IN THE SUPREME COURT, STATE OF WYOMING

2013 WY 19

OCTOBER TERM, A.D. 2012

February 14, 2013

SHIRLEY R. CASE, an individual,

Appellant

(Plaintiff),

v.

SINK & RISE, INC., a Wyoming

corporation; CALE CASE, an individual;

GUION and DARLA NIGHTINGALE,

individuals; and TANGEMANN

BENEDICT CORP., a Wyoming

corporation.

Appellees

(Defendants).

S-12-0111

Appeal from the District Court of Fremont County

The Honorable Wade E. Waldrip, Judge

Representing Appellant:

Glenn M. Ford, Wilson, WY; and Amy Wallace Potter, Jackson, WY. Argument 

by Mr. Ford.

Representing Appellees:

J. Denny Moffett of Moffett & Associates, P.C., and Heather Noble, Jackson, WY

for Appellee Sink & Rise, Inc. Argument by Mr. Moffett.

Scott W. Meier, Lucas Buckley, and Marianne K. Shanor of Hathaway & Kunz, 

P.C., Cheyenne, WY for Appellees Cale Case, Guion and Darla Nightingale, and 

Tangemann Benedict Corp. Argument by Mr. Meier.

Before KITE, C.J., and HILL, VOIGT, BURKE, and DAVIS, JJ.
NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third. 

Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,

Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be

made before final publication in the permanent volume.
1

HILL, Justice.

[¶1] This case involves a dispute over corporate action during a shareholder meeting of 

Appellee Sink & Rise, Inc., (Sink & Rise) a Wyoming corporation. Appellee James 

Caleb Case (Cale Case) was the only shareholder present at the meeting. He concluded 

that a quorum existed and thus voted on and passed several resolutions. Cale Case also 

elected himself and another shareholder as the directors of the corporation, and replaced

his estranged wife, Appellant Shirley Case, as the corporation’s secretary.

[¶2] Shirley Case took issue with her estranged husband’s actions during the 

shareholder meeting and filed a complaint in district court to set aside the corporate 

action that occurred at the shareholder meeting. After trial, the court held that joint stock 

held by Cale Case and Shirley Case, as husband and wife as tenants by the entirety with 

rights of survivorship, were “entitled to vote” during the shareholder meeting and could 

thus be counted for quorum purposes, although they were not voted to pass the 

resolutions. Nevertheless, the district court concluded that the resolutions were passed 

with requisite authority and thus they were not set aside after trial. This appeal followed.

ISSUES

[¶3] Shirley Case presents two issues for our consideration:

1. Did the trial court commit reversible error in finding that

the transactions contemplated by Sink & Rise Shareholder

Resolutions 1, 2, and 3 and Board of Director Resolutions

1, 2, and 3 were not void and ultra vires as directors’

conflicting interest transactions under W. S. § 17-16-860, 

et. seq.?

2. Did the trial court commit reversible error in finding that

the jointly held stock held by James Caleb Case and

Shirley Case could be counted for purposes of a quorum

of shareholders in the absence of either personal

attendance or a proxy from both owners?

FACTS

[¶4] A May 24, 2011 shareholder meeting of Sink & Rise is central to this case. Sink 

& Rise has 84 shares of voting, common stock outstanding. There exists only one class 

of stock in the corporation, giving each stockholder the same voting rights. The stock 

ownership in Sink & Rise is as follows:

Cale Case – 20 shares
2

Cale Case and Shirley Case, Husband and Wife with Rights

of Survivorship – 16 shares

Clarene Law, Trustee, Clarene Law Revocable Trust (4/4/89) 

– 16 shares

Creed Law, Trustee, Creed Law Revocable Trust (4/4/89) –

16 shares

Guion Nightingale – 16 shares

1

[¶5] At the May 24, 2011 shareholder meeting, only Cale Case appeared in person. 

Appellee Guion Nightingale (Nightingale) appeared by proxy. No one else was present, 

either in person or by proxy. During the meeting, several resolutions were passed, 

including reauthorizing and securitizing debts, and electing Nightingale and Cale Case as 

the only members of the corporation’s board of directors. A board of directors meeting 

followed, where the board passed another resolution electing Cale Case as president of 

the corporation and replacing Shirley Case as secretary. To pass these resolutions, Cale 

Case and Nightingale determined that a quorum existed by counting Cale Case’s 20 

shares, Nightingale’s 16 shares, and the 16 shares held jointly by Cale Case and Shirley 

Case as husband and wife.

[¶6] Shirley Case filed suit two weeks later on June 9, 2011 in district court. Her 

complaint contained three counts and challenged the validity of the decisions made at the 

Sink & Rise shareholder meeting and the ensuing Sink & Rise board of directors 

meeting. The complaint brought (Count I) derivative claims against Sink & Rise (Count 

II) a claim asking for declaratory judgment that the corporate actions taken at both the 

shareholder and board of directors meetings were done so in violation of Wyoming law, 

and (Count III) a claim asking for injunctive relief. After filing an answer to the 

complaint, Sink & Rise filed a motion for partial summary judgment seeking dismissal of 

Counts I and III of the complaint. The remaining Appellees joined the motion, and on 

November 7, 2011, the district court granted it, dismissing the shareholders’ derivative 

claim in Count I and the claim for injunctive relief in Count III.

[¶7] Count II proceeded to a bench trial on November 15-16, 2011. The decision letter 

of the court concluded that a quorum was reached at the shareholder meeting, that shares 

were not improperly voted, and that the decisions made at the shareholder meeting were 

valid.

DISCUSSION

 

1 The parties disagree about the status of the stock held by Appellee Guion Nightingale, but the issue is

not raised by Shirley Case.
3

[¶8] Shirley Case’s first issue on appeal alleges that the trial court committed 

reversible error when it found that the transactions contemplated by Sink & Rise 

Shareholder Resolutions 1, 2, and 3 and Board of Director Resolutions 1, 2, and 3 were 

not void, and ultra vires as directors’ conflicting interest transactions under Wyo. Stat.

Ann. § 17-16-860, et. seq. (LexisNexis 2011).

[¶9] The Appellees argue that only Count I of Shirley Case’s Verified Complaint

sought relief on whether a directors’ conflict of interest transaction occurred under § 17-

16-860, et. seq. Neither Count II (a declaratory judgment claim) or Count III (a 

temporary restraining order/injunction claim) discussed directors’ conflicting interest 

transactions. The Appellees point out that Sink & Rise filed a motion for partial 

summary judgment requesting Counts I and III be dismissed, and that Shirley Case did 

not respond. As a result, on November 7, 2011, the court entered an Order Granting 

Motion for Summary Judgment and Dismissing Counts I and III of Plaintiff’s Complaint 

with Prejudice, and stated:

The Court finds that the Plaintiff has failed to file a

response or otherwise controvert the assertions in the 

Defendants’ Motion and Joinder by the October 13[sic], 2011 

deadline which was set forth in the Court’s July 18, 2011, 

Scheduling Order and Order Setting Trial. The Court further 

finds that Plaintiff has not moved for or otherwise requested 

an enlargement of time within which to file a response. 

Accordingly, the Court, having reviewed the Motion and the 

Joinder, and being duly advised in the premises, finds that the 

Motion and the Joinder are well taken and therefore 

GRANTS the same.

IT IS HEREBY ORDERED that Count I and Count III 

of Plaintiff’s Verified Complaint are dismissed with prejudice 

as to all Defendants herein.

The Appellees also emphasize the fact that the district court discussed and ruled directly

on this very issue when it refused to permit evidence and testimony regarding the conflict

of interest during trial:

THE COURT: ... My point in making that point was that we 

are only talking about the corporate authority for those 

resolutions. We are not talking about issues such as conflict 

of interest or skullduggery by a corporate officer. Those, as 

to Count II, seem to be clearly irrelevant.

You have asked for relief in Count II that the Court

rule that the resolutions were not passed with authority, the
4

resolutions are void and ultra vires. And Count II deals solely

with the issues of which shares of stock can be voted.

MR. FORD: Well, that’s where my confusion comes in, Your 

Honor. If you look at the various facts we pleaded, we 

pleaded the specific facts that were conflicted, not just the 

resolutions.

THE COURT: I agree with you.

MR. FORD: And we have asked that the – that the acts 

themselves – and I guess this is – this is wordsmithing and 

perhaps inappropriately – or incomplete wordsmithing on our 

point – but we are asking that the conflicted transactions 

would be ruled upon. But if, in fact, the resolutions were 

voted on by the directors who had direct conflicts, then that

would get to the same point. It becomes circular at that point.

THE COURT: I don’t – I guess I disagree with you, Mr. Ford.

MR. FORD: I get that.

THE COURT: I’m looking at Count II, Declaratory Judgment 

– Unauthorized Corporate Actions. I am looking at 

paragraphs 25 through 32 and they deal only with voting of 

specific shares of stock and the issue of quorum.

Next, I look at the November 7, 2011, Order granting

summary judgment and dismissing Counts I and III. And I

think that clearly, in my mind, precludes you from

introducing evidence to this Court concerning issues of

conflict of interest. And I think those are now irrelevant, and 

I won’t allow them. I want you to understand the position of 

the Court.

MR. FORD: Okay. If I might just point out that the first

paragraph of Count 25 (sic) incorporates all of the

proceedings.

THE COURT: I understand that. But I’m not going to allow 

you to bootstrap a cause of action that got tossed out because 

you didn’t reply to summary judgment. And that is what

happened on I and III. 
5

MR. FORD: Well –

THE COURT: That is what it is. I’m stuck with it. So with 

that understanding, I assume if you need to make an opening, 

I will begin evidence and testimony.

Although Shirley Case contends that the trial court’s Order on Summary Judgment did 

not address the conflicting interest issue and remains unresolved, her failure to respond to 

Appellees’ Motion for Partial Summary Judgment resulted in the lower court fully 

adjudicating Count I, which included her claims relating to conflicting interest 

transactions, and thus prevented her resurrection of the issue at trial. We agree with this 

conclusion.

[¶10] The Wyoming Rules of Civil Procedure grant district courts authority to set the 

timing for the filing of summary judgment motions and responses. W.R.C.P. 56(c) 

provides that “[u]nless the court otherwise orders, the motion and any response and other 

papers relating thereto shall be served pursuant to Rule 6(c).” Here, the district court 

issued its scheduling order that required all dispositive motions to be filed on or before 

October 3, 2011, and all responses to be filed on or before October 14, 2011. Shirley 

Case never responded to the Motion for Partial Summary Judgment, precluding the 

district court from trying the conflicting interest issue alleged in Count I.

[¶11] This Court has noted the importance of parties’ compliance with the rules of civil 

procedure in the context of a party’s failure to timely respond to a motion for summary 

judgment: “Compliance with the rules of civil procedure ‘is mandatory, not optional.’” 

Sandstrom v. Sandstrom, 884 P.2d 968, 970-971 (Wyo. 1994). Further, “[t]he district 

court should not receive or consider untimely filed affidavits in summary judgment 

matters. To condone a practice which permits parties to simply ignore the Wyoming 

Rules of Civil Procedure would defeat the purpose for the rules.” Weber v. McCoy, 950 

P.2d 548, 553 (Wyo. 1997) (internal citation omitted).

[¶12] Given this discussion, given that the Motion for Partial Summary Judgment went 

unopposed, and given that the district court did not entertain argument on this issue, we 

conclude that the district court’s rulings on the issues raised in Counts I and III were 

final, and stand.

Joint Stock and the Quorum

[¶13] In her second and final issue, Shirley Case argues first that Cale Case was not 

entitled to vote the jointly held shares due to her absence and, consequently, those same 

shares could not be counted for quorum purposes. According to Shirley Case, only

shares “entitled to vote” are to be counted in establishing a quorum. Cale Case
6

maintains that the district court’s decision that the shares could be counted for quorum

purposes is valid.

STANDARD OF REVIEW

[¶14] We recently stated in Redland v. Redland, 2012 WY 148, ¶ 48, 288 P.3d 1173, 

1185 (Wyo. 2012) as follows:

Following a bench trial, this court reviews a district

court’s findings and conclusions using a clearly erroneous

standard for the factual findings and a de novo standard for

the conclusions of law. Piroschak v. Whelan, 2005 WY 26, 

¶ 7, 106 P.3d 887, 890 (Wyo. 2005).

The factual findings of a judge are not entitled to the

limited review afforded a jury verdict. While the

findings are presumptively correct, the appellate court

may examine all of the properly admissible evidence in

the record. Due regard is given to the opportunity of the

trial judge to assess the credibility of the witnesses, and

our review does not entail re-weighing disputed

evidence. Findings of fact will not be set aside unless

they are clearly erroneous. A finding is clearly erroneous

when, although there is evidence to support it, the

reviewing court on the entire evidence is left with the

definite and firm conviction that a mistake has been

committed.

Piroschak, ¶ 7, 106 P.3d at 890. Findings may not be set

aside because we would have reached a different result.

Harber v. Jense[n], 2004 WY 104, ¶ 7, 97 P.3d 57, 60 

(Wyo. 2004). Further,

we assume that the evidence of the prevailing party

below is true and give that party every reasonable

inference that can fairly and reasonably be drawn from

it.

Id.

Claman v. Popp, 2012 WY 92, ¶ 22, 279 P.3d 1003, 1012 

(Wyo. 2012) (quoting Pennant Serv. Co. v. True Oil Co.,

LLC, 2011 WY 40, ¶ 7, 249 P.3d 698, 703 (Wyo. 2011)). We 

review the district court’s conclusions of law de novo. 

Lieberman v. Mossbrook, 2009 WY 65, ¶ 40, 208 P.3d 1296,

1308 (Wyo. 2009).
7

[¶15] Although Cale Case urges us to summarily affirm the district court because he 

alleges Shirley Case’s brief is not “presented with cogent argument or supported by 

pertinent authority,” we will proceed to decide this case on the merits of the issue 

presented, having concluded that the briefs presented meet the standards required by this 

Court.

[¶16] Turning to the issue, Shirley Case argues that because her estranged husband was 

not entitled to vote the jointly held shares, those same shares could not be counted for 

quorum purposes. She reasons that because she was absent from the meeting and 

because only shares “entitled to vote” are to be counted in establishing a quorum, the 

shares in question were essentially useless at the meeting. 

[¶17] Although each party cites several secondary sources and other jurisdictions in 

support of their respective arguments, we find the answer in the Sink & Rise corporate 

documents, and within Wyoming law. First, we reiterate the characterization of the stock 

as being owned by husband and wife with rights of survivorship. We agree with the 

district court’s further classification of the stock as creating a presumption of tenancy by 

the entirety under Wyoming law. Witzel v. Witzel, 386 P.2d 103, 105 (Wyo. 1963) (the 

conveyance of property to husband and wife creates the presumption of a tenancy by the 

entirety). As tenants by the entirety, each owns an undivided 100% interest in the 16 

shares.

In an estate of the entirety, the husband and the wife during

their joint lives each owns, not a part, or a separate or a

separable interest, but the whole, and therefore the death of

one leaves the other still holding the whole title as before,

with no one to share it.

Talbot v. United States by & Through Secretary of the Treasury, 850 F. Supp. 969, 975

(D. Wyo. 1994).

[¶18] To further help us in our consideration, we turn to the corporate documents. We

first note that when considering corporate documents, it is well settled that “[b]ylaws are 

contractual in nature.” Mueller v. Zimmer, 2005 WY 156, ¶ 35, 124 P.3d 340, 359

(quoting Skane v. Star Valley Ranch Ass’n, 826 P.2d 266, 271 (Wyo. 1992)). 

“Unsurprisingly, bylaws are interpreted according to the principles applicable to the

interpretation of contracts.” Id. (citations omitted). Our standard for interpreting 

contracts is well-established and straightforward:

According to our established standards for

interpretation of contracts, the words used in the contract are

afforded the plain meaning that a reasonable person would

give them. Doctors’ Co. v. Insurance Corp. of America, 864 
8

P.2d 1018, 1023 (Wyo. 1993). When the provisions in the

contract are clear and unambiguous, the court looks only to

the “four corners” of the document in arriving at the intent of 

the parties. Union Pacific Resources Co., 882 P.2d at 220;

Prudential Preferred Properties, 859 P.2d at 1271. In the

absence of any ambiguity, the contract will be enforced

according to its terms because no construction is appropriate.

Sinclair Oil Corp. v. Republic Ins. Co., 929 P.2d 535, 539

(Wyo. 1996); Prudential Preferred Properties, 859 P.2d at

1271.

Mueller, ¶ 35, 124 P.3d at 359.

[¶19] With the above law in mind, we consider Sink & Rise’s bylaws, which define 

what constitutes a “quorum,” and relate the corporation’s rule on voting shares:

6. Quorum. A majority of the outstanding shares entitled to

vote, represented in person or by proxy, shall constitute a

quorum at a meeting of Shareholders. If a quorum is present,

the affirmative vote of the majority of shares entitled to vote

at the meeting shall be the act of the Shareholders. If less

than a majority of the outstanding shares are represented at a

meeting, which a quorum is presented or represented, any

business may be transacted which might have been transacted

at the meeting as originally called. The Shareholders present

at a duly organized meeting may continue to transact business

until adjournment, notwithstanding the withdrawal of enough

Shareholders to leave less than a quorum.

7. Voting of Shares. Subject to the provisions of 7(c) hereof,

each outstanding share is entitled to vote the number of shares

owned by him/her on each matter submitted to a vote at a

meeting of Shareholders.

(a) Neither treasury shares, nor shares of its own stock

held by a corporation in a fiduciary capacity, nor shares held

by another corporation if a majority of the shares entitled to

vote for the election of such other corporation is held by the

Corporation, shall be voted at any meeting or counted in

determining the total number of outstanding shares at any

given time.
9

According to the bylaws, for the corporation to count shares in determining a quorum, the

shares must be (1) entitled to vote, and (2) represented in person or by proxy. From our

reading of the corporate documents, and because the joint stock was held by husband and

wife as tenants by the entirety, we conclude that the shares held jointly by Cale Case and 

Shirley Case were “entitled to vote” at the meeting. Cale Case represented the stock in 

person, as required by the bylaws.

[¶20] As the district court noted, and the parties agree here, the joint stock in question 

cannot be, and was not, voted without agreement between Cale Case and Shirley Case. 

“The stock itself is standard stock with full voting privileges. Whether the stock will be 

voted at a meeting does not control whether it is ‘entitled to vote’ at that meeting.” 

(Italics in original.) “The fact that Cale Case and Shirley Case must agree on how to vote 

the stock before it can actually be voted does not strip it of its voting privileges.” Cale 

Case did not attempt to vote the stock at the meeting, but instead considered it only for 

quorum purposes because regardless of whether it was voted, its voting potential was still 

full. For the corporation to count shares in determining a quorum, the bylaws are silent 

regarding the shares actually being voted, as opposed to “entitled to vote.” The issue of 

whether stock held in a tenancy by the entirety can be voted by proxy without the 

signature of both owners is considerably different from, and does not control, the issue of 

whether that same stock is represented at a shareholder meeting through a single owner.

[¶21] Sink & Rise’s bylaws do not prevent stock owned by a husband and wife as 

tenants by the entirety from being voted at a shareholder meeting if agreed upon, nor do 

the bylaws prevent the same kind of stock from being counted for purposes of a quorum 

if represented in person. The stock in question was represented in person by Cale Case at 

the May 24, 2011 shareholder meeting, and it was properly counted to establish a 

quorum.

CONCLUSION

[¶22] We affirm the district court’s decision holding that the 16 shares of stock coowned by Cale Case and Shirley Case as husband and wife were “entitled to vote” 

pursuant to the bylaws of Sink & Rise. The district court was correct in its 

characterization of Cale Case and Shirley Case holding the stock as tenants by the 

entirety. Because of the stock’s representation in person at the shareholder meeting, the 

stock could be counted for quorum purposes. Consequently, the resolutions of the May 

24, 2011 meeting were passed with requisite authority. Affirmed.