### IN THE SUPREME COURT, STATE OF WYOMING

20 2 1 WY 7 5 A

APRIL TERM, A.D. 20 2 1

June 30 , 2021

LACIE ARCHER and EMILY FARLEY,

Appellants (Proposed Intervenors),

v.

KALLISTA MILLS, as the Wrongful Death Personal Representative of Carrie Linn,

de ce ased,

Ap pellee (Plaintiff),

and

CHARLES LINN,

Appellee (Defendant). S

- 20

- 0192

Appeal from the District Court of Uinta County

The Hono r ab le Joseph B. Bluemel , Judge

Representing Appellant s : Bernard Q. Phelan, Phelan Law Office , Cheyenne, Wyoming

.

R e p re sen ti ng Appellee Mills : Raymond B. Johnson, Harris Law Office, Evanston, Wyoming

. No Appearance.

Re p re senting Appellee Linn : Peter H. Christensen

, S. Spencer Brown

, and Marshall J. Hend r ickson, Strong &

Ha nni, Salt Lake City, Utah

.

Before DAVIS, C .J

., and F O

X

, K AUTZ, BOOMGAARDEN, and GRAY, 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, Suprem e Court Bu ilding, Cheyenne, Wyoming 82002, of a n y ty p ographical or other formal errors so that correction may be made before final publication in the permanent volume.1 GRAY , Justice

. 1

[¶1] Kallista Mills, the wrongful death representative of decedent Carrie Lin n, broug ht this wrongful death action against Charles Linn, Mrs. Linn’s husband. Lacie Archer and Emily Farley

, Mrs. Linn ’s daughters

, moved to intervene

. The district court denied their

motion and they appeal

. We affirm

.

ISSUE

[¶2] The issue is :

Can hei r s of the decedent intervene in a wrongful death action brought by the wrongful death representative ? 2

FACTS

[¶3] Mrs. Linn died s everal days after undergoing elective surgery

. 3 Ms. Mills, her niece, was appointed M r s. Linn’s wron gful deat h representativ e p u rsuant to Wyo. Stat. Ann. § 1

- 38

- 103 in a civil action, Docket No. CV

- 20 18

- 0000 62 (the appointment action)

. Ms. Mills then brought this wrongful death action, Docket No. CV

- 20 18

- 000 117 (the wrongful death act ion) , against Mr. Linn, alleging that he ha d n e gligently caused Mrs.

Linn’s death

. 4 A year later, Ms. Mills signed a “ Release of All Claims

, ” releasing Mr. Linn from all causes of action asserted against him in the wrongful death action

.

1 The opinion published in Archer v. Mills , 2021 WY 75 , published on June 9, 2021, 2021 WL 2350967 ( Wy o.) , is amended by this op i nion. The earlier o pinion has no further force or effect.

2 The appellants present two issues: whether a wrongful death representative must obtain the consent of

the ben eficiar ies before stipulat ing to the di smissal of the wrong ful death action ; and whether the

dismissal of the action in this case b a sed up on an alleged failure to serve counsel was an abuse of

discretion. We conclude that the app ellants we re statutorily pr ecluded from interven ing in this action and

affirm on that ba sis. See Pra ncing Antelope I, LLC v. Saratoga Inn Overlook Homeowner s Ass ’ n , Inc.

, 2021 WY 3, ¶ 41, 478 P.3d 1171, 1182 (Wyo. 2021) (“[W]e may affirm the district cou rt on any basis that appears in the r ecord.”). We

, therefore

, do not reach the issue of whether the d ismissal based on the appellants’ alleged failure to ser v e its motion to intervene was an abuse of discretion. Additionally, because the appellants were no t permitted to intervene in this action , and we affirm that ruling, they

remained st ran gers to the a ction and had no standing to appeal the order granting t h e stipulated motion to dismiss with prejudice. See Matter of Paternity of AAAE , 2020 WY 117, ¶ 13, 471 P.3d 990, 993

– 94 (Wyo. 2020) (“A no nparty does not have standing as a litigant in a lawsuit

. ”). As such, we will not address the nature of a wrongful d eath representative’s obligations to the wrongful death beneficiaries or whether beneficiary approv al is a condition to settlement or to a st ipulated dismissal. See

, e.g. , Wilmot v.

Wil mot , 58 P.3d 507 (Ariz. 2002).

3 The complaint alleges that Mr. Linn w as negligent in caring for Mrs. Lin n after her surgery. According

to the death c ertificate

, the cause of death was “asphyxia” an d “aspiration.”

4 A probate action was also filed (Do cke t No. PR

- 18

- 2 0).2 Subsequent ly

, Ms. Mills and Mr. Linn filed a stipulated mot ion to dismiss the wrongful

death action with prejudice.

[¶4] A fter the execution of the release but before the filing of the stipulated motion to dismiss, Ms. Archer and Ms. Farley filed a motion to in t ervene in the wrongful death

action.

[¶5] T he district cou rt h eld a hearing on pending motion s 5 and because Ms. Archer and Ms. Farley had not served the motion to intervene on counsel of record , it ordered them

to serve counsel within ten da ys of the h earing . It cautioned that fail ure to do so would

result in a dis m iss al of the action

. Ms. Archer and Ms. Farley did not serve the motion within ten days , and the court dismissed the action with prejudice. 6 Ms. Arch er and Ms. Farley appeal.

STANDARD OF REVIEW

[¶6] T he determination of whether a party can intervene in a w r ongful death action requires an interpretation of the statutes governing wrongful death actions

, a question of

law review ed de novo. Life Care Ctr. of Casper v. Barrett , 2020 WY 57, ¶ 12, 462 P.3d 894, 898 (Wyo. 2020); Sullivan v . State , 2019 WY 71, ¶ 7, 444 P.3d 1257, 1259 (Wyo. 2019)

, cert. denied , 140 S .Ct. 974, 206 L.Ed.2d 130 (2020) ; Parkhurst v. State , 2019 WY 63, ¶ 9, 443 P.3d 834, 836 (Wyo. 2019 ).

[¶7] When w e interpret statut es , our goal is to determine the legislature’s intent. W e first look to th e statute ’ s plain language

, and we examine the plain and ordinary meaning of the words to determine whether the statute is ambiguous. Matter of Adoptio n of

ATWS

, 2021 WY 62, ¶¶ 9

– 10

, 486 P.3d 158

, 160 (Wyo. 2021) ; In re Est

. of Meyer , 2016 WY 6, ¶ 1 7, 3 67 P.3d 629, 634 (Wyo. 2016) ; see also Int

. of: AA

, 2021 WY 18 , ¶ 17, 479 P.3d 1252, 1258 (Wyo. 2021) (“When interpreting

. . . statute[s] and [their] application

, we first look at the plain language used by the legislature.” (citation omitted)).

A s tatu te is

. . . unambiguous if its wording is such that reasonable persons are able to agree on its meaning with consistency and predictability. Parker Lan d & Cattle [ Co. v.

Game & Fish Comm ’ n , 845 P.2d 1040,] 1043 [(Wyo.1993 ) ]. Conversely, a statute is amb i guous if it is found to be vague or uncertain and subject to varying interpretations. Id.

. . .

5 At the hearing, the court also heard motions filed in the probate and appointment actions. Those

motions are not relevant to this appeal

. 6 The district court made an oral ruling at the hearing on May 7 , 2020

. T h ere is no transcrip t o f the hearing in the record. Both orders were signed on July 9, 2020

.3 Ultimately, whether a statute is ambiguous is a matter of law

to be determined by the court. Allied

- Signa l [ v. Wyo

. State Bd. of Equalization ], 813 P.2d [ 214

, ] 219 [ (Wyo.1991) ].

Meyer , ¶ 17, 367 P.3d at 634 (quoting Wyo

. Cmty. Coll. Com m ’n v. Casper Cmty. Coll.

Dist. , 2001 WY 86, ¶ 17, 31 P.3d 1242, 12 49 (Wyo. 2 001) )

.

DISCUSSION

[¶8] Wyoming’s statutes establish the procedure for bringing a wrongful death act ion

. See Wyo. Stat. Ann. §§ 1

- 3 8

- 101 through

- 105. Wyo. Stat. Ann. § 1

- 38

- 102 (a) states :

“ Every wrongful death action un der W.S. 1

- 38

- 101 shall be b rought by and in the

name of the decedent ’ s wrongful death representative for the exclusive benefit of

ben efi c iaries who have sustained damage .” Wyo. Stat. Ann. § 1

- 38

- 102 (a) (LexisNexis 2019) (emphasis added). 7

[¶9] W e have consi stently found the word “ shal l ” in a st atute to be mandatory. In re

MN , 2007 WY 189, ¶ 5, 171 P.3d 1077, 1080 (Wyo. 2007) ; see also St utz m an v. Off

. of Wyo

. State Eng ’ r , 2006 WY 30, ¶ 17, 130 P.3d 470, 475 (Wyo. 2006) (“Where the legislature uses the word ‘shall,’ this Court accepts the provis ion as mandatory and has no right to make the law contrary to what the legisl ature prescribed.”) ; s e e also Merrill v.

Jansma

, 2004 WY 26, ¶ 42, 86 P.3d 270, 288 (Wyo. 2004); and In re DCP

, 2001 WY 77, ¶ 16, 30 P.3d 29, 32 (Wyo. 2001). “The choic e of the w ord ‘shall’ intimates an absence

of discretion

. . . . ” In re LePage

, 2001 WY 26, ¶ 12, 18 P.3d 11 7 7, 1180 (Wyo. 2001).

[¶10] Here, the word “shall” is unambiguous. Section 102(a) requires wrongful death

actions to be br ought by the wrongful death representa tive. The statute does not permit

anyone other than the wrongful death representative to bring a w r ongful death action.

This C ourt confirmed the proceeding appointing a wrongful death representative “ is to be

a separ ate action, meaning separate from any wrongful death action brought pursuant to § 101, and separate from any action to approve a settl eme n t brought pursuant to § 102(e). ” Life Care

, ¶ 18, 462 P.3d at 899

. Once a party is named the wrongful death representative, that party may bring a wrongfu l death action. Wyo. Stat. Ann. § 1

- 38

- 102 (a).

7 Wyo. Stat. Ann. § 1

- 38

- 101 provid es, Whe neve r the death of a person is caused by wrongful act, neglect or

default such as would have entitled the party injured to maintain an

acti on to recover da mages if death had not ensued, the person who would

have been liable if death had not ensued i s liabl e in an action for damages

. . . . Wyo. Stat. Ann. § 1

- 38

- 101 (LexisNexis 2019).4 [¶11] Section 103(c) states that “ [t]he appointment of t he wrongful death representative is a procedural device intended t o provide a representative to investigate and bring an

action under W.S. 1

- 38

- 10 1

. . . . ” Wyo. Stat. Ann. § 1

- 38

- 103(c). This , together with section 102( a ), which states that wrongful dea t h actions “shall be brought by” the wrongful death representative, demons trates that the legislatur e inten ded that only the wrongful death represe ntative ma y bring wrongful death actions. The rationale for this requirement is sound. T he statutory pro ced u re provides certainty in wrongful death actions, where there may b e multipl e beneficiaries that have sustained damage due to the

decedent’s death

. It assur es wrongful death defendants that all claims will proceed in a single action brought for the ben efi t of any beneficiaries

. Wyo. Stat. Ann. § § 1

- 38

- 102(a)

, 1

- 3 8

- 103(c )

.

[¶12] The p rocess , however

, does not leave those beneficiaries not name d as a wro ngful

deat h representative w ithout recourse

. A nyone claiming to qualify as a wrongful death representativ e m a y intervene in the separate appointment proceeding as a matter of right

and may file mo tions to reconsider the appointment of a wrongful death rep resentative

. See W yo. Stat. Ann. § § 1

- 38

- 103( b ) and 1

- 38

- 104. Wyo. Stat. Ann. § 1

- 38

- 103( b ) provides:

T he appointment [of a wrongful death representative] shall be made in a separate action brought so lely for appointing the wrongful death representative

. In any action in which appointment of the wrongful death representative is sought, any person claiming to q ualify under W.S. 1

- 38

- 104(a) may intervene as a matter of right. After an action to appoin t the wrongful death representative is filed

. . . [n] o subsequent action for appointment may be maintaine d

. . . .

Wyo. Stat. Ann. § 1

- 38

- 103( b ) (i) (LexisNe xi s 2 0 19) (emphasis added). Section 104 provides:

(a) In appointing the wrongful de ath representative, the court shall determine the person who will best repre sent the

inter ests of the potential beneficiaries of the action as a

whole.

(b) In determining wheth er t he best interests of potential beneficiaries as a whole will be served by a ppointment of the wrongful death representative, the court shall consid er:

(i ) The famil ial or other relationship of the person making application to the decedent;5 (ii) The int e rests of the person making application

in relation to the interests of othe r potential beneficiaries as a whole;

(iii) Actions taken to secure appointment a s the

w rongful death representative and to protect the interests of all pote ntial beneficiarie s;

(iv) Such other factors as the court deems relevant.

(c) No appeal shall be allowed from an order appointing the wrongful death representative. The court, howe ver , may entertain a motion to reconsider an appointment of the wrongful dea th representat ive

.

Wyo. Stat. Ann. § 1

- 38

- 104 (Lexis Nexis 2019) (emphasis added)

.

[¶13] I n accor dance with the statutory framework, Ms. Mills was appointed t he wrongfu l death representat ive for Mrs. Li nn

. Undoubtedly, as Mrs. Linn’s daughters,

Ms. Archer or Ms. Farley wou ld h ave “qualified” as her wrongful death representative

under sec tion 104 . E ither could have intervened in the appointment action as a matter of right

. T he record in the appointment action is not before the Court. N othing in the

re cord before the Court in dicat es a motion to intervene or a motion to reconsider the appointment of M s . Mills as the wrongful death representative was fi led

. See Wyo. Stat.

Ann. § § 1

- 38

- 103( b ) and 1

- 38

- 104.

[¶14] Instead, Ms. Archer and Ms. Farley sought to intervene in th is separ at e wrongful

death action brought by Mrs. Linn’s wrongful death representative , Ms. Mills

. The statute allows only one plaintiff in wrongful d eath actions

— the wrongful death representative

. Wyo. Stat. Ann. § 1

- 38

- 102 (a) ; supra ¶ 1 0

. Ms. Mills i s Mr s. L inn ’s wrongful death representative. Ms. Archer and Ms. Farley ’ s intervention is preclud e d

.

CONCLUSION

[¶15] Wyoming’s wrongful death statutes ma ndate a wrongful death action be brought by the duly appointed wrongful death representati ve for the benefit o f a ll beneficiaries

. Beneficiaries , unless appointed as the wrongful death repres entative, are precluded from intervening in wrongful death actions

. We affirm.