s signature requirements is a question of law to which the doctrine of judicial estoppel does not apply.

Equitable Estoppel, Waiver AND Laches

[¶ 19] This Court’s mandate in Beaulieu I issued on April 17, 2001. The appellees filed their renewed summary judgment motion on June 26, 2002. Between those dates, the parties engaged in a nasty and extensive discovery battle, characterized by motions to compel, motions to strike, and motions to quash. The Beaulieus’ equitable contention is that the primary assertion of the renewed motion, that the district court lacked subject matter jurisdiction because the second claim failed to meet the governmental claim requirements established in Beaulieu I, could have been raised much earlier, thereby obviating the trouble and expense of discovery. The Beaulieus, stung by the passage of the period of limitations established in Wyo. Stat. Ann. § 1-39-113 for the filing of a claim, raised the equitable defenses of equitable estoppel, waiver, and laches. The Beaulieus’ equitable arguments were summarized in their appellate brief as follows:

In this case defendants failed to assert its [sic.] argument under the Wyoming Constitution until after the statute of limitations period had run. Appellees acted as if the claims of each member of the Beaulieu family were valid and legitimate and participated in the comprehensive litigation-oriented activities as if the claims were valid including waiver of non-inclusion in the first summary judgment motion and then disregard of the opportunity to end the litigation during the fourteen-month litigative campaign after first appeal reversal. Neither the Beaulieu family nor counsel, who is of course ultimately responsible, had any reason to expect that the claims were anything but valid given the language of the Governmental Claims Act, coupled with the failure of any action to have been taken in behalf of present Appellees by their attorney whom was also ultimately responsible.

[¶ 20] The appellees raise three counterarguments. First, citing Snake River Brewing Co., Inc. v. Town of Jackson, 2002 WY 11, ¶ 28, 39 P.3d 397, 407-08 (Wyo.2002) and Thompson v. Board of County Com’rs of the County of Sublette, 2001 WY 108, ¶ 11, 34 P.3d 278, 281 (Wyo.2001), they point out that, as a general rule, estoppel will not lie against governmental bodies without a showing of affirmative misconduct. Second, they contend that the Beaulieus were well aware of the applicability of Wyo. Const, art. 16, § 7, inasmuch as they were the ones who raised the issue in regard to the first claim. And third, the appellees argue that, given the age of the ease, it was necessary to preserve testimony through discovery before another venture into the appeal process.

[¶21] The district court did not rule directly on any of the equitable defenses, but the grant of summary judgment to the appellees clearly incorporated a ruling against the Beaulieus on these theories. Although we would prefer that the record contain specific rulings on each issue, we will affirm the district court because the record does not support the applicability of equitable estoppel, waiver or laches. It was not unreasonable for the appellees to proceed with discovery prior to filing another motion for summary judgment. In fact, their estimation that another summary judgment process, followed by another appeal, could add another year or more to the case turned out to be prophetic. Furthermore, this was not a situation where the appellees possessed superior knowledge of the state of the law. The Beaulieus first raised the issue of the applicability of Wyo. Const, art. 16, § 7 to claims under the Wyoming Governmental Claims Act, and successfully argued that position. And most importantly, Beaulieu I, 2001 WY 33, ¶ 15, 20 P.3d at 527, left little doubt that the claim must be signed by the claimant and certified to under penalty of perjury:

The requirement is clear that an itemized statement in writing is to be filed, which is certified under penalty of perjury. Such a statement must be signed by the claimant or the charge of perjury could not lie.

[¶22] When the mandate in Beaulieu I issued, too much time had passed since the accident for the Beaulieus to file a new claim with the City of Rawlins. Nevertheless, the Beaulieus could have prevented the lengthy and expensive discovery process that followed by dismissing their complaint or by bringing the attorney signature issue before the district court on their own initiative. The clear language of Beaulieu I quoted above certainly should have alerted them to the deficiency in their claim. This simply is not a case where equity demands that the court step in to save them. The appellees made no misrepresentations to the Beaulieus, there is no evidence that the appellees intended to give up their right to pursue the Wyo. Const, art. 16, § 7 arguments, and it was not unreasonable to conduct discovery before embarking on a second appeal process.

Substantial Compliance

[¶ 23] In their next argument, the Beaulieus cite Rissler & McMurry Co. v. Wyoming Highway Dept., 582 P.2d 583 (Wyo.1978), for the proposition that substantial compliance, rather than strict compliance, with a governmental claims notice statute is sufficient. In Rissler & McMurry Co., 582 P.2d at 588, this Court held that failure to file a claim with the State Auditor, as required by statute, was not fatal where the claimant had filed the claim with the State Highway Department, as required by the Department’s rules. We applied the doctrine of substantial compliance in that situation because the primary purpose of notice — allowing the State an opportunity to investigate and negotiate claims — was preserved.

[¶ 24] The appellees’ response to this argument is essentially a judicial estoppel argument. They point out the Beaulieus’ contention in Beaulieu I that Wyoming clearly requires strict, as opposed to substantial, compliance with statutory requirements, and they argue that the Beaulieus should not now be allowed to argue the opposite view of the law.

[¶ 25] Neither in its decision letter nor in its order granting the summary judgment motion did the district court directly address the concept of substantial compliance. The gist of the district court’s decision, however, is that a claimant cannot comply with the constitutional signature requirements by submitting a claim signed only by his attorney. We agree. Whether viewed under a strict compliance standard or a substantial compliance standard, the fact remains that the primary purpose for the constitutional requirements' — to make sure that governmental claims be sworn to by the claimant — simply cannot be accomplished through an attorney’s signature.

Law of the Case

[¶ 26] We described the law-of-the-case doctrine in Lyden By and Through Lyden v. Winer, 913 P.2d 451, 454 (Wyo.1996):

The “law of the case” doctrine stands for the proposition that a court’s decision on an issue of law made at one stage of a case becomes a binding precedent to be followed in successive stages of the same litigation. Triton Coal Co. v. Husman, Inc., 846 P.2d 664, 667 (Wyo.1993); see also IB Moore’s Federal Practice ¶ 0.404[1] (2d ed.1991). This doctrine is designed to avoid repetitious litigation and to promote consistent decision making; thus, it is related to res judicata, collateral estoppel and stare decisis. Triton Coal, at 667. Usually the “law of the case” doctrine requires a district court to adhere to its prior rulings, adhere to the rulings of an appellate court, or adhere to another judge’s rulings in the same case or a closely related case. Triton Coal, at 668; see also 18 Wright, Miller & Cooper, Federal Practice and Procedure: § 4478 (1981).

[¶ 27] The basis for the Beaulieus’ law-of-the-case argument is not entirely clear, although in the following passage from their appellate brief, it appears they contend that, by its silence in Beaulieu I with respect to the validity of the Beaulieus’ second claim, this Court impliedly found that claim to be valid:

Law of the ease in this concept is similar to waiver or estoppel, but rather in a more technical sense involves the finality position previously related by Appellant that if the Supreme Court of Wyoming had determined to effectively conclude the Beaulieu family litigation in making the first decision, it would have so stated definitively there. The Beaulieu family and their attorney postulate that the Supreme Court intended to do what was done. Consequently it is argued under Triton and [Ly-den ] concepts that the decision and opinion to be rendered in Beaulieu II should be interpreted to do what was said in Beaulieu I which is again to remand the case and this time for trial to invalidate the dismissal by the District Court based on a sequential motion for summary judgment involving an issue to have been as clearly apparent that first time as it came to be in this present second appeal.

[¶ 28] The law-of-the-case doctrine does not apply in this instance. At issue in Beau-lieu I was the validity of the first claim. The issue at present is the validity of the second claim. By no stretch of the imagination could it be said that, by failing to find the second claim invalid in Beaulieu I, we somehow found it to be valid. If there is any role for the law-of-the-case doctrine in this case, it would be in its stare decisis sense. That is, having said in Beaulieu I that a claim filed under the Wyoming Governmental Claims Act must meet the requirements of Wyo. Const, art. 16, § 7, including the requirement that it be signed by the claimant and certified to under penalty of perjury, we could hardly say in Beaulieu II that the opposite is true.

CONCLUSION

[¶ 29] The Governmental Claim signed by the Beaulieus’ attorney and filed with the City of Rawlins did not meet the signature and certification requirements of Wyo. Const, art. 16, § 7, and was therefore not a valid claim. Consequently, the district court lacked subject matter jurisdiction and dismissal of the Beaulieus’ complaint through summary judgment was appropriate. The Beaulieus have not established the necessary facts to support application of the doctrines of equitable estoppel, waiver, laches, or substantial compliance, and the law-of-the-case doctrine does not bar the appellees from contesting the validity of the governmental claim.

[¶ 30] Affirmed.

      . There is no change in the relevant portion of the current 2003 codification of this act.

      . Mrs. Beaulieu was pregnant at the time of the collision. Skilar Jonea Beaulieu was born subsequent to the accident. The four members of the Beaulieu family are the appellants in this case.

      . Wyo. Stat. Ann. § 1-39-114 states:
      Except as otherwise provided, actions against a governmental entity or a public employee acting within the scope of his duties for torts occurring after June 30, 1979 which are subject to this act shall be forever barred unless commenced within one (1) year after the dale the claim is filed pursuant to W.S. 1-39-113. In the case of a minor seven (7) years of age or younger, actions against a governmental entity or public employee acting within the scope of his duties for torts occurring after June 30, 1979 which are subject to this act are forever barred unless commenced within two (2) years after occurrence or until his eighth birthday, whichever period is greater. In no case shall the statute of limitations provided in this section be longer than any other applicable statute of limitations. In the absence of applicable insurance coverage, if the claim was properly filed, the statute shall be tolled forty-five (45) days after a decision by the entity, if the decision was not made and mailed to the claimant within the statutory time limitation otherwise provided herein.

      . Wyo. Const, art. 16, § 7 states:
      No money shall be paid out of the state treasury except upon appropriation by law and on warrant drawn by the proper officer, and no bills, claims, accounts or demands against the state, or any county or political subdivision, shall be audited, allowed or paid until a full itemized statement in writing, certified to under penalty of perjury, shall be filed with the officer or officers whose duty it may be to audit the same.

      . The origin of this "Notice of Claim” appears to be a mystery. It was not signed by any of the claimants and Mr. Beaulieu testified by affidavit that it was not prepared by him or any member of his family. No one from the city knew when, or by whom, it was presented. Mr. Beaulieu speculated that it was prepared by his insurance carrier to obtain reimbursement for property damage payments. See Beaulieu I, 2001 WY 33, ¶ 5, 20 P.3d at 524-25.

      . Eathorne v. Board of Trustees of Memorial Hosp. of Carbon County, 2001 WY 36, 21 P.3d 745 (Wyo.2001); Beaulieu I, 2001 WY 33, 20 P.3d 521; Garnett v. Brock, 2 P.3d 558 (Wyo.2000); Routh v. State ex rel. Wyoming Workers' Compensation Div., 952 P.2d 1108 (Wyo.), cert. denied, 525 U.S. 814, 119 S.Ct. 49, 142 L.Ed.2d 38 (1998); Allen v. Lucero, 925 P.2d 228 (Wyo.1996); Boyd v. Nation, 909 P.2d 323 (Wyo.1996); Amrein v. Wyoming Livestock Bd., 851 P.2d 769 (Wyo.1993); Cranston v. Weston County Weed and Pest Bd., 826 P.2d251 (Wyo.1992); Martinez v. City of Cheyenne, 791 P.2d 949 (Wyo.1990); Duran v. Board of County Com'rs of Sweetwater County, 787 P.2d 971 (Wyo.1990); Dee v. Laramie County, 666 P.2d 957 (Wyo.1983); Board of Trustees of the University of Wyoming v. Bell, 662 P.2d 410 (Wyo.1983); Rissler & McMurry Co. v. Wyoming Highway Dept., 582 P.2d 583 (Wyo.1978); Wyoming State Highway Department v. Napolitano, 578 P.2d 1342 (Wyo.1978); Awe v. University of Wyoming, 534 P.2d 97 (Wyo.1975), overruled on other grounds by Dye by Dye v. Fremont County School Dist. No. 24, 820 P.2d 982, 986 (Wyo.1991); Price v. State Highway Commission, 62 Wyo. 385, 167 P.2d 309 (1946); Utah Const. Co. v. State Highway Commission, 45 Wyo. 403, 19 P.2d 951 (1933); Town Council of Town of Hudson v. Ladd, 37 Wyo. 419, 263 P. 703 (1928); Houtz v. Board of Com’rs of Uinta County, 11 Wyo. 152, 70 P. 840 (1902).

      . Wyo. Stat. Ann. § 1-39-113 provides, in pertinent part:
      (a) No action shall be brought under this act against a governmental entity unless the claim upon which the action is based is presented to the entity as an itemized statement in writing within two (2) years of the date of the alleged act, error or omission ...
      (c) All claims against the state shall be presented to the general services division of the department of administration and information. Claims against any other governmental entity shall be filed at the business office of that entity.

      . The summary judgment in the instant case is being affirmed because of the substantive failure to comply with the constitutional requirements, not because of the failure to allege compliance.

      . We recently described the doctrine of equitable estoppel in Birt v. Wells Fargo Home Mortgage, Inc., 2003 WY 102, ¶ 34, 75 P.3d 640, 653 (Wyo.2003):
      " 'Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded from asserting rights which might otherwise have existed as against another person who has in good faith relied upon such conduct and has been led thereby to change his position for the worse.’ " Snake River Brewing Co., Inc. v. Town of Jackson, 2002 WY 11, ¶ 28, 39 P.3d 397, 407-08 (Wyo.2002) (quoting State Farm Mut. Auto. Ins. Co. v. Petsch, 261 F.2d 331, 335 (10th Cir.1958)). “Equitable estoppel arises only when a party, by acts, conduct, or acquiescence causes another to change his position.” Roth v. First Sec. Bank of Rock Springs, Wyo., 684 P.2d 93, 96 (Wyo.1984). The elements of equitable es-toppel are a lack of knowledge, reliance in good faith, and action or inaction that results in an injury. Id. Equitable estoppel is similar to promissory estoppel, but equitable estoppel is a tort doctrine that requires proof of misrepresentation. B & W Glass, Inc. [v. Weather Shield Mfg., Inc.,'] 829 P.2d [809,] 813 [ (Wyo.1992) ].

      ."Waiver is the intentional relinquishment of a known right.” Squaw Mountain Cattle Co. v.

        Bowen, 804 P.2d 1292, 1297 (Wyo.1991). Waiver must be manifest in some unequivocal manner. Amax Coal West, Inc. v. Wyoming State Bd. of Equalization, 896 P.2d 1329, 1333 (Wyo.1995) (quoting Jackson State Bank v. Homar, 837 P.2d 1081, 1086 (Wyo.1992)).

      . Laches is an equitable theory based on an unreasonable delay by a party in asserting a right. Squaw Mountain Cattle Co., 804 P.2d at 1297. Laches is comprised of inexcusable delay, and injury, prejudice or disadvantage to others. Moncrief v. Sohio Petroleum Co., 775 P.2d 1021, 1025 (Wyo.1989). The party asserting the doctrine of laches must show that he relied on the other party's actions and changed his position in reliance thereon to his prejudice. Murphy v. Stevens, 645 P.2d 82, 91 (Wyo.1982). The defense of laches is reserved for the rare case where a protracted acquiescence induces the undertaking of substantial activity in reliance thereon. First Nat. Bank of Lander v. First Wyoming Sav. and Loan Ass’n, 592 P.2d 697, 702 (Wyo.1979).

      . The accident occurred in December 1996. The lawsuit was filed in June 1999. The mandate in Beaulieu I issued in April 2001. The case was four-and-a-half years old when jurisdiction was returned to the district court.

      . See Cranston, 826 P.2d at 257-58, for a considerably more limited view of the doctrine of substantial compliance in regard to the Wyoming Governmental Claims Act. Cranston, 826 P.2d at 256-57, also describes the inapplicability of the doctrine of equitable estoppel in the absence of assertions or representations by the governmental entity that were relied upon by the claimant in failing to meet claim filling requirements.


text:
    2004 WY 32
    Karin YOAK, Appellant (Plaintiff), v. David IDE; and The City of Green River, Appellees (Defendants). David Ide, Appellant (Defendant), v. Karin Yoak, Appellee (Plaintiff).
    Nos. 03-57, 03-68.
    Supreme Court of Wyoming.
    March 25, 2004.

      Representing Karin Yoak: John P. LaBu-da of Palmer & LaBuda, P.C., Rock Springs, Wyoming.
    Representing City of Green River: Richard Rideout of the Law Offices of Richard Rideout, P.C., Cheyenne, Wyoming.
    Representing David Ide: Patrick J. Crank, Attorney General; John W. Renneisen, Deputy Attorney General; and John D. Rossetti, Senior Assistant Attorney General, Cheyenne, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   VOIGT, Justice.

[¶ 1] The primary issue in these combined appeals is the validity of a governmental claim. We affirm the district court’s order granting summary judgment to the appellees and dismissing the appellant’s complaint, and we find the appellees’ collateral estoppel and res judicata issues to be moot.

ISSUES

1. Did the appellant’s Notice of Claim meet the constitutional requirements for a valid governmental claim?

2. Is the appellant’s Notice of Claim saved by the doctrine of substantial compliance?

3. Does an invalid Notice of Claim deprive the district court of subject matter jurisdiction?

4. Under the doctrines of res judicata and collateral estoppel, did the district court err when it denied the appellees’ motion for summary judgment?

FACTS

[¶2] On November 27, 1999, the appellant was a passenger in a vehicle being driven by her husband. During a traffic stop initiated by a Wyoming Highway Patrol Trooper, the appellant was physically restrained by David Ide, a Green River police officer, who had responded to the scene in a back-up capacity. On January 6, 2000, the appellant filed with the City of Green River a Notice of Claim asserting negligence on Ide’s part during the November 27, 1999, incident. The Notice of Claim was not signed by the appellant, but by her attorney, and it was not certified to under penalty of perjury. On June 9, 2000, the appellant filed suit in federal district court against the appellees and the city police chief alleging both federal and state law claims, including negligence. The federal district court later granted the appel-lees’ motion for summary judgment on the federal claims, finding that Ide’s conduct during the incident was “objectively reasonable.” The pendent state law claims were dismissed without prejudice.

[¶ 3] On July 25, 2001, the appellant filed a second Notice of Claim with the city. This second notice, like the first, was signed by the appellant’s attorney, rather than by the appellant, and likewise, it was not certified to under penalty of perjury. On August 29, 2001, the appellant filed a complaint in state district court, reasserting her negligence cause of action against the appellees. Attached to and referenced in the complaint was a copy of the July 25, 2001, Notice of Claim.

[¶ 4] In their separate answers, the ap-pellees raised as an affirmative defense the legal insufficiency of the Notice of Claim. Prior to any discovery, both appellees filed motions for summary judgment and the City of Green River also filed a motion to dismiss. After a hearing, the district court denied the motions for summary judgment on the ground that the federal court had not determined the state law negligence claim. However, the district court granted the motion to dismiss, as to both appellees, on the ground that the Notice of Claim was not certified to under penalty of perjury. The district court did find that the signature of a governmental claimant’s attorney, as opposed to the signature of the claimant, herself, was sufficient.

DISCUSSION

Motion to Dismiss

[¶ 5] The motion to dismiss stated that it was presented “pursuant to Rule 12 of the Wyoming Rules of Civil Procedure,” without identifying a particular subsection of that rule or underlying legal theory. Reference in the motion to the district court’s lack of jurisdiction might suggest a W.R.C.P. 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, but that reference was supported by citation to Allen v. Lucero, 925 P.2d 228, 230 (Wyo.1996), where an order granting a motion for summary judgment under W.R.C.P. 56 was affirmed. Interestingly, the three cases cited in the City of Green River’s appellate brief as supporting a standard of review whereby this Court is to “focus on the pleading to determine if it states a claim upon which relief can be granted” are all W.R.C.P. 12(b)(6) cases. See Garnett v. Brock, 2 P.3d 558, 562 (Wyo.2000); Duncan v. Afton, Inc., 991 P.2d 739, 741-42 (Wyo.1999); and Amrein v. Wyoming Livestock Bd., 851 P.2d 769, 769-70 (Wyo.1993). In its decision letter, the district court raised yet a third subsection of W.R.C.P. 12, treating the motion as if it were a motion for judgment on the pleadings under subsection (c). The district court then relied upon Barrar v. Bourke, 910 P.2d 572, 575 (Wyo.1996), for the proposition that such motions should only be granted where it is shown on the face of the complaint that the plaintiff is not entitled to relief under any set of facts.

[¶ 6] We find that this imprecision is not material in the instant case, inasmuch as dismissal would have been appropriate under any of the referenced sections of W.R.C.P. 12. The district court granted the motion to dismiss on the single ground that the appellant’s Notice of Claim was not certified to under penalty of perjury. We affirm that decision for the reasons set forth in Beaulieu v. Florquist, 2001 WY 33, 20 P.3d 521 (Wyo.2001) (Beaulieu I) and in Beaulieu v. Florquist, 2004 WY 31, 86 P.3d 863 (Wyo.2004) (No. 02-276, published 3/25/04) (Beaulieu II). We clearly held in those cases that a notice of claim filed pursuant to the Wyoming Governmental Claims Act must meet the requirements of Wyo. Const, art. 16, § 7 — specifically, signature by the claimant certified to under penalty of perjury. The district court’s holding that such claims may be signed by the claimant’s attorney was in error, but that error does not affect the affirmance on the separate issue of the signature being certified to under penalty of perjury-

Substantial Compliance

[¶ 7] The appellant contends that, should this Court find her Notice of Claim to be technically insufficient, we should apply the doctrine of substantial compliance and reverse the district court’s dismissal order. We begin discussion of this issue by pointing out that the district court did not directly address substantial compliance, but that the effect of its decision is a holding that a governmental claim cannot comply with the requirements of Wyo. Const, art. 16, § 7 unless it is certified to under penalty of perjury. In other words, non-compliance is not substantial compliance. We agree. We recently stated in Beaulieu II, 2004 WY 31, ¶ 25, 86 P.3d at 871, “[whether viewed under a strict compliance standard or a substantial compliance standard, the fact remains that the primary purpose for the constitutional requirements — to make sure that governmental claims be sworn to by the claimant — simply cannot be accomplished through an attorney’s signature.” The same is true of the requirement that the claim be certified to under penalty of perjury. One does not substantially comply with a certification requirement by failing to certify or to do anything resembling a certification.

Subject MatteR JuRisdiction

[¶ 8] We have affirmed dismissal of the appellant’s complaint because her underlying governmental claim did not meet the constitutional signature and certification requirements. Consequently, we need not address her additional argument that the failure to allege in her complaint compliance with the constitution did not deprive the district court of subject matter jurisdiction. We note, however, that in Beaulieu II, 2004 WY 31, ¶ 15, 86 P.3d at 868-869, we held that such failure in future complaints will, indeed, have that effect.

Res Judicata and CollateRal Estoppel

[¶ 9] The appellees contend that the federal district court’s dismissal of the appellant’s federal law claims should bar litigation in state court of the appellant’s state law claims. This issue is moot, given affirmance of the state court dismissal on the grounds set forth above.

CONCLUSION

[¶ 10] The appellant’s Notice of Claim did not meet the constitutional requirements for a valid claim under the Wyoming Governmental Claims Act because it was not signed by the claimant and it was not certified to under penalty of perjury. We affirm dismissal of the appellant’s complaint.

      . For simplicity’s sake, the plaintiff, Karin Yoak, will be referred to throughout this opinion as the appellant, and the defendants, David Ide and the City of Green River, will be referred to as the appellees.

      . Although denominated a summary judgment, the order in Allen was, in effect, an order of dismissal based on a lack of jurisdiction. Allen, 925 P.2d at 230-31.

      . Wyo. Const, art. 16, § 7 states:
      No money shall be paid out of the state treasury except upon appropriation by law and on warrant drawn by the proper officer, and no bills, claims, accounts or demands against the state, or any county or political subdivision, shall be audited, allowed or paid until a full itemized statement in writing, certified to under penalty of perjury, shall be filed with the officer or officers whose duty it may be to audit the same.


author: LEHMAN, Justice.

text:
    2004 WY 34
    In the Matter of the Worker’s Compensation Claim of April D. LUDWIG, Appellant (Petitioner), v. STATE of Wyoming, ex rel., Wyoming WORKERS’ SAFETY AND COMPENSATION DIVISION, Appellee (Respondent).
    No. 03-113.
    Supreme Court of Wyoming.
    March 30, 2004.

      Representing Appellant: Lynn Boak, Cheyenne, WY. Argument by Ms. Boak.
    Representing Appellee: Patrick J. Crank, Attorney General; Steven R. Czoschke, Assistant Attorney General; and William M. MacPherson, Special Assistant Attorney General. Argument by Mr. MacPherson.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   LEHMAN, Justice.

[¶ 1] This is an appeal from a determination of the State of Wyoming, Office of Administrative Hearings (OAH), denying the permanent partial disability claim of appellant April D. Ludwig. We affirm.

ISSUES

[¶2] Ludwig sets forth the following issues:

1. Where the evidence presented at hearing was limited by agreement of the parties to a single issue, can the [OAH] base [its] decision to deny permanent partial disability benefits on a different issue?
2. If the issue is the adequacy of the claimant’s job search, as framed by the pleadings, are the [State’s] rules concerning compliance with [Wyo. Stat. § 27-14-405(h) ] an attempt to legislate or amend or, alternatively, construe the statute?
3. If the [OAH] improperly applied W.S. 27-14-405(h) to deny permanent partial disability benefits to the claimant, is there otherwise substantial evidence in the record to conclude the claimant was not entitled to these benefits?

FACTS

[¶ 3] Ludwig injured her back while at work in October of 1999 and received an impairment rating in October of 2000. She later was given a permanent partial impairment rating in October of 2001. Ludwig applied for six jobs in 2000, two jobs in 2001, and six jobs in 2002. Ludwig conducted her search for the six jobs in 2002 during the eight days just prior to making application for permanent partial disability. Ludwig’s application was denied by appellee State of Wyoming, ex rel. Wyoming Workers’ Safety and Compensation Division (State) on March 14, 2002, on the basis that she was not actively seeking work.

[¶ 4] Ludwig appealed this determination to the OAH. After hearing, the OAH upheld the State’s determination. On review, the district court upheld the decision of the OAH. This appeal followed.

STANDARD OF REVIEW

[¶ 5] The parameters for judicial review of an agency action are found in Wyo. Stat. Ann. § 16-3-114. Serda v. State ex rel. Workers’ Safety and Compensation Div., 2002 WY 38, ¶ 18, 42 P.3d 466, ¶ 18 (Wyo.2002). Our standard of review when reviewing administrative agency action was clarified and refined in the case of Newman v. State ex rel. Workers’ Safety and Compensation Div., 2002 WY 91, 49 P.3d 163 (Wyo.2002). That case held that “the substantial evidence test is the appropriate standard of review ... when factual findings are involved and both parties submit evidence.” Newman, at ¶ 22.

[¶ 6] In appeals where both parties submitted evidence at the hearing below and the dispute is over the soundness of the factual findings of the agency, Newman mandates the appellate review be limited to application of the substantial evidence test. Id. This is true regardless of which party appeals from the agency decision. The substantial evidence test provides:

In reviewing findings of fact, we examine the entire record to determine whether there is substantial evidence to support an agency’s findings. If the agency’s decision is supported by substantial evidence, we cannot properly substitute our judgment for that of the agency and must uphold the findings on appeal. Substantial evidence is relevant evidence which a reasonable mind might accept in support of the agency’s conclusions. It is more than a scintilla of evidence.

Newman, at ¶ 12 (quoting State ex rel. Workers’ Safety and Compensation Div. v. Jensen, 2001 WY 51, ¶10, 24 P.3d 1133, ¶ 10 (Wyo.2001)). This court is required to review the entire record in making its ultimate determination on appeal. Newman, at ¶¶ 19 and 24-26.

[¶ 7] In State ex rel. Workers’ Safety and Compensation Div. v. Garl, 2001 WY 59, ¶ 9, 26 P.3d 1029, ¶ 9 (Wyo.2001), we acknowledged that:

The interpretation and correct application of the provisions of the Wyoming Worker’s Compensation Act are questions of law over which our review authority is plenary. Collicott [v. State ex rel. Workers’ Safety and Compensation Div., 2001 WY 35], at ¶ 4[, 20 P.3d 1077, ¶ 4 (Wyo.2001) ]. Conclusions of law made by an administrative agency are affirmed only if they are in accord with the law. Id. We do not afford any deference to the agency’s determination, and we will correct any error made by the agency in either interpreting or applying the law. Id.

In accord see Vaughan v. State ex rel. Workers’ Compensation Div., 2002 WY 131, ¶ 6, 53 P.3d 559, ¶ 6 (Wyo.2002).

DISCUSSION

Sufficiency of Evidence

[¶ 8] In the primary issue on appeal, Ludwig claims that insufficient evidence exists to conclude that she was not entitled to permanent partial disability benefits. The State argues that the OAH correctly found that Ludwig had failed to meet her burden of proof that she had actively sought suitable work.

[¶ 9] Wyo. Stat. Ann. § 27-14-405 (Lexis 1999), in applicable part, provides:

(h) An injured employee awarded permanent partial impairment benefits may apply for a permanent disability award subject to the following terms and conditions:
(iii) The employee has actively sought suitable work, considering the employee’s health, education, training and experience.

A claimant for workers’ 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. Hermosillo v. State ex rel. Workers’ Safety and Compensation Div., 2002 WY 175, ¶ 6, 58 P.3d 924, ¶ 6 (Wyo.2002); Johnson v. State ex rel. Workers’ Safety and Compensation Div., 2001 WY 48, ¶ 7, 23 P.3d 32, ¶ 7 (Wyo.2001).

[¶ 10] A vocational evaluation, dated February 19, 2002, stated that Ludwig was not currently looking for work. Although Ludwig noted several things that she disagreed with in the vocational evaluation, she did not disagree with this statement. Moreover, Ludwig personally completed the job search record which reveals that Ludwig applied for six jobs in 2000, two jobs in 2001, and six jobs in 2002, with Lhdwig conducting her 2002 job search during the eight days prior to her making application for permanent partial disability benefits. Ludwig admitted that the job search record represented a full, complete, and accurate list of all jobs for which she had applied since she was injured in October of 1999.

[¶ 11] Further review of the circumstances surrounding the job search record identified that, while Ludwig had contacted six employers in October of 2000, she only submitted four actual employment applications. Ludwig also contacted two employers in 2001 but submitted no actual employment applications. Likewise, just days before submitting her application for permanent partial disability, Ludwig contacted six other employers, yet did not submit a single employment application. In addition, Ludwig testified that to the best of her knowledge she had signed up with the local job service. She did not contact them, however, on a regular basis.

[¶ 12] The evidence further established that Ludwig was released to return to light to medium type work. Potential alternative occupation positions, which accurately took into account Ludwig’s limitations, were identified. The labor market survey listed several jobs within Ludwig’s limitations, experience, and training that were available within the entire state, including Rock Springs where Ludwig lived.

[¶ 13] In Hermosillo, at ¶ 9, a similar, case, this court upheld a denial of permanent partial disability benefits based upon the claimant’s failure to actively seek employment. Therein we stated:

Under the statute [Wyo. Stat. Ann. § 27-14-405], the hearing examiner was required to consider whether the evidence showed that Hermosillo was “actively” seeking employment. A review of the record shows that Hermosillo testified that, since 1999, he had applied at ten different companies, but, in his opinion, had not been hired either because of his health or his limited ability to speak English. Hermosillo did not testify about the specific dates of his applications or provide further details about his job search efforts. Before he applied for benefits, he registered with the Department of Vocational Rehabilitation and, at the time of hearing, was about to begin a part-time position for a few hours per week. In contrast, the Division presented testimony by the vocational evaluator that, in 2000 and 2001, work was available for which Hermosillo was qualified and would accommodate the lifting restrictions imposed by his physician. The evaluator testified that work at a comparable or higher wage was available for Hermosillo despite a language barrier and lifting restrictions. This evidence of sporadic efforts is substantial evidence supporting the hearing examiner’s conclusion that Hermosillo did not present evidence that he had engaged in any kind of a sustained effort to apply or train for work when he applied for benefits. Although the evidence somewhat conflicts, a review of the entire record shows that the hearing examiner’s conclusion that Hermosillo had not actively looked for work as required by the statute was reasonable and not arbitrary and capricious.

[¶ 14] Upon review of the record, we hold, as in Hermosillo, the conclusion reached by the OAH that Ludwig failed to prove she had actively sought employment is supported by substantial evidence. This determination was sufficiently based upon exhibits and testimony presented by both parties, including the testimony of Ludwig herself.

Application of Agency Rules

[¶ 15] Ludwig also asserts that even insofar as the OAH ruled that she had not sought work as required by § 27-14-405(h), the OAH improperly used the State’s rules in reaching that determination. The State counters that Ludwig failed to bring that issue before the OAH; hence, the issue is not properly before this court and should not be considered. Alternatively, the State contends that the OAH did not rely on the State’s rules concerning “actively seeking employment” in making its decision.

[¶ 16] This court has consistently held that it “will not consider issues which are raised for the first time on appeal unless they are jurisdictional issues or issues of such a fundamental nature that they must be considered.” Joyner v. State, 2002 WY 174, ¶ 13, 58 P.3d 331, ¶ 13 (Wyo.2002); Robinson v. Pacificorp, 10 P.3d 1133, 1136 (Wyo.2000); WW Enterprises, Inc. v. City of Cheyenne, 956 P.2d 353, 356 (Wyo.1998). Nevertheless, even summary review of this issue discloses the OAH’s ruling is supported through application of the language within § 27-14-405(h).

[¶ 17] In Hermosillo, the State argued that ch. 1, § 4 of its rules established that Hermosillo’s efforts to seek employment were insufficient. This court noted that because Hermosillo did not challenge the applicability of the rule, this court would assume that it applied. We further found “it unnecessary to determine the rule’s intent. Under the statute, the hearing examiner was required to consider whether the evidence showed that Hermosillo was ‘actively’ seeking employment.” Hermosillo, at ¶ 9.

Due Process

[¶ 18] Ludwig lastly contends that the OAH improperly concluded that her real problem in seeking work was her degenerative back disease which was unrelated to her work injury when denying her application for permanent partial disability benefits. Ludwig claims this was error because the sole issue was whether or not she had sufficiently sought work as required under § 27-14-405(h). Therefore, Ludwig argues that she was not afforded due process because she was not given proper notice of the OAH’s intent to consider other issues.

[¶ 19] Although in its decision the OAH also concluded that the evidence supported the finding that Ludwig was unable to work because of her degenerative back condition, rather than a specific work-related injury, we are satisfied that the determinative issue before the OAH was whether Ludwig actively sought suitable employment as required by § 27-14-405(h). Ludwig was given adequate notice of this determinative issue and fully litigated this issue. The OAH’s decision on this issue is conclusive.

CONCLUSION

[¶ 20] Upon our careful review of the record on appeal, we hold that the determination of the OAH denying Ludwig’s application for permanent partial disability is affirmed.

      . Wyo. Stat. § 16-3-114(c) (LexisNexis 2003):
      (c) To the extent necessary to make a decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. In making the following determinations, the court shall review the whole record or those parts of it cited by a party and due account shall be taken of the rule of prejudicial error. The reviewing court shall:
      (i) Compel agency action unlawfully withheld or unreasonably delayed; and
      (ii) Hold unlawful and set aside agency action, findings and conclusions found to be:
      (A) Arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law;
      (B) Contrary to constitutional right, power, privilege or immunity;
      (C) In excess of statutory jurisdiction, authority or limitations or lacking statutory right;
      (D) Without observance of procedure required by law; or
      (E) Unsupported by substantial evidence in a case reviewed on the record of an agency hearing provided by statute.