source: Caselaw Access Project

author: VOIGT, Justice.

license: Public Domain

text:
    2004 WY 16
    The BOARD OF COUNTY COMMISSIONERS OF the COUNTY OF LARAMIE, Appellant (Intervenor/Plaintiff), v. The CITY OF CHEYENNE, A Wyoming Municipal Corporation; East Whitney Limited Partnership, a Wyoming Limited Partnership; and West Whitney Limited Partnership, a Wyoming Limited Partnership, Appellees (Defendants). Jean Cotton; Kathryne Cotton and Ruth Cotton, individually and as owners of Cotton Holdings, LLC, a Wyoming Limited Liability Company, Appellants (Plaintiffs), v. The City of Cheyenne, A Wyoming Municipal Corporation; East Whitney Limited Partnership, A Wyoming Limited Partnership; and West Whitney Limited Partnership, a Wyoming Limited Partnership, Appellees (Defendants). The City of Cheyenne, A Wyoming Municipal Corporation, Appellant (Defendant), v. The Board of County Commissioners of the County of Laramie, Appellee (Intervenor/Plaintiff). The Board of County Commissioners of the County of Laramie, Appellant (Intervenor/Plaintiff), v. The City of Cheyenne, A Wyoming Municipal Corporation, Appellee (Defendant). The City of Cheyenne, A Wyoming Municipal Corporation, Appellant (Defendant), v. The Board of County Commissioners of the County of Laramie, Appellee (Intervenor/Plaintiff). Jean Cotton; Kathryne Cotton and Ruth Cotton, individually and as owners of Cotton Holdings, LLC, a Wyoming Limited Liability Company, Appellants (Plaintiffs), v. The City of Cheyenne’ A Wyoming Municipal Corporation, Appellee (Defendants). The City of Cheyenne, A Wyoming Municipal Corporation, Appellant (Defendant), v. Jean Cotton; Kathryne Cotton and Ruth Cotton, individually and as owners of Cotton Holdings, LLC, a Wyoming Limited Liability Company, Appellees (Plaintiffs).
    Nos. 03-50 to 03-56.
    Supreme Court of Wyoming.
    March 3, 2004.

      Representing Board of County Commissioners of the County of Laramie: Peter H. Froelicher, Laramie County Attorney, Cheyenne, Wyoming.
    Representing City of Cheyenne: W. Perry Dray and Nicholas G.J. Healey of Dray, Thomson & Dyekman, P.C., Cheyenne, Wyoming.
    Representing Jean Cotton; Kathryne Cotton, Ruth Cotton and Cotton Holdings, LLC: John M. Walker of Hickey, Mackey, Evans & Walker, Cheyenne, Wyoming.
    Representing East Whitney Limited Partnership and West Whitney Limited Partnership: Raymond W. Martin of Sundahl, Powers, Kapp & Martin, Cheyenne, Wyoming.
    Before HILL, C.J., and LEHMAN, KITE, and VOIGT, JJ., and JAMES, D.J.
   VOIGT, Justice.

[¶ 1] These combined appeals concern an annexation ordinance of the City of Cheyenne. The district court determined that both Laramie County and. certain private parties had standing to challenge the ordinance, but found in favor of the City of Cheyenne as to the annexation, itself. We affirm in part, reverse in part, and remand.

NATURE OF THE CASE

[¶2] East Whitney Limited Partnership and West Whitney Limited Partnership (the Whitney partnerships) petitioned the City of Cheyenne (the City) to annex property owned by them known as the Saddle Ridge Subdivision (Saddle Ridge). After conducting public hearings, the City passed an annexation ordinance. Prior to third reading of the ordinance, however, Jean Cotton, Ka-thryne Cotton and Ruth Cotton, individually and as members of Cotton Holdings, LLC (the Cottons), filed a declaratory judgment action in the district court seeking a declaration that the ordinance was void because Saddle Ridge was separated from the City’s nearest boundary by approximately one-quarter of a mile and was not, therefore, eligible for annexation. By stipulation of the parties, the Board of County Commissioners of Laramie County (the County) was allowed to intervene in the action as a plaintiff.

[¶ 3] After the annexation ordinance was adopted, both the Cottons and the County filed appeals in the district court pursuant to Wyo. Stat. Ann. § 15-1-409 (LexisNexis 2003) in which they contended that the City had abused its discretion, acted arbitrarily and capriciously, and acted not in accordance with law in finding Saddle Ridge eligible for annexation. Eventually, all parties sought summary judgment in all three cases (the single declaratory judgment action and the two statutory appeals).

[¶ 4] The district court declined to consolidate the three cases, but did join them for hearing purposes. By a single order entered on February 6, 2003, the district court denied summary judgment to the County and to the Cottons, and granted summary judgment to the City, finding, however, that both the County and the Cottons did have standing to challenge the annexation ordinance in both the declaratory judgment action and in the statutory appeals.

[If 5] These three district court cases have resulted in seven docketed appeals in this Court. The County separately appealed in both the declaratory judgment action and the statutory appeal, as did the Cottons. The City cross-appealed the standing issue in all three cases. The two appeals in which the County was appellant were consolidated, as were the two appeals in which the Cottons were appellant. All seven appeals were joined for oral argument and all will be addressed in this opinion.

ISSUES

[¶ 6] We will summarize and restate the various issues presented by the parties as follows:

1. Did the Cottons and the County have standing to challenge the City’s annexation of Saddle Ridge?

2. Was Saddle Ridge “contiguous with or adjacent to” the City and, therefore, eligible for annexation pursuant to Wyo. Stat. Ann. § 15-l-402(a)(iv) (LexisNexis 2001)?

STANDARD OF REVIEW

[¶ 7] Summary judgment motions are governed generally by W.R.C.P. 56, and specifically by the following language found in subsection (c) of the rule:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

W.R.C.P. 56(a) and (b) provide that summary judgment may be appropriate for either the plaintiff or the defendant in a declaratory judgment action. A summary judgment entered in a declaratory judgment action is subject to our usual standard for review of summary judgments. Wyoming Community College Com’n v. Casper Community College Dist., 2001 WY 86, ¶ 11, 31 P.3d 1242, 1247 (Wyo.2001); Fontaine v. Board of County Com’rs of Park County, 4 P.3d 890, 892 (Wyo.2000).

[¶8] “This Court reviews a summary judgment in the same light as the district court, using the same materials and following the same standards.” Markstein v. Countryside I, L.L.C., 2003 WY 122, ¶ 11, 77 P.3d 389, 393 (Wyo.2003). Where, as here, there are no contentions that genuine issues of material fact exist, our concern is strictly with application of the law. Wyoming Community College Com’n, 2001 WY 86, ¶ 11, 31 P.3d at 1247. We accord no deference to the district court’s conclusions on questions of law. Yeager v. Forbes, 2003 WY 134, ¶ 12, 78 P.3d 241, 246 (Wyo.2003).

“An issue of statutory interpretation presents a question of law. Butts v. Wyoming State Bd. of Architects, 911 P.2d 1062, 1065 (Wyo.1996); Parker Land & Cattle Co. v. Wyo. Game and Fish Comm’n, 845 P.2d 1040, 1042 (Wyo.1993). In interpreting statutes, we primarily determine the legislature’s intent. State ex rel. Motor Vehicle Div. v. Holtz, 674 P.2d 732, 736 (Wyo.1983). If the language is sufficiently clear, we do not resort to rules of construction. Id. We apply our general rule that we look to the ordinary and obvious meaning of a statute when the language is unambiguous. Parker Land, 845 P.2d at 1042.”

Fontaine, 4 P.3d at 894 (quoting Kirbens v. Wyoming State Bd. of Medicine, 992 P.2d 1056, 1060 (Wyo.1999)).

“ ‘If the language is sufficiently clear, there is no need to resort to rules of construction. When the language is not clear or is ambiguous, the court must look to the mischief the statute was intended to cure, the historical setting surrounding its enactment, the public policy of the state, the conclusions of law, and other prior and contemporaneous facts and circumstances, making use of the accepted rules of construction to ascertain a legislative intent that is reasonable and consistent.’ ”

Fontaine, 4 P.3d at 894-95 (quoting State ex rel. Motor Vehicle Div. v. Holtz, 674 P.2d 732, 736 (Wyo.1983) and Peterson v. Wyoming Game and Fish Com’n, 989 P.2d 113, 118 (Wyo.1999)).

DISCUSSION

Standing

[¶ 9] Wyo. Stat. Ann. § 15-1-409, set out in detail in a footnote earlier herein, allows “any landowner in the territory proposed to be annexed or any owner of real property in the annexing city or town, or utility [who] is aggrieved by the acts of the governing body” to appeal an annexation to the district court. The statute further provides that the court is to void the annexation if it “determines that the action taken was capricious or arbitrary, or if it appears from the evidence that the landowner’s right in his property is being unwarrantedly invaded, or that the governing body abused its discretion^]” Wyo. Stat. Ann § 15-1^409(b). Wyo. Stat. Ann. § 1-37-103 (LexisNexis 2003), also set out in detail in a footnote earlier herein, allows “[a]ny person ... whose rights, status or other legal relations are affected by ... a ... municipal ordinance” to file a declaratory judgment action. The statutory purpose for such an action is to “have any question of construction or validity arising under the instrument determined and obtain a declaration of rights, status or other legal relations.” Id. The district court found that the Cottons had standing under both statutes to challenge the City’s annexation of Saddle Ridge, but it did not enunciate the bases of its findings.

[¶ 10] One must meet two conditions to have standing to appeal an annexation ordinance pursuant to Wyo. Stat. Ann. § 15-1-409. First, one must be a landowner in the territory being annexed, or a real property owner within the annexing municipality, or a utility. And second, one must be aggrieved by the annexation. We can infer what the legislature intended by the word “aggrieved” by looking to the findings identified in the statute that would require the district court to void the ordinance: the act of annexation was capricious or arbitrary, the municipality abused its discretion, or the landowner’s right in his property was unwar-rantedly invaded. Wyo. Stat. Ann § 15 — 1— 409(b). We have characterized these findings as going to the merits of the annexation, not to the validity of the ordinance. Cox v. City of Cheyenne, 2003 WY 146, ¶ 26, 79 P.3d 500, 509 (Wyo.2003). Nevertheless, while it includes as one option proof of harm to a particular property right, the legislative concept of “aggrieved” in this statute clearly incorporates the broader public interest in preventing unreasonable actions by the governing body. Resident real property owners do not have to be specially aggrieved in that ownership; they can be aggrieved simply by a municipality’s failure to comply with the annexation statutes. Kroenlein v. Eddington, 2001 WY 115, ¶ 11, 35 P.3d 1207, 1211 (Wyo.2001).

[¶ 11] As we stated earlier, the district court’s summary judgment order did not explain its standing decision. Nevertheless, we may affirm the district court under any proper legal ground appearing in the record. Kroenlein, 2001 WY 115, ¶ 8, 35 P.3d at 1211; Wyoming Community College Com’n, 2001 WY 86, ¶ 11, 31 P.3d at 1247. In that regard, the Cottons’ standing claim is two-pronged: first, they contend that their property adjacent to Saddle Ridge is negatively affected by the annexation because they no longer will be able to repair or replace their septic system; and second, they claim to own real property within the City. If either of these contentions is sustained by the record, the district court must be affirmed on the issue of the Cottons’ standing to challenge the annexation ordinance.

[¶ 12] The City argues that the Cottons are not real property owners within the City because the property they claim to own is actually owned by a separate legal entity, Avenues Pet Clinic, LLC. Further, relying on Matter of Various Water Rights in Lake DeSmet Reservoir, Bd. of Control, Docket No. II-77-2-1, 623 P.2d 764, 769 (Wyo.1981), the City contends that Wyoming’s standing principles were designed to weed out the type of speculative future injury alleged in the Cottons’ septic system claim.

[¶ 13] We will affirm the conclusion of the district court that the Cottons have standing to challenge the City’s annexation of Saddle Ridge under Wyo. Stat. Ann. § 15 — 1— 409. The City does not dispute the fact that Jean Cotton, Kathryne Cotton, and Ruth Cotton own Cotton Holdings, LLC, and that Cotton Holdings, LLC, owns Avenues Pet Clinic, LLC. The individual Cottons and Cotton Holdings, LLC, áre all named parties in these actions. The fact that the real property located within the City is technically owned by their wholly owned limited liability company is not sufficient, in our view, to thwart the purposes of our standing jurisprudence or the statutory appeal process. The individual Cottons and Cotton Holdings, LLC, have the same interest in the matter as does Avenues Pet Clinic, LLC, so they have pursued the matter with equal vigor.

[¶ 14] We see no need to revisit in detail the law of standing as it generally applies to the separate question of the County’s standing to challenge the City’s annexation ordinance. Suffice it to say, in regard to Wyo. Stat. Ann. § 15-1-409, that the County unquestionably owns real property within the City and would be aggrieved to the same extent as any other such landowner if the City failed to comply with the annexation statutes. See Kroenlein, 2001 WY 115, ¶ 11, 35 P.3d at 1211 (residents have a strong interest in seeing compliance with the law). Wyoming counties have the statutory right to sue, and we have been shown no constitutional or statutory obstacle in this state to the challenge of a city annexation ordinance by a county. Wyo. Stat. Ann. § 18 — 2—101(a)(i) (LexisNexis 2003); see Timothy M. Hall, Annotation, Right of One Governmental Subdivision to Challenge Annexation Proceedings by Another Such Subdivision, 17 A.L.R.5th 195, § 4 (1994). We affirm the district court’s conclusion that the County had standing to appeal the City’s annexation of Saddle Ridge.

[¶ 15] The City presents one additional argument against the County having standing in this case. The City contends that, as a party to the 1983 “Section 201 Agreement” described previously in a footnote herein, the County could not be aggrieved by the annexation of Saddle Ridge. Succinctly stated, it is the City’s position that the Section 201 Agreement contemplates exactly the type of non-contiguous annexation exemplified by the annexation of Saddle Ridge. The County argues, to the contrary, that septic system exceptions in the agreement expressly recognize that property must be contiguous to be annexed to the City.

[¶ 16] The district court’s summary judgment order did not directly address the impact of the Section 201 Agreement upon the County’s standing. Nevertheless, inasmuch as the County was found to have standing, this issue must have been resolved against the City. We will affirm that conclusion because we do not have sufficient grounds to do otherwise. The Section 201 Agreement has not been definitely adjudicated, and its terms certainly appear to be capable of being interpreted as by the County, and apparently, the district court. Furthermore, there has been no showing that, as a matter of law, the County’s participation in such an agreement would negate its standing under Wyo. Stat. Ann. § 15-l-409(a) as a real property owner within the City.

[¶ 17] Because we have concluded that both the Cottons and the County had standing to pursue their statutory appeal rights under Wyo. Stat. Ann. § 15-1-409, and because resolution of the statutory appeals will fully dispose of this case, we will not reach the question of standing under the Uniform Declaratory Judgment Act.

“Contiguous With or Adjacent To”

[¶ 18] Annexation is a legislative function that has been delegated to the municipality. In exercising the power of annexation, the municipality is bound by the statutes conferring the power. Scarlett v. Town Council, Town of Jackson, Teton County, 463 P.2d 26, 30 (Wyo.1969). In turn, when called upon to review a municipal annexation ordinance, the courts are limited to determining whether the municipality complied with the statutes and whether the annexation was reasonable. 56 Am.Jur.2d Municipal Corporations §§ 47-48 (2000). Specifically, judicial review may be required “where the legislative discretion pertaining to annexable areas has not been fully or clearly expressed, or where legislative directions or mandates require clarification, interpretation or definition.” McQuillin Mun. Corp. § 7.18 (3d ed.1996) (footnote omitted).

[¶ 19] Wyoming’s annexation statutes are found at Wyo. Stat. Ann. § 15 — 1— 401, et seq. (LexisNexis 2003). The specific issue of the present case results from the requirement of Wyo. Stat. Ann. § 15 — 1— 402(a)(iv) that, to be eligible for annexation, land must be “contiguous with or adjacent to” the annexing municipality. The question is whether non-contiguous land lying near a municipality may be annexed.

[¶20] Our standard rules of statutory construction require us first to seek the legislature’s intent by looking to the common meaning of the words used in the statute. Merriamr-Webster’s Collegiate Dictionary (10th ed.1999) contains the following definitions, in relevant part, at page 250 and page 14, respectively:

contiguous ... 1: being in actual contact: touching along a boundary or at a point
adjacent ... la: not distant: nearby ... b: having a common endpoint or border
syn adjacent, adjoining, contiguous, juxtaposed mean being in close proximity. Adjacent may or may not imply contact but always implies absence of anything of the same kind in between <a house with an adjacent garage>.... Contiguous implies having contact on all or most of one side < offices in all 48 contiguous states >.

(Some emphasis added.) Webster’s Third New International Dictionary (1993) contains similar definitions at pages 492 and 26, respectively:

contiguous ... la (1): touching along boundaries often for considerable distances ... b: next or adjoining with nothing similar intervening ... c: nearby, close: not distant ... d: continuous, unbroken, uninterrupted: touching or connected throughout ... 2 a: immediately preceding or following in time or sequence: without intervening interval or item ... b: near in time or sequence syn see adjacent
adjacent ... la: not distant or far off ...: nearby but not touching ... b: relatively near and having nothing of the same kind intervening: having a common border: abutting, touching: living nearby or sitting or standing relatively near or close together ... c: immediately preceding or following with nothing of the same kind intervening ... syn adjoining, abutting, contiguous, conterminous, coterminous, juxtaposed: adjacent is sometimes merely a synonym for near or close to ... Applied to things of the same type, it indicates either side-by-side proximity or lack of anything of the same nature intervening ... Contiguous shows variable usage but is likely to suggest touching along a dividing line; it may indicate an unbroken continuity ...

[¶ 21] The controversy in this case, although spawning hundreds of pages of legal argument, is simple. The County and the Cottons contend that the legislature would not have used the word “contiguous,” meaning “touching,” if annexable land only had to be “nearby.” The City responds that the legislature would not have used the word “adjacent,” meaning “nearby,” if annexable land had to be “touching.” We will begin our resolution of the matter with the observation that use of these particular two words in this particular context, without defining either word, renders the statute ambiguous, thereby requiring interpretation.

[¶ 22] This issue is not unique to Wyoming, inasmuch as many states have the same language in their annexation statutes. See McQuillin Mun. Corp., supra, § 7.20; 56 Am.Jur.2d, supra, §§ 51-52; and Erwin S. Barbre, Annotation, What Land is Contiguous or Adjacent to Municipality So As To Be Subject to Annexation, 49 A.L.R.3d 589 (1973). While there is not unanimity in defining these terms, there does seem to be a general rule as to their interpretation:

In many jurisdictions, territory to be annexed must be contiguous or adjacent to the annexing municipality. As used in this context, the words “contiguous” and “adjacent” are considered to be synonymous. In the absence of statutory definition of these terms, it seems to be agreed that at a minimum the terms require that the boundaries of the annexing municipality and the territory must touch, with some courts indicating that there must be substantial physical contact between the municipality and the territory. It should be noted, however, that many courts have recognized, either expressly or by implication, that the meaning of these terms, as used in the annexation statutes, is flexible and may vary from case to case. And, of course, these judicially manufactured definitions are subject to change by annexation statutes which attempt to define the terms “contiguous” and “adjacent.”

Barbre, supra, 49 A.L.R.3d 589, 593-94, § 2[a] (footnotes omitted).

[¶ 23] As we will explain further, we conclude that, by limiting annexation to lands that are either contiguous or adjacent, the legislature intended to limit annexation to lands sharing a common boundary with the municipality or touching at some point, with the exception of lands that are separated from the municipality only by those natural or artificial “barriers” listed in Wyo. Stat. Ann. § 15-H02(b). This conclusion is consistent with what appears to be the majority rule, it is consistent with what this Court said in In re West Laramie, 457 P.2d 498, 501 (Wyo.1969) (“[ujnder our statute the only requirement with respect to the scope and extent of the area to be annexed is that it must be contiguous to the annexing city or town”), it is consistent with the opinion of the Attorney General of the State of Wyoming, and it is consistent with reason and good sense.

[¶ 24] In one sense, both sides in this controversy are correct; the legislature would not have needed both terms — “contiguous with” and “adjacent to” — if the terms were meant to be precisely synonymous. Likewise, the legislature would not have used both terms in the alternative if they were meant to define mutually exclusive situations. The most likely intent of the legislature was that the terms were to be given their common meaning; that is, the lands to be annexed must geographically touch the municipality to some extent; with the contiguity requirement being satisfied by the slighter touching contemplated by the word “adjacent.”

[¶ 25] If the City’s interpretation of the statute — that lands need only be “nearby” — is correct, there would be no reason for the exceptions that are spelled out in Wyo. Stat. Ann. § 15-l-402(b). If “nearby” lands that do not touch the municipal boundaries may be annexed, there is no reason specially to permit annexation of lands separated from the municipality by roads, rivers, and the like. In interpreting statutes, we are to read related laws together and we are to give effect to all the words used. In re Estate of Seader, 2003 WY 119, ¶ 23, 76 P.3d 1236, 1243-44 (Wyo.2003) (quoting Worcester v. State, 2001 WY 82, ¶ 13, 30 P.3d 47, 52 (Wyo.2001)).

[¶ 26] We also note that the common dictionary definitions of both “contiguous” and “adjacent” incorporate the concept of there being nothing similar intervening. For example, buildings are neither contiguous with nor adjacent to one another if there is another building between them. Similarly, land is neither contiguous with nor adjacent to a municipality where the land is separated from the municipal boundaries by anything other than a road, river, or the like.

[¶ 27] We interpret statutes in their context; that is, with consideration given to other statutes in. pari materia and in the light of their object, purpose and public policy, Petra Energy, Inc. v. Department of Revenue, State of Wyo., 6 P.3d 1267, 1270 (Wyo.2000); Wyoming Ins. Guar. Ass’n v. Woods, 888 P.2d 192, 197 (Wyo.1994). We ascribe to statutes a reasonable intent. Attletweedt v. State, 684 P.2d 812, 814 (Wyo.1984); In re Romer, 436 P.2d 956, 958 (Wyo.1968). Application of these principles to Wyoming’s annexation statutes leads us to the conclusion that the pervasive tone or tenor of the statutes is strictly to limit the ability of municipalities to annex territory. The statutes prescribe a carefully delineated annexation process, limited by numerous mandated findings. The most reasonable interpretation of the words “contiguous with or adjacent to” in this context is that the legislature intended to limit annexation to lands touching a municipality’s boundaries. There is no suggestion in the entire statutory scheme that the legislature intended to vest municipalities with the discretion to determine what land is “adjacent” — meaning “nearby” — on a case-by-case basis. The result of such an interpretation could be “crazy quilt” or “leap frog” annexation that would run counter to the concerns expressed in the statutory mandates.

[¶ 28] The courts in the following cases have all held that, in the annexation context, the words “contiguous” and “adjacent” are synonymous and require that the boundaries of the municipality and the annexed land must touch, or, at least, must not be separated by anything of like kind: Hillman v. City of Pocatello, 74 Idaho 69, 71, 256 P.2d 1072, 1073 (1953), criticized on other grounds by Alexander v. Trustees of Village of Middleton, 92 Idaho 823, 452 P.2d 50, 52-54 (1969) (common meaning of both words is conterminous or abutting and use of adjacent does not contemplate annexation of non-contiguous areas); Ridings v. City of Owensboro, 383 S.W.2d 510, 511 (Ky.1964) (requirement of contiguity is inherent in annexation statutes because of concept of a city being a geographical unit); City of St. Ann v. Spanos, 490 S.W.2d 653, 656 (Mo.App.1973) (in defining adjacent, the word “nearby” must be qualified by the concept of having nothing of the same kind intervening); Johnson v. City of Hastings, 241 Neb. 291, 488 N.W.2d 20, 23-24 (1992) (contiguous and adjacent both require substantially contiguous boundaries); Hawks v. Town of Valdese, 299 N.C. 1, 261 S.E.2d 90, 97 (1980) (adjacent means contiguous or abutting); City of Middletown v. McGee, 39 Ohio St.3d 284, 530 N.E.2d 902, 905 (1988) (contiguous, adjacent, and adjoining are synonymous and all require contiguity to a degree beyond that created by strip or corridor annexation); City of Ada v. Whitaker, 1949 OK 266, 202 Okla. 249, 212 P.2d 482, 483-84 (1949) (“adjacent to” is synonymous with “abutting on” and requires that there be nothing of the same kind between); In re Sadler, 142 Pa. 511, 21 A. 978, 979 (1891) (adjacency of a tract of land is satisfied if one of the lots of the tract is contiguous with the municipality's boundary); St. Andrews Public Service Dist. v. City Council of Charleston, 339 S.C. 320, 529 S.E.2d 64, 66 (2000), rev’d on other grounds, 349 S.C. 602, 564 S.E.2d 647 (2002) (contiguous, adjacent, and adjoining are synonymous and ordinarily mean touching, but such is not required where the areas are incidentally separated by a road, railway or waterway); City of Pasadena v. State ex rel. City of Houston, 442 S.W.2d 325, 328 (Tex.1969) (question of adjacency is a question of law; adjacent means contiguous and “in the neighborhood of or in the vicinity,” so it cannot be satisfied by a strip annexation); Town of Lake v. City of Milwaukee, 255 Wis. 419, 39 N.W.2d 376, 378 (1949) (contiguous and adjacent are synonymous).

[¶29] In Barbre, supra, 49 A.L.R.3d at 603, a specific study of the words “contiguous” and “adjacent” in the annexation context, the author states that “[i]n none of the cases within the scope of this annotation, in the absence of a statutory definition to the contrary, has a court specifically said that the borders of the territory and the municipality do not have to touch at all.” The City contends, to the contrary, that several courts have found adjacent to mean only “nearby” and have not required geographical touching. A review of the cases cited by the City generally reveals, however, a different context, a holding not precisely on point, or even support for the proposition that contiguous and adjacent are synonymous: San Dieguito Partnership v. City of San Diego, 7 Cal.App.4th 748, 9 Cal.Rptr.2d 440, 445-46 (1992) (adjacent means nearby, not touching, in a subdivision statute allowing an exemption for lot line adjustments); Anderson Union High Sell. Dist. v. Schreder, 56 Cal.App.3d 453, 128 Cal.Rptr. 529, 534-35 (1976) (school districts not contiguous to forest preserve were adjacent to the reserve for purpose of certain specialized funding); Belmont Fire Protection Dist. v. Village of Downers Grove, 92 Ill.App.3d 682, 48 Ill.Dec. 261, 416 N.E.2d 292, 295 (1981) (to be eligible for annexation, territory must touch or adjoin the municipality “in a reasonably substantial physical sense”); In re Annexation to the Village of Wadsworth, 65 Ill.2d 148, 2 Ill.Dec. 337, 357 N.E.2d 504, 505-06 (1976) (village could not avoid statutory mandate that adjacent highways be annexed by leaving a ten-foot buffer strip); City of Hutchinson v. Danley, 88 Kan. 437, 129 P. 163, 164 (1913) (as used in statute governing vacation of town sites, reversion of public areas to adjacent landowners not affected by intervening street or alley); Board of Education of City of Ottawa v. Jacobus, 83 Kan. 778, 112 P. 612, 613 (1911) (definition of adjacent in statute depends upon context and purpose; adjacent means nearby, not necessarily touching in statute allowing city to attach adjacent territory for school purposes); State v. Kansas City, 50 Kan. 508, 31 P. 1100, 1103 (1893) (statute authorizing consolidation of cities requires adjacency, defined as not more than three-fourths of a mile apart); Grudnosky v. Bislow, 251 Minn. 496, 88 N.W.2d 847, 851-52 (1958) (in statute allowing higher salaries for officials in fourth-class cities adjacent to first-class cities, adjacency did not require geographical contiguity, but a community of interest); McLemore v. Yocona Tallahatchie Drainage Dist. No. 1, 129 Miss. 97, 91 So. 390, 391 (1922) (in statute authorizing enlargement of boundaries of drainage district to “adjoining or adjacent” lands, land to be added need not be geographically contiguous, just “lying close by”); City of West Fargo v. City of Fargo, 251 N.W.2d 918, 920 (N.D.1977) (in case involving annexation contest between two cities, court comments that tract could not have been annexed to city to which it was not adjacent, but that the two later became contiguous); City of Lawrenceburg v. Maryland Cas. Co., 16 Tenn.App. 238, 64 S.W.2d 69, 71 (1933) (in insurance dispute, adjacent found not to import physical contact unless preceded by a modifier such as “immediately”); City of Waco v. City of McGregor, 523 S.W.2d 649, 653 (Tex.1975) (adjacent usually means close by and not necessarily touching, but statute defined it in this instance to mean that territory within the exclusive extraterritorial jurisdiction of one municipality is not, as a matter of law, adjacent to any other municipality).

[¶ 30] We agree not only with the result in the cases finding adjacent and contiguous to be synonymous in the annexation context, but with their reasoning as well. The public policy behind geographically limited municipal annexation was well stated in Hawks, 261 S.E.2d at 97:

Contiguity has always been viewed as synonymous with the “legal as well as the popular idea of a municipal corporation in this country,” which is one of “oneness, community, locality, vicinity; a collective body, not several bodies; a collective body of inhabitants — that is, a body of people collected or gathered together in one mass, not separated into distinct masses, and having a community of interest because residents of the same place, not different places. So, as to territorial extent, the idea of a city is one of unity, not of plurality, of compactness or contiguity, not separation or segregation.” 56 Am.Jur.2d, Municipal Corporations § 69, quoting City of Denver v. Coulehan, 20 Colo. 471, 39 P. 425 (1894). Contiguity, then, is an essen-tiál component of the traditional concept of a municipal corporation, which is envisioned as a governmental unit capable of providing essential governmental services to residents within compact borders on a scale adequate to insure “the protection of health, safety and welfare in areas being intensively used for residential, commercial, industrial, institutional and government purposes or in areas undergoing such development.” G.S. 160A-33(2).
The element of contiguity helps to preserve the economic and political viability of municipal government. The costly package of services provided by municipal government can be economically maintained only within the compact boundaries fostered by the contiguity requirement. Conversely, the requirement of contiguity discourages prohibitively expensive extension of municipal services to noncontiguous areas where municipal services cannot be economically supplied. Moreover, it goes without saying that, from a political standpoint, a compact, contiguous area is more easily governed than one split into diverse, noncontiguous enclaves. Vicinity engenders a unified sense of community identity which facilitates the formation of the consensus essential to effective government. See generally, City of Denver v. Coulehan, supra.

[¶ 31] The function of this Court in reviewing statutes is not, of course, to determine public policy. Rather, our function is to interpret statutes so as to identify reasonable legislative intent. Application of that principle to a review of Wyoming’s municipal annexation statutes, where the authority granted to municipalities is strictly limited, leads to the conclusion that the phrase “contiguous with or adjacent to” in Wyo. Stat. Ann. § 15-l-402(a)(iv) was legislatively intended to require that the boundaries of the municipality and the land proposed for annexation must touch to some substantial degree, although there need not necessarily be a lengthy shared border.

CONCLUSION

[¶ 32] As real property owners within the City, the County and the Cottons had standing under Wyo. Stat. Ann. § 15-1-409 to challenge the City’s annexation of Saddle Ridge. We affirm the decision of the district court to that extent. Because the boundaries of the City and Saddle Ridge do not touch, and because the City and Saddle Ridge are separated by “something of like kind” as opposed to something defined in Wyo. Stat. Ann. § 15-l-402(b), the City was without legal authority to annex Saddle Ridge and its ordinance is void and of no effect. We reverse the ruling of the district court in that respect and remand to the district court for entry of an order consistent herewith.

      . Wyo. Stat. Ann. § 1-37-103 (LexisNexis 2003) states:
      Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by the Wyoming constitution or by a statute, municipal ordinance, contract or franchise, may have any question of construction or validity arising under the instrument determined and obtain a declaration of rights, status or other legal relations.

      . Wyo. Stat. Ann. § 15-1-409 states:
      (a)If any landowner in the territoiy proposed to be annexed or any owner of real property in the annexing city or town, or utility is aggrieved by the acts of the governing body, he may appeal to the district court for a review of the acts or findings thereof.
      (b) If the court determines that the action taken was capricious or arbitrary, or if it appears from the evidence that the landowner’s right in his property is being unwarrantedly invaded or that the governing body abused its discretion, the court shall declare the annexing ordinance void. If the court determines the action of the governing body was proper and valid, it shall sustain the ordinance.
      (c) All proceedings to review the findings and the decisions of the governing body shall be brought within ten (10) days of the effective date of the annexation ordinance, and if not brought within that time are forever barred.

      . The Whitney partnerships became defendants in the declaratory judgment action by an amended complaint filed August 23, 2002. They were not named as parties in the statutory appeals nor did they file any separate summary judgment motions. Furthermore, inasmuch as they did not file a notice of appeal in this Court, they-have been improperly aligned as an appellant in the City's cross appeals.

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

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

      . In 1983, the County, the City, the South Cheyenne Water and Sewer District, and the City’s Board of Public Utilities entered into an agreement under Section 201 of the Clean Water Act, 33 U.S.C. § 1281, to coordinate the treatment of wastewater. The agreement establishes a perimeter area around the city where, under certain conditions, septic systems may not be repaired or replaced and the landowner must obtain city sewer and water service.

      . See Cox, 2003 WY 146, 79 P.3d 500 for a very recent analysis of the relationship between Wyo. Stat. Ann. § 15-1-409 and the Uniform Declaratory Judgment Act.

      . Wyo. Stat. Ann. § 15 — 1—402(b) states:
      Contiguity will not be adversely affected by the existence of a platted street or alley, a public or private right-of-way, a public or private transportation right-of-way, a lake, stream, reservoir or other natural or artificial waterway located between the annexing city or town and the land sought to be annexed.

      . See Wyoming Attorney General Opinion No. 83-021, 117-19 (December 19, 1983) ("[w]here statutory provisions have made no attempt, as in Wyoming, to define the terms 'contiguous' and 'adjacent,' the courts have generally held such terms to require a touching or actual contact between the annexing municipality and the lands to be annexed.... Most courts hold contiguity is more than mere technical touching and requires reasonably substantial physical contact between the territory and the municipality.... This concern for something more than mere physical touching is reflected in the multiple requirements of the Wyoming statute....”). (Emphasis in original.)

      . While the word “or" is generally used in its disjunctive sense, it may simply indicate interchangeable synonyms. Goglio v. Star Valley Ranch Ass’n., 2002 WY 94, ¶ 27, 48 P.3d 1072, 1082 (Wyo.2002). One definition of "or" contained in Webster's Third New International Dictionary, supra, at 1585 is "the synonymous, equivalent, or substitutive character of two words or phrases <fell over a precipice [or] cliff> ....”

      . Wyo. Stat. Ann. § 15-l-402(a), for example, in addition to requiring that the land to be annexed be contiguous with or adjacent to the municipality, also requires other specific findings concerning (1) health, safety and welfare; (2) natural, geographical, economical and social development; (3) logical and feasible extension of public services; and (4) due process. Similarly, Wyo. Stat. Ann. § 15-l-402(c) requires the municipality to prepare a report concerning proposed boundaries, infrastructure needs and timetables, and fees and tax estimates.

      . The issue of strip or corridor annexation is not presently before this Court. For one court's view that such violate the principles enunciated in Hawks, see City of Middletown, 530 N.E.2d at 905.


author: KITE, Justice.

text:
    2004 WY 22
    Josephine Lovato HUTCHINS and Timothy M. Hernandez, Appellants (Defendants), v. PAYLESS AUTO SALES, INC., a Wyoming corporation, Appellee (Plaintiff).
    No. 03-82.
    Supreme Court of Wyoming.
    March 11, 2004.
    See also 2002 WY 8, 38 P.3d 1057.

      Representing Appellant: Georg Jensen, Cheyenne, Wyoming.
    Representing Appellee: Wendy Curtis Pal-en of Patton & Davison, Cheyenne, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   KITE, Justice.

[¶ 1] Josephine Lovato Hutchins and Timothy M. Hernandez (appellants) appeal from the district court’s order confirming Payless Auto Sales, Inc.’s (Payless) purchase of real property pursuant to Wyoming’s partition statutes. The appellants claim that the district court erred by refusing to compensate them for waste, rents, and improvements to the property. We affirm the district court’s decision, although on different grounds than those expressed by the district court.

ISSUES

[¶ 2] The appellants phrase the issue on appeal as follows:

Did the court err in failing to give any consideration to the defendants’ defenses and counterclaims for partition in accordance with the parties’ relative interests including issues regarding use, waste, contribution and owelty in allowing an[d] confirming the property purchase by plaintiff?

[¶ 3] Payless phrases the appellate issue as a statement:

The district court’s confirmation of the election to purchase was proper under Wyoming’s partition statutes and the district court’s factual determination of the respective rights of the parties was not erroneous[.]

FACTS

[¶ 4] The underlying facts of this dispute are set forth in Hutchins v. Payless Auto Sales, Inc., 2002 WY 8, ¶¶ 3-5, 38 P.3d 1057, ¶¶ 3-5 (Wyo.2002) (hereinafter referred to as Hutchins I). In 1993, Ms. Hutchins recorded a quitclaim deed conveying real property located in Cheyenne to herself and her daughter, Sandra Hutchins McDonald, as joint tenants with right of survivorship. Hutchins I, ¶ 3. Subsequent to the conveyance, Payless obtained a default judgment against Ms. McDonald and her husband. Id. Ms. Hutchins and Ms. McDonald thereafter conveyed the property by quitclaim deed to Ms. Hutchins and her son, Timothy M. Hernandez, as joint tenants with right of surviv-orship. Id.

[¶ 5] Payless sought to collect upon its judgment against the McDonalds by foreclosing upon the real property. Hutchins I, ¶ 4. Ms. Hutchins attempted to defeat the foreclosure action by asking the district court to reform the quitclaim deeds on the basis of mutual mistake. Id. The district court refused to reform the deeds and granted summary judgment in favor of Payless on its foreclosure claim. Hutchins I, ¶ 5. Ms. Hutchins appealed the district court’s order on summary judgment, and this Court subsequently affirmed. Hutchins I, ¶ 1.

[¶ 6] At the subsequent foreclosure sale, Payless purchased Ms. McDonald’s unencumbered, undivided one-half interest in the real property. Ms. McDonald did not redeem the property, and Payless applied for and received a Sheriffs Deed for a one-half interest in the property. Payless then filed the instant action to partition the real property pursuant to Wyo. Stat. Ann. §§ 1-32-101 et seq. (LexisNexis 2003). The appellants filed a counterclaim, setting out three causes of action against Payless. In Count 1, the appellants sought a declaratory judgment on the validity and scope of Payless’ interest in the real property. In Count 2, the appellants requested that the district court order Pay-less to compensate them, under various equitable principles, for waste, rents, and improvements to the real property. Count 3 set forth a claim for partition of the real property. Payless filed a motion to dismiss the counterclaim. Its motion was accompanied by documents other than the pleadings, resulting in a conversion of the motion to dismiss to a motion for summary judgment under Wyo. R. Civ. P. 56. The district court dismissed Counts 1 and 2 on the basis that the appellants were collaterally estopped from asserting the claims by the rulings in Hutchins I.

[¶ 7] Payless filed a motion for summary judgment, asking the court to order, as a matter of law, that the property be partitioned in accordance with Wyo. Stat. Ann. § 1-32-109 (LexisNexis 2003). The parties agreed that, because the property included a residential lot and home, it could not be physically divided. The appellants, however, contested Payless’ motion for summary judgment, asserting that the district court must compensate them for Ms. McDonald’s waste and use of the property and the improvements they had made to the property. The appellants attached Ms. Hutchins’ affidavit to their response.

[¶ 8] The district court granted Payless’ summary judgment motion and ordered that the property be partitioned by sale. The court appointed an appraiser and directed him to submit a valuation of the property to the district court for approval. The district court further ordered that, “within 30 days of the Court[’]s Order approving the valuation of the property by the appraiser, any party seeking to purchase the property at the appraised value in accordance with Wyo. Stat. § 1-32-109 shall file a written election to purchase, accompanied by the down payment and security as required by Wyo. Stat. § 1-32-110.”

[¶ 9] The appraiser valued the property at $21,500, and Payless filed its Election to Buy and Motion for Confirmation, together with $10,750, with the District Court. The appellants objected to Payless’ motion for confirmation of the sale, once again, claiming a right to compensation for Ms. McDonald’s damage to and use of the property. The district court held a hearing and issued an order confirming the sale of the property to Payless for one-half of the appraised value. The record on appeal does not include a transcript of the hearing and the Order Confirming Property Purchase does not revisit the appellants’ claims for improvements, rents, and waste. The appellants subsequently appealed.

DISCUSSION

[¶ 10] The appellants challenge the district court’s refusal to credit them for improvements, rents, and waste to the real property in the partition action. The district court’s rulings on this issue are encompassed in its dismissal of Count 2 of the counterclaim and its subsequent grant of summary judgment in favor of Payless. In this procedural context, it is appropriate for us to apply our well-established standard of review for summary judgments.

[¶ 11] In reviewing a summary judgment, we apply the same standards as the trial court, without affording any deference to the trial court’s decisions on issues of law. Wilder v. Cody Country Chamber of Commerce, 868 P.2d 211, 216 (Wyo.1994). A summary judgment is appropriate if the record, when viewed in the light most favorable to the non-moving party, reveals that no genuine issues of material fact exist and the prevailing party is entitled to judgment as a matter of law. Ahrenholtz v. Laramie Economic Development Corporation, 2003 WY 149, ¶ 16, 79 P.3d 511, ¶ 16 (Wyo.2003); Wor- ley v. Wyoming Bottling Co., Inc., 1 P.3d 615, 620 (Wyo.2000); W.R.C.P. 56(c). A fact is material if it establishes or refutes an essential element of a claim or defense. Ahrenholtz, ¶ 16; Tidwell v. HOM, Inc., 896 P.2d 1322, 1324 (Wyo.1995).

[¶ 12] Furthermore, even if we do not agree with the district court’s reasoning, we will affirm the district court’s summary judgment decision if there is any legal basis in the record to support it. Grose v. Sauvageau, 942 P.2d 398, 402 (Wyo.1997).

[¶ 13] Sections 1-32-101 et seq. set forth the procedures for partitioning real property between tenants in common or coparceners. Section 1-32-109 applies when the real property cannot be divided in kind without causing manifest injury to its value. In the Matter of the Estate of Sorenson, 9 P.3d 259, 263 (Wyo.2000). Under that statute, a just valuation of the property is ordered and “[i]f the court approves the return and one (1) or more of the parties elects to take the estate at such appraised value, it shall be adjudged to him upon his paying to the parties their proportion of the appraised value according to their respective rights.” Section 1-32-109.

[¶ 14] Wyo. Stat. Ann. § 1-32-119 (Lexis-Nexis 2003) allows one tenant in common or coparcener to recover his share of rents and profits from a cotenant and to maintain an action of waste against another. Although the appellants did not refer to § 1-32-119 in their pleadings, they did claim they were entitled to similar equitable relief.

[¶ 15] The district court held that the appellants’ claim was barred by the doctrine of collateral estoppel. The district court did not, however, employ the analysis typically applied to determine whether a party is collaterally estopped from pursuing a claim. The elements of collateral estoppel are:

(1) the issue decided in the prior adjudication is identical with the issue presented in the present action; (2) the prior adjudication resulted in a judgment on the merits; (3) the party against whom collateral es-toppel is asserted was a party or in privity with a party to the prior adjudication; and (4) the party against whom collateral es-toppel is asserted had a full and fair opportunity to litigate the issue in the prior proceeding.

Pokorny v. Salas, 2003 WY 159, ¶ 15, 81 P.3d 171, ¶ 15 (Wyo.2003). The issues litigated in Hutchins I included the nature of Ms. McDonald’s interest in the property and Pay-less’ right to foreclose upon that interest. Hutchins I, ¶2. Therefore, appellants were collaterally estopped from re-litigating those issues as they were expressed in Count 1. However, the appellants’ claims for compensation for waste, improvements, and rents, raised in Count 2, were not adjudicated in that action. Consequently, the doctrine of collateral estoppel does not prohibit the appellants from raising those issues in this action.

[¶ 16] Nevertheless, the district court’s decision to grant summary judgment in favor of Payless on those issues was correct. The only evidence in the record on the claims for waste, improvements, and rents is found in an affidavit executed by Ms. Hutch-ins. In that affidavit, Ms. Hutchins made bald assertions that Ms. McDonald had damaged the property and did not pay rents and that Ms. Hutchins had expended funds in repairing and improving the property. Appellants provide no authority for their claim that Payless is somehow liable for waste or loss of rent caused by its predecessor in interest, Ms. McDonald. On appellants’ claim for contribution for the improvements and repairs made to the property, Ms. Hutchins did not specify the dates or circumstances of the damages, repairs, or improvements. If she had provided evidence that she made improvements after Payless foreclosed and became a co-tenant in the property, she could have maintained a claim pursuant to § 1-32-119. However, without such a showing, Ms. Hutchins’ affidavit was insufficient to establish a material issue of fact on the claim that she was entitled to reimbursement for improvements to the property. See e.g., Ahrenholtz, ¶ 25; Hutchins I, ¶ 21. The District Court’s ultimate decision to grant summary judgment in favor of Payless was, therefore, correct.

[¶ 17] Finally, the appellants claimed that they were entitled to be compensated under the common law doctrine of owelty. Owelty is generally defined as: “Equality. An equalization charge.” Black’s Law Dictionary, 996 (5th ed.1979). “Owelty of partition” is defined as:

A sum of money paid by one of two copar-ceners or cotenants to the other, when a partition has been effected between them, but, the land not being susceptible of division into exactly equal shares, such payment is required to make the portions respectively assigned to them of equal value.

Id.

[¶ 18] The Wyoming Supreme Court has never had an occasion to determine whether the doctrine of owelty is applicable to partitions of real property in this state. Owelty is used in other states to equalize the parties’ interests when a physical or in-kind partition of the real property is made. See e.g., Kravik v. Lewis, 213 Mont. 448, 691 P.2d 1373, 1376-77 (1984); Pino v. Sanchez, 98 N.M. 150, 646 P.2d 577, 577-78 (1982). In this case, both parties agreed that, because the property included a home on a residential lot, an in-kind partition was impossible. This is not, therefore, the case for this Court to decide whether or not owelty should be recognized in Wyoming.

[¶ 19] Affirmed.


author: GOLDEN, Justice.

text:
    2004 WY 23
    Elsadig Fouad SAMI, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
    Nos. 02-156, 02-234.
    Supreme Court of Wyoming.
    March 12, 2004.

      Representing Appellant: Donald J. Ris-sler, Riverton, Wyoming.
    Representing Appellee: Patrick J. Crank, Wyoming Attorney General; Paul S. Rehu-rek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Daniel M. Fetsco, Assistant Attorney General, Cheyenne, Wyoming.
    Before HILL, C.J., and GOLDEN, LEHMAN, KITE, and VOIGT, JJ.
   GOLDEN, Justice.

[¶ 1] Appellant Elsadig Fouad Sami challenges the sufficiency of the factual basis underlying his guilty plea to felonious restraint and the sufficiency of the evidence to revoke his probation. We find that the factual basis was sufficient to support Sami’s guilty plea and the evidence was sufficient to revoke his probation.

[¶ 2] The order of conviction is affirmed.

ISSUES

[¶ 3] Sami presents this statement of the issues for our review:

I. Was there a proper factual basis presented at Appellant’s July 12, 2002 change of Plea Hearing sufficient for the Court to enter a finding of Guilty?
II. Was the evidence presented at the Revocation Hearing sufficient to revoke the Appellant’s probation?

The State rephrases the issues as:

I. Was the factual basis presented at the July 12, 2000, change of plea hearing sufficient to support the Appellant’s guilty plea and his conviction for felonious restraint?
II. Did the district court abuse its discretion in revoking Appellant’s probation?

FACTS

[¶ 4] Sami was originally charged with first degree sexual assault. The probable cause affidavit alleged that Sami forced his victim to submit to anal intercourse, and preliminary medical reports indicated that the victim had blood on swabs taken of her anus. In July 2000, pursuant to a plea agreement, the prosecutor filed an Amended Information charging Sami with battery, a misdemeanor, in violation of Wyo. Stat. Ann. § 6-2-501, and felonious restraint, a felony, in violation of Wyo. Stat. Ann. § 6-2-202. Sami pled guilty to both battery and felonious restraint. The district court sentenced Sami for battery but deferred his guilty plea to felonious restraint, without entering a judgment of guilt or conviction, pending Sami’s successful completion of three years of supervised probation in accordance with Wyo. Stat. Ann. § 7-13-301.

[¶ 5] In March 2002, the State petitioned the district court to revoke Sami’s probation, alleging that he violated a term of the “Probation/Parole Agreement” he had executed with the Department of Corrections, Division of Probation and Parole. After an evidentia-ry hearing, the district court revoked Sami’s probation, entered a judgment of guilt or conviction for felonious restraint and sentenced Sami for that offense. Sami appealed from the district court’s order revoking his probation and the district court’s subsequent judgment and sentence for felonious restraint. These appeals were consolidated for our review.

DISCUSSION

Sufficiency of Factual Basis

[¶ 6] Sami first argues that the district court failed to obtain a sufficient factual basis to support the felonious restraint guilty plea. In particular, Sami contends that the factual basis developed at his change of plea hearing did not establish that he had restrained the victim under circumstances exposing her to a risk of serious bodily injury. Sami does not claim any other error with respect to the entry of his guilty plea.

[¶ 7] The elements of felonious restraint are set forth in Wyo. Stat. Ann. § 6-2-202 (LexisNexis 2003), which states:

(a) A person is guilty of felonious restraint if he knowingly:
(i) Restrains another unlawfully in circumstances exposing him to risk of serious bodily injury[.]

“Serious bodily injury” is defined as “bodily injury which creates a substantial risk of death or which causes miscarriage, severe disfigurement or protracted loss or impairment of the function of any bodily member or organ.” Wyo. Stat. Ann. § 6-l-104(a)(x) (LexisNexis 2003). “Bodily injury” means “physical pain, illness or any impairment of physical condition.” § 6-l-104(a)(i).

[¶ 8] “The felonious restraint statute is violated when a risk of serious bodily injury occurs and the action causing that risk is an unlawful restraint.” Williams v. State, 2002 WY 136, ¶ 9, 54 P.3d 248, ¶ 9 (Wyo.2002). The statutory language “adopts that of the Model Penal Code,” id., and

requires proof that the accused acted knowingly, meaning he “must have been aware that he was restraining his victim, that the restraint was unlawful, and that it exposed the victim to [the requisite] physical danger.”

Id., ¶ 10 (quoting Model Penal Code § 212.2 cmt. 2, at 242 (Proposed Official Draft 1962)). It “does not require that ... these results actually occur but only that the actor create a risk of such harm.” Model Penal Code, supra, at 241. “This formulation reaches the actor who is reckless with respect to [the requisite] physical harm by punishing one who is aware of the risk thereof.” Williams, ¶ 10 (quoting Model Penal Code, supra, at 243). “That the actor unlawfully restrains another under circumstances creating risk of serious harm is sufficient to call for felony sanctions and thus to differentiate this offense from the misdemeanor of false imprisonment.” Model Penal Code, supra, at 240.

1. Standard of Review

[¶ 9] W.R.Cr.P. 11(f) provides:

Determining accuracy of plea. — Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea.

This Court reviews the conduct of a hearing in which a guilty plea is entered as a whole. Mehring v. State, 860 P.2d 1101, 1106 (Wyo.1993). “Our inquiry determines if the district court sufficiently described the nature of the charges, including the possible penalties; informed the defendant of the right to representation; informed the defendant of the rights waived by a guilty plea; and obtained a factual basis for the plea.” Id. The intent of the procedural requirements is to prevent the individual charged with a crime from being misled into a waiver of substantial rights. Id. W.R.Cr.P. 11 requires that the district court satisfy itself that a factual basis exists for the guilty plea before accepting such plea. Rude v. State, 851 P.2d 15, 18 (Wyo.1993). A sufficient inquiry includes a determination that the defendant understood his conduct, in light of the law, to be criminal. Barnes v. State, 951 P.2d 386, 389 (Wyo.1998). Rule 11 does not require proof beyond a reasonable doubt that a defendant who pleads guilty is actually guilty nor does it require complete descriptions of the elements in accepting a plea. Mehring, 860 P.2d at 1108-09; see W.R.Cr.P. 11(b).

The courts of our land do not function with scripts requiring each participant to perform his or her specific part in the same manner on each occasion. We should never mistake the presence of the printed or spoken word for comprehension. A ritualistic expression of verbiage, complete with legal terminology and excess, may provide a comfortable layer of support for technically demanding members of the bar, but would provide little real assurance that the accused actually understands what is about to be accomplished.

Mehring, 860 P.2d at 1108-09.

[¶ 10] A record composed of the defendant’s testimony and admissions and/or the state’s presentation of evidence discloses a factual basis. The trial judge may properly draw inferences from the defendant’s admissions or the evidence presented by the state to satisfy all elements of the crime to which the defendant is pleading guilty. Rude, 851 P.2d at 18.

2. Factual Basis

[¶ 11] At the change of plea hearing in the instant case, Sami was sworn as a witness, and the following colloquy occurred:

The Court: ... Okay. Mr. Sami, tell me about April 5th, please. Tell me about [the victim]. Maybe I can just make it easier. Did you hit or push her or grab her in a rude or angry manner on that day?
Sami: Yes, Your Honor. I pushed down and lay on her top.
The Court: You — pardon?
Sami: I lay on her top. I push her down and lay on her.
The Court: And was this on or about April 5, 2000?
Sami: Yes, Your Honor.
The Court: And where was this? Was it in Riverton, Wyoming?
Sami: Yes, Your Honor.
The Court: Okay. And so you pushed her on [sic] laid on her top?
Sami: Uh-huh.
The Court: On the top of her body?
Sami: Yes, Your Honor.
The Court: Okay. And were you angry at her or—
Sami: We kind of have a little bit, kind—
The Court: Was it in a rude manner, an angry manner that you were on top of her?
Sami: It was in anger, My Honor.
The Court: Angry?
Sami: Yes.
The Court: Tell me again, Mr. Sami, about the felonious restraint. First of all, tell me where you were. You were still in River-ton. At your home; is that correct?
Sami: No. We were visiting in — I came from Fort Collins and we were at CWC Campus.
The Court: And that’s in Riverton?
Sami: And that’s in Riverton.
The Court: Okay.
Sami: And then after I lay on top of her, then I touch her breast.
The Court: Did you not let her get up, you unlawfully restrain her or—
Sami: I didn’t force her doing anything. I just touched her breast after lay on top of her.
The Court: [Prosecutor’s name], can you— You didn’t let her get up, though, did you?
Sami: No, Your Honor.
The Court: Okay. [Prosecutor’s name] — I might — the Court might need some help. Do you have anything to flesh out the unlawful restraint? Mr. Sami admitting that he did not let her get up, that would satisfy that. But the — under circumstances exposing her to risk of serious bodily harm. Is there anything in the reports or—
[Prosecutor:] Yes, Your Honor. The State’s evidence would have been, had this case gone to trial, that the sexual contact and intercourse that was engaged in was not consensual, and it would be our position that in that case, and either through means of the contact that’s had at the time or on the basis that a victim might resist and be faced with retaliation if they do, we think that meets the element of exposing her to a risk of serious bodily injury.
The Court: Okay. Based on your testimony, Mr. Sami, as well as the explanation by the county attorney, I am going to find that there’s a factual basis for your guilty plea to the misdemeanor battery, and that there is also a factual basis to your guilty plea of felonious restraint.

[¶ 12] Sami contends that this factual basis does not establish that the restraint occurred under circumstances creating a risk of serious bodily injury, an element of the crime of felonious restraint. Specifically, he contends that this record does not show that he caused any bodily injury to his victim. However, the crux of the debate is whether Sami’s behavior (angrily throwing the victim on a bed, laying on top of her and preventing her from getting up, touching her breast, and then performing nonconsensual sexual intercourse on the unlawfully restrained victim) knowingly exposed the victim to the risk of physical pain, illness or any impairment of physical condition which causes impairment of the function of any bodily member or organ. We think that a district court in seeking a factual basis for a guilty plea to felonious restraint can, without more, infer that the victim of restrained, forcible noncon-sensual sexual intercourse was subjected to such violence from that particular act that the court could reasonably conclude that she had been exposed to a risfc of serious bodily injury. See Rude, 851 P.2d at 18 (the element of premeditation can be inferred from all of the facts and circumstances). Additionally, the prosecutor also reasoned that the defendant’s criminal conduct exposed the victim to risk of serious bodily injury, as statutorily defined, if she tried to resist that conduct and the defendant in his angry state retaliated against her. The risks of serious bodily injury are established by both the defendant’s words and the prosecutor’s words. We hold that the factual basis was sufficient to support the defendant’s guilty plea.

Probation Revocation

[¶ 13] As part of his Section 301 probation agreement, Sami agreed to a number of terms including obeying all laws and truthfully reporting contacts with law enforcement. On March 11, 2002, the State filed a petition to revoke Sami’s Section 301 probation status for violations of these terms. The petition was based’ on assertions that Sami had been investigated by the Laramie police for inappropriately touching a sixteen-year-old girl; that a protective order had been entered against Sami for committing acts of domestic abuse against the victim; and that Sami had failed to report his contact with police regarding the abuse allegations.

[¶ 14] After Sami denied the allegations, the district court held a hearing on the petition, received evidence and witnesses’ testimony and ruled that Sami had willfully failed to report a police contact to his probation officer. Sami’s probation was revoked, and he was sentenced to a prison term that was suspended for five years of supervised probation. Sami contends that the evidence presented at the hearing was insufficient for the district court to revoke his probation. He further contends that his failure to report law enforcement contact was not willful and the district court abused its discretion in revoking his probation.

1. Standard of Review

[¶ 15] A district court’s decision to revoke probation is discretionary and will not be disturbed unless the record demonstrates a clear abuse of discretion. Anderson v. State, 2002 WY 46, ¶ 25, 43 P.3d 108, ¶ 25 (Wyo.2002). “The district court is required to make a conscientious judgment that the alleged violation occurred after considering the reasons underlying the conditions of probation, the violation of those conditions, and the reasons leading to the violation.” Id. Judicial discretion is a composite of many things, among which are conclusions drawn from objective criteria; it means a sound judgment exercised with regard to what is right under the circumstances and without doing so arbitrarily or capriciously. Id. “The district court’s determination that the probation agreement has been violated must be based upon verified facts and must be made pursuant to due process protections.” Id. (internal quotation marks omitted). “[I]n order to revoke probation for the violation of a condition of probation not involving the payment of money, the violation must be willful, or, if not willful, must presently threaten the safety of society.” Id., ¶ 26.

2. Evidence of Willful Violation

[¶ 16] At the hearing, Sami’s probation officer testified that he had learned from police that Sami was under investigation for sexual assault on a minor. That investigation did not result in any charges; however, a motion for a protective order was filed that resulted in a finding that Sami had committed an act of domestic abuse against the minor. After the protective order was entered against him, Sami contacted an attorney who advised that the proceedings were civil in nature and should not have any effect upon Sami’s Section 301 probation status. Sami contended that he believed that he only had to report criminal proceedings to his probation officer and, based upon the legal advice that the protection order proceedings were civil, he did not feel he would violate the terms of his probation by not reporting the proceedings to his probation officer. At his next meeting with his probation officer, Sami was required to complete a written questionnaire that asked whether Sami had been in contact with law enforcement since his last report. Sami marked the box “no.” Sami’s probation officer questioned Sami about the incident, and Sami then reported it to his probation officer. Nevertheless, the probation officer filed an affidavit which led to the State’s filing of a petition to revoke probation.

[¶ 17] The district court determined that it did not have to determine whether civil or criminal proceedings had occurred or whether Sami had committed an act of physical abuse against the minor. The court ruled:

But the simple issue before this Court is, did Mr. Sami obey the simple rules of the probation and parole agreement? And about — out of those 12 rules, probably 8 of them could be boiled down to, you have to be truthful and honest with your probation officer.
The Court found it a little incredible— more than a little incredible — that you, Mr. Sami, would not mention this contact, and that you didn’t understand to check the box. You have been checking those boxes for a year and a half.... And yet, you immediately took those papers and went running to see an attorney because you thought there might be some — there might be some problem.

The district court determined that Sami had intentionally failed to reveal contact with law enforcement and revoked his probation.

[¶ 18] Although the record adequately supports the district court’s finding that Sami intentionally marked the box “no,” Sami contends that the violation was not willful and was the result of communication problems he experienced because he does not speak English very well. The district court determined that Sami’s testimony was not credible. “Upon review, all that is necessary to uphold a district court’s decision to revoke probation is evidence that it made a conscientious judgment, after hearing the facts, that a condition of probation had been violated.” Mapp v. State, 929 P.2d 1222, 1225 (Wyo.1996). The record shows the district court properly concluded Sami’s violation of his probation agreement was willful and we find no abuse of discretion. The order revoking probation is affirmed.

CONCLUSION

[¶ 19] The district court could properly infer from the defendant’s admissions and the State’s presentation of evidence that Sami had exposed his victim to the risk of serious bodily injury by his unlawful restraint by nonconsensual sexual intercourse. We uphold the district court’s ruling that a sufficient factual basis existed for Sami’s guilty plea. The district court’s ruling that Sami had willfully violated a term of his probation agreement is supported by a record showing Sami had intentionally stated that he had no law enforcement contact although he had been the subject of a police investigation for physical abuse of a minor. The district court’s order revoking Sami’s probation is affirmed.

      . The relevant portion of Wyo. Stat. Ann. § 7-13-301 (LexisNexis 2003) states:
      (a) If a person who has not previously been convicted of any felony is charged with or is found guilty of or pleads guilty or no contest to any misdemeanor except any second or subsequent violation of W.S. 31-5-233 or any similar provision of law, or any second or subsequent violation of W.S. 6-2-501 (a) or (b) by a household member as defined by W.S. 35-21-102 against any other household member or any similar provision of law, or any felony except murder, sexual assault in the first or second degree, aggravated assault and battery or arson in the first or second degree, the court may, with the consent of the defendant and the state and without entering a judgment of guilt or conviction, defer further proceedings and place the person on probation for a term not to exceed five (5) years upon terms and conditions set by the court.

      2. Sami does not argue that this statement — vis a vis the prosecutor’s subsequent representation that he would have produced unspecified evidence at trial that Sami engaged in nonconsensual sexual intercourse with the victim' — somehow transformed Sami's guilty plea into a plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), the acceptance of which plea may require that there be "strong evidence of actual guilt.” Johnston v. State, 829 P.2d 1179, 1181 (Wyo.1992).