IN THE SUPREME COURT, STATE OF WYOMING

2016 WY 111

 OCTOBER TERM, A.D. 2016

November 23, 2016

STATE OF WYOMING, ex rel., WYOMING 

DEPARTMENT OF WORKFORCE SERVICES, 

WORKERS’ COMPENSATION DIVISION,

Appellant

(Petitioner)

v.

CODY BEAZER,

Appellee

(Employee) 

and

HORSLEY COMPANY, LLC,

Appellee

(Respondent/Employer).

S-16-0013

Appeal from the District Court of Teton County

The Honorable Timothy C. Day, Judge

Representing Appellant:

Peter K. Michael, Attorney General; John D. Rossetti, Deputy Attorney General; 

Michael J. Finn, Senior Assistant Attorney General; Samantha Caselli, Assistant 

Attorney General. Argument by Ms. Caselli.

Representing Appellee, Cody Beazer:

No appearance.

Representing Appellee, Horsley Company, LLC:

William G. Hibbler, Bill G. Hibbler, PC, Cheyenne, Wyoming.
Before BURKE, C.J., and HILL, DAVIS, FOX, and KAUTZ, 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

BURKE, Chief Justice.

[¶1] Appellant, Wyoming Workers’ Safety and Compensation Division, challenges an 

order from the Office of Administrative Hearings granting summary judgment to 

Appellee, Horsley Company, LLC, on the issue of whether the Division was entitled to 

recover payments made to Horsley’s employee. The Division appealed that decision and 

the district court affirmed. The Division also claims the district court and the OAH erred 

in awarding attorney’s fees to Horsley. We affirm.

ISSUES

[¶2] The Division presents three issues, which we condense and restate as follows:

1. Did the hearing examiner err in concluding Horsley 

was entitled to summary judgment because the 

Division was estopped from seeking reimbursement 

for benefits awarded to Horsley’s employee?

2. Did the hearing examiner and the district court err in 

awarding attorney’s fees to Horsley?

Horsley raises two additional issues, which we also restate:

1. Is the Division’s challenge to summary judgment moot 

because it has failed to challenge all bases for the grant 

of summary judgment?

2. Does this Court have jurisdiction to consider the

challenge to the award of attorney’s fees to Horsley by 

the OAH and the district court?

FACTS

[¶3] Horsley Company, LLC, is a Florida contractor that was hired to install a baggage 

handling system at the airport in Jackson, Wyoming. Prior to commencing work on the 

project, Horsley applied for a workers’ compensation account with the Workers’ Safety 

and Compensation Division. Horsley’s application noted that it had private workers’ 

compensation insurance for employees not residing in Wyoming. In response to 

Horsley’s application, the Division created a “pending” workers’ compensation account 

and required Horsley to submit a certificate of insurance demonstrating coverage for all 

non-resident employees. Horsley subsequently submitted a certificate of insurance 

indicating that it had a workers’ compensation and employer liability insurance policy for 

workers residing in states outside Wyoming, including Utah.
2

[¶4] In October, the Division sent Horsley a letter stating that it had received proof of 

coverage from Horsley’s insurance carrier and that Horsley’s pending workers’ 

compensation account for non-resident employees had been closed: “The Wyoming 

Workers’ Safety & Compensation Division has received Proof of Coverage from your 

insurance carrier stating that you have coverage for your employees while performing 

work in Wyoming. Therefore, your pending account has been closed and you do not 

have Workers’ Compensation coverage through Wyoming.” In December, the Division 

sent Horsley a second letter stating that “We are pleased to notify you that we accept your 

existing coverage for your employees coming into Wyoming from other locations.” In 

this letter, the Division noted that a Wyoming Workers’ Compensation account had been 

activated to cover Wyoming resident employees.

[¶5] In June 2010, the claimant, Cody Beazer, was injured in the course and scope of 

his employment with Horsley.1The injury occurred while Mr. Beazer was working on 

the airport project in Wyoming. Following Mr. Beazer’s injury, there was confusion as 

to whether the claim would be handled by the Division as a Wyoming Workers’ 

Compensation claim or by Horsley’s insurance covering out-of-state employees. On July 

7, a Division employee informed Mr. Beazer that his claim was being handled by the 

Division. A couple days later, a representative of Horsley’s insurance company informed 

Horsley that she had spoken with the Division’s representative and they had “figured out 

. . . that coverage is actually in Wyoming for this claim, under the Horsley Company. 

Therefore, the claim I was handling will now be denied and the WY claim is active.”

The representatives of the Division and Horsley’s insurance company concluded that 

Mr. Beazer had established residency in Wyoming. The record is not clear as to how this 

determination was made. Apparently, it was erroneous. It is undisputed that Mr. Beazer 

was not a resident of Wyoming during his employment with Horsley. The record 

indicates that Mr. Beazer was, at all times relevant to this action, a resident of Utah.

[¶6] In August 2010, the Division sent Horsley a Notice of Case Cost Liability stating 

that Horsley had failed to comply with the Worker’s Compensation Act because it had 

not filed an “employee report” for the period in which Mr. Beazer’s injury occurred.2 

The notice stated that, as a result, Horsley was liable to the State for all payments made to 

Mr. Beazer. The Division subsequently explained that “wages for Cody Beazer should 

have been reported, and a premium paid, to be in compliance with the [Act].” In 

 

1 Mr. Beazer has not entered an appearance in this appeal.

2 The Division’s notice apparently refers to payroll reports required under Wyo. Stat. Ann. § 27-14-

202(a). That statute requires an employer to submit “a true copy of the payroll of his employees engaged 

in extrahazardous employment during the current calendar month or quarterly reporting period.” 
3

September, the Division sent Horsley a Case Cost Liability Billing Statement, which 

provided that “Under W.S. 27-14-203(a) you are liable for an amount equal to all the 

medical and indemnity payments made on behalf of an employee who was injured when 

your account was delinquent in Worker’s Compensation reporting or payment or both.”3

[¶7] Horsley began making payments to the Division.

4 However, it subsequently filed 

an objection, pursuant to Wyo. Stat. Ann. § 27-14-605(a), to all additional medical and 

impairment or disability payments. That matter, which was assigned Case No. C-102, 

was ultimately referred to the Office of Administrative Hearings for a contested case 

hearing. Horsley also filed a petition objecting to the Division’s determination that it was 

required to reimburse the Division for payments made to Mr. Beazer under Wyo. Stat.

Ann. § 27-14-203(a). That matter was also referred to the OAH and was docketed as 

Case No. C-103. The OAH subsequently consolidated the cases and stayed further action 

in Case C-102 until the issue of Horsley’s liability under Section 203(a) was resolved.

[¶8] Horsley subsequently moved for summary judgment in Case C-103 claiming that 

it had complied with the Worker’s Compensation Act and was not liable under Wyo. Stat. 

Ann. § 27-14-203(a). It also claimed the Division was estopped from recovering benefits 

paid to Mr. Beazer. Following a hearing, the OAH granted the motion. It determined 

that Horsley had complied with the Worker’s Compensation Act in all respects, and was 

not liable for payments made to Mr. Beazer by the Division. It also concluded the 

Division was estopped from recovering amounts paid to Mr. Beazer because it accepted 

Horsley’s proof of insurance and closed Horsley’s Wyoming Workers’ Compensation 

account with respect to non-resident employees. The Division filed a petition for review 

of the OAH’s summary judgment in district court. That matter was docketed as Case No. 

16773.

[¶9] On October 20, 2014, Horsley submitted a request for attorney’s fees pursuant to 

Wyo. Stat. Ann. § 27-14-602(d), relating to its petition for modification of benefits in 

 

3 Wyo. Stat. Ann. § 27-14-203(a) provides, in relevant part, as follows:

(a) Any employer not applying for coverage of eligible employees or, 

after obtaining coverage under this act, any employer failing, neglecting 

or refusing to make payments required by this act within thirty (30) days 

of the date due and against whom any injured employee is held entitled 

to worker’s compensation benefits is liable to the state for an amount 

equal to all awards, both paid and reserved entered for payment to or for 

the employee under this act.

4 Horsley submitted payments from August 2010 to February 2012 totaling $187,153.76.
4

Case C-102.

5

 The OAH granted the request on October 30, 2014. In a separate order 

issued the same day, the OAH determined that, because Horsley had been found not to be 

liable for payment to the Division, its request for relief in Case C-102 was moot. The 

Division sought reconsideration of the order, claiming that Horsley was not entitled to an 

award of attorney’s fees because its request for modification of benefits did not involve 

“compensability of an injury” as required under Wyo. Stat. Ann. § 27-14-602(d). The 

OAH denied the motion. The Division then filed a petition for review of that Order. It 

was docketed in the district court as Case No. 16884. The district court consolidated the

appeals.

[¶10] While the Division’s appeals were pending, Horsley submitted a request for 

attorney’s fees in Case C-103. In response, the OAH issued an order staying its decision 

on the motion until the pending appeals were resolved. The request for attorney’s fees in 

Case C-103 is not at issue in this appeal.

[¶11] Following a hearing, the district court affirmed summary judgment and the award 

of attorney’s fees. The Division then filed this appeal. Subsequently, the district court 

entered an order awarding costs and attorney’s fees to Horsley arising from the appeal. 

The Division did not file a notice of appeal of that order.

STANDARD OF REVIEW

[¶12] When we consider an appeal from a district court’s review of an administrative 

agency’s decision, we review the case as though it had come directly from the 

administrative agency. Newman v. State ex rel. Wyo. Workers’ Safety & Comp. Div., 

2015 WY 14, ¶ 8, 341 P.3d 1066, 1069 (Wyo. 2015) (citing CalCon Mut. Mortg. Corp. v. 

State ex rel. Wyo. Dep’t of Audit, 2014 WY 56, ¶ 6, 323 P.3d 1098, 1101 (Wyo. 2014)). 

Review of an administrative agency’s action is governed by the Wyoming Administrative 

Procedure Act, which provides that we hold unlawful and set aside agency action, 

findings and conclusions found to be:

(A) Arbitrary, capricious, an abuse of discretion or otherwise 

not in accordance with law;

(B) Contrary to constitutional right, power, privilege or 

immunity;

 

5 Wyo. Stat. Ann. § 27-14-602(d) provides, in pertinent part, that “In any contested case where the issue is 

the compensability of an injury, a prevailing employer’s attorney fees shall also be paid according to the 

order of the hearing examiner from the worker’s compensation account, not to affect the employer’s 

experience rating.”
5

(C) In excess of statutory jurisdiction, authority or limitations 

or lacking statutory right;

(D) Without observance of procedure required by law; or

(E) Unsupported by substantial evidence in a case reviewed 

on the record of an agency hearing provided by statute.

Wyo. Stat. Ann. § 16-3-114(c)(ii) (LexisNexis 2013).

[¶13] “As always, we review an agency’s conclusions of law de novo, and [w]e will 

affirm an agency’s legal conclusion only if it is in accordance with the law.” Dale v. S & 

S Builders, LLC, 2008 WY 84, ¶ 26, 188 P.3d 554, 561–62 (Wyo. 2008) (internal 

quotation marks omitted). Review of administrative agency action granting summary 

judgment in workers’ compensation cases is governed by W.R.C.P. 56(c). Chavez v. 

Mem’l Hosp. of Sweetwater Cty., 2006 WY 82, ¶ 6, 138 P.3d 185, 188 (Wyo. 2006).

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(c). “The record is reviewed ... from the vantage point most favorable to the 

party who opposed the motion, and this Court will give that party the benefit of all 

favorable inferences that may fairly be drawn from the record.” Chavez, ¶ 6, 138 P.3d at 

188. 

DISCUSSION

I. Summary Judgment

[¶14] The hearing examiner concluded summary judgment was appropriate because (1) 

Horsley complied with the requirements of the Worker’s Compensation Act, and (2) the 

Division was estopped from recovering payments from Horsley: 

The Division and Employee/Claimant argue that [] the 

proof of coverage provided by the Employer did not comply 

[with the Worker’s Compensation Act] as it did not identify 

the Employee/Claimant as a covered employee or the 

Employer as the insured. Aside from the undisputed fact that 

the Division, dealing directly with the Employer, “Horsley 
6

Construction LLC” accepted the certificates submitted as 

proof of coverage, the Office notes that the Affidavit 

submitted by the Employer establishes that in fact coverage 

for the Employee/Claimant was provided. The Division and 

Employee/Claimant have not offered any evidence to dispute 

the Affidavit. Further, it is undisputed that when the work 

related accident happened the insurer did open a claim, the 

obvious inference being there was coverage.

Having found then that there are no issues of fact with 

regard to the Employer’s compliance with Wyo. Stat. § 27-

14-306, the Office further finds and concludes that the 

Employer is relieved from obligation to report and pay 

premiums to the Division as set forth in Article 2 of the Act. 

While that Article does not specifically state that it does not 

apply when a Non resident Employer has provided proof of 

coverage under Wyo. Stat. § 27-14-306, it does refer to 

premiums and reporting when there are “eligible employees 

or, after obtaining coverage under this act”. The Employer’s 

non-resident employees were not “eligible employees” and

the Employer had not obtained coverage under the Wyoming 

Act for those employees. Indeed the Division closed the 

account with respect to those non-resident employees. 

Further it simply does not make sense that a non resident 

employer who has set up and provided coverage under 

another state[’s] worker[’s] compensation laws through 

another provider approved by the Division, should be 

required to make concurrent reports and pay additional 

premiums to the Division. Consequently, the Office does not 

find any issues of fact and finds as a matter of law that the 

Employer complied with the Wyoming Act by filing its proof 

of coverage. The Office finds and concludes that the 

Employer was then relieved of any responsibility to report 

and pay premiums to the Division and therefore its failure to 

do so here was not “non-compliance” with the Wyoming Act.

Aside from finding that the Employer complied with 

the Wyoming Act provisions to establish alternative proof of 

coverage, the Office also finds and concludes that in any 

event equitable estoppel would apply to prevent the Division 

from assessing case costs for failure to report and pay 

premiums.
7

In that respect the Office bases its decision on the 

Division[’s] actions in advising the Employer that it had 

accepted the proof of coverage and closed the Employer’s 

Wyoming account with regard to non-resident employees. It 

is those actions upon which the Employer relied in not 

reporting or paying premiums for non-resident employees.

[¶15] It is readily apparent that the hearing examiner provided two alternate, 

independent bases for the summary judgment order. The Division, however, does not 

challenge the hearing examiner’s conclusion that Horsley complied with the Worker’s 

Compensation Act. The Division limits its argument solely to the estoppel basis for the 

summary judgment order. The Division claims the hearing examiner applied the wrong 

criteria for determining whether it was estopped from recovering payments made to 

Mr. Beazer. The Division also asserts there were genuine issues of fact pertaining to the 

estoppel issue that precluded summary judgment.6 Horsley contends that we need not 

resolve this issue because the Division has not challenged the other independent, alternate 

basis for summary judgment. We agree with Horsley.

[¶16] We encountered a similar situation in Ultra Res., Inc. v. McMurry Energy Co., 

2004 WY 121, 99 P.3d 959 (Wyo. 2004). In that case, the parties entered into a 

settlement agreement providing that issues not resolved in the agreement would be 

submitted to binding arbitration. Id., ¶ 3, 99 P.3d at 961. The appellant, Ultra Resources, 

challenged the district court’s order confirming an arbitration award in favor of the 

appellees. Id. The district court found that the parties had agreed to binding arbitration

in their settlement agreement and granted the appellees’ motion to enforce the settlement 

 

6 The Division framed the issues pertaining to summary judgment this way:

1. Equitable estoppel applies in workers’ compensation cases, but a higher

burden applies when the Division acts in a governmental capacity rather 

than a proprietary capacity. Without any findings of fact, the hearing 

examiner determined that the Division acted in a proprietary capacity and 

was estopped from seeking reimbursement from Horsley Company for 

the cost of benefits provided to a Horsley employee. Did the hearing 

examiner commit an error of law? 

2. Summary judgment is appropriate when no genuine issues of material 

fact exist. In granting summary judgment, the hearing examiner applied 

the estoppel standard for agencies acting in their proprietary rather than 

government capacity without considering whether genuine issues of fact 

remained as to affirmative misconduct, rare and unusual circumstances, 

and public policy. Did the hearing examiner err in granting summary 

judgment because material facts were still at issue?
8

agreement and confirm the arbitration award. The court denied the appellant’s motion to 

vacate the arbitration award on the grounds that it had contractually relinquished any 

right of judicial review of the award. Id. The court also held that Ultra Resources had 

failed to prove the existence of any grounds justifying vacation of the arbitration award. 

Id. 

[¶17] The sole issue presented by Ultra Resources on appeal challenged the district 

court’s denial of its motion to vacate the arbitration award. Id., ¶ 6, 99 P.3d at 962. Ultra 

Resources did not present any argument concerning the holding by the district court that 

it was precluded from challenging the arbitration award because it had contractually 

waived the right to seek judicial review pursuant to the settlement agreement. Id., ¶ 8, 99 

P.3d at 962. We noted that “Under this court’s long-standing precedent, this court will 

not frame the issues for the litigants and will not consider issues not raised by them and 

not supported by cogent argument and authoritative citation.” Id. (quoting State v. 

Campbell County School District, 2001 WY 90, ¶ 35, 32 P.3d 325, 333 (Wyo. 2001)). 

We also noted that “Issues that are not clearly designated in the appellant’s brief are 

normally deemed abandoned or waived.” Ultra Resources, ¶ 7, 99 P.3d at 962 (quoting 5 

Am.Jur.2d Appellate Review § 544, at 245 (1995)). Because Ultra Resources did not 

contest the district court’s holding that it had waived review of the arbitration award, we 

held that the issue regarding the merits of its motion to vacate the award was moot. Id., ¶ 

13, 99 P.3d at 964.

[¶18] In the present case, the hearing examiner determined summary judgment was 

appropriate because Horsley complied with the requirements of the Worker’s 

Compensation Act, and also because the Division was estopped from recovering 

payments from Horsley. The Division, however, has not raised the issue of whether the 

hearing examiner erred in concluding that Horsley was entitled to summary judgment as 

a result of its compliance with the Act. Consistent with Ultra Res., Inc. v. McMurry 

Energy Co., we must conclude that, because the Division has not challenged the hearing 

examiner’s determination that Horsley was entitled to summary judgment as a result of 

its compliance with the Act, its challenge to the finding that the Division was estopped 

from seeking reimbursement for payments made to the claimant does not provide 

sufficient basis to overturn the award of summary judgment. See also AED, Inc. v. KDC 

Invs., LLC, 307 P.3d 176, 181 (Idaho 2013) (“[I]f an appellant fails to contest all of the 

grounds upon which a district court based its grant of summary judgment, the judgment 

must be affirmed.”); Gambaro v. Ore. DOJ, 270 P.3d 377, 381 (Or. Ct. App. 2012); 

Republic Outdoor Adver., LC v. Utah Dep’t of Transp., 258 P.3d 619, 630 (Utah Ct. App. 

2011) (declining to consider a challenge to an alternative basis for the court’s grant of 

summary judgment where appellant failed to adequately challenge an independent basis 
9

for the court’s ruling). Consequently, we will not consider this issue further.

7

II. Attorney’s Fees

[¶19] The Division also contends the hearing examiner and the district court erred in 

awarding attorney’s fees to Horsley. The hearing examiner awarded fees pursuant to 

Wyo. Stat. Ann. § 27-14-602(d), which provides: “In any contested case where the issue 

is the compensability of an injury, a prevailing employer’s attorney fees shall also be paid 

according to the order of the hearing examiner from the worker’s compensation account, 

not to affect the employer’s experience rating.” The district court also awarded 

attorney’s fees to Horsley. The Division claims Horsley was not entitled to attorney’s 

fees at the administrative level or on appeal to the district court because this litigation did 

not involve “compensability of an injury” under Wyo. Stat. Ann. §§ 27-14-602(d) or 27-

14-615.

8

[¶20] Horsley responds that the hearing examiner and the district court properly 

concluded that the “compensability of an injury” was at issue in this case under Section 

602(d). It also contends, however, that we do not have jurisdiction to review the attorney 

fee awards. Horsley claims that neither of the orders identified in the Division’s notice of 

appeal – the OAH’s summary judgment order and the district court’s order affirming 

summary judgment – award any attorney’s fees and costs to Horsley. Horsley further 

 

7 An analysis of the estoppel issue raised by the Division would ultimately have no effect on the hearing 

examiner’s grant of summary judgment. Such an opinion would be merely advisory. “This Court has 

said repeatedly that it will not issue advisory opinions.” Powder River Basin Res. Council v. Wyo. Oil &

Gas Conservation Comm’n, 2014 WY 37, ¶ 35 n.7, 320 P.3d 222, 232 n.7 (Wyo. 2014).

8 Wyo. Stat. Ann. § 27-14-615 provides as follows:

The district court may appoint an attorney to represent the 

employee during proceedings in the district court and appeal to the 

supreme court. The district court may allow the attorney a reasonable fee 

for his services at the conclusion of the proceedings in district court and 

the supreme court may allow for reasonable fees for services at the 

conclusion of the proceedings in the supreme court. In any appeal where 

the issue is the compensability of an injury, a prevailing employer’s 

attorney fees shall also be paid according to the order of the district court 

or supreme court from the worker’s compensation account, not to affect 

the employer’s experience rating. An award of attorney’s fees shall be

for a reasonable number of hours and shall not exceed the benefits at 

issue in the appeal. In all other cases, if the employer or division prevails 

in the district court or supreme court, as the case may be, the fees 

allowed an employee’s attorney shall not affect the employer’s 

experience rating.
10

contends that, because the Division did not appeal the district court’s order awarding 

attorney’s fees, this Court lacks jurisdiction to consider whether the award was 

appropriate. The Division did not respond to Horsley’s jurisdictional argument.

a. OAH Attorney Fee Award

[¶21] We address, first, Horsley’s claim that we do not have jurisdiction to consider the 

OAH’s award of attorney’s fees. According to Horsley, because the Division’s notice of 

appeal did not include the OAH order awarding attorney’s fees, that issue is not properly 

before us. We disagree. The OAH’s award of attorney’s fees was properly appealed to 

the district court. The district court affirmed that award in its order affirming summary 

judgment. That order was attached to the Division’s notice of appeal to this Court. The 

Division’s failure to attach the OAH order awarding attorney’s fees to its notice of appeal

does not deprive us of jurisdiction to review that award.

[¶22] We turn, then, to the substance of the Division’s claim. Before beginning our 

discussion of this issue, we must reiterate that the OAH attorney fee award at issue in this 

appeal is the award made in Case C-102. No award has yet been made in Case C-103 

and whether an award in that case would be appropriate is not before us. The Division, in 

contesting the attorney fee award, ignores the distinction between the two cases and 

focuses its argument on the issues involved in Case C-103, rather than Case C-102.

[¶23] In Case C-102, Horsley sought modification of future benefits based upon a 

decrease in capacity and also claimed that prior medical and benefit award payments had 

been made by mistake. According to the hearing examiner:

The specific issues advanced by Horsley in C102 were: 1) 

[whether] benefits [were] paid by mistake, because 

Mr. Beazer was covered in Utah and the Division should not 

compensate him; 2) [whether] [a]ny injury after September 

20, 2010, was not compensable because it was unrelated to 

any original injury; and 3) [whether] the injury was not 

compensable because of injurious practice.

The Division does not challenge the hearing examiner’s statement of the issues in Case 

C-102, and does not specifically address whether any of those issues involved 

“compensability of an injury” under Wyo. Stat. Ann. § 27-14-602(d). 

[¶24] Instead, the Division focuses on the issues involved in Case C-103 in support of its 

claim that an attorney fee award was not authorized. According to the Division, “This 

case, as litigated before the hearing examiner, only involved the employer’s liability for 

case costs, and not the compensability of the claimant’s injury. This case was brought to 

determine which source was responsible for the costs of the benefits paid.” In making 
11

that statement, the Division is clearly referring to Case C-103. The position espoused by 

the Division may be relevant to an attorney fee award in Case C-103, if one is ever made, 

but that issue is not before us. Here, the OAH made an attorney fee award in Case C102. The OAH identified the pertinent issues in that case and the Division has not 

challenged that statement of issues. The Division has not attempted to establish that 

those issues do not involve the “compensability of an injury” and has not contested the 

amount of the attorney fee award. Accordingly, we must affirm the OAH attorney fee 

award.

b. District Court Attorney Fee Award

[¶25] Before addressing the Division’s challenge to the district court attorney fee award,

we must first consider Horsley’s claim that we lack jurisdiction to consider the issue 

because the Division failed to file a notice of appeal from the district court’s order 

awarding attorney fees. Whether a court has jurisdiction to decide a particular matter is a 

question of law, which we review de novo. Scott v. Board of Trustees, 2015 WY 128, ¶ 

7, 357 P.3d 1137, 1138 (Wyo. 2015). 

[¶26] We have repeatedly held that a notice of appeal only perfects an appeal of the 

order(s) identified in the notice. Evans v. Moyer, 2012 WY 111, ¶ 18, 282 P.3d 1203, 

1209 (Wyo. 2012). We addressed a similar jurisdictional issue, with respect to an order 

on costs, in Nish v. Schaefer, 2006 WY 85, 138 P.3d 1134 (Wyo. 2006). In that case, the 

appellant, Mr. Nish, was injured when the bicycle he was riding collided with a van 

driven by the appellee, Mr. Schaefer. Id., ¶ 1, 138 P.3d at 1135. The district court 

entered judgment and awarded costs in favor of Mr. Schaefer. Id., ¶ 22, 138 P.3d at 

1142. Mr. Nish filed a notice of appeal from the judgment. Mr. Schaefer subsequently

submitted a motion outlining the specific costs requested, which the district court granted. 

Id. Mr. Nish filed a second notice of appeal, challenging the district court’s award of 

costs. Mr. Nish, however, did not file a brief in that appeal, and we dismissed the appeal 

for lack of prosecution. Id. We determined the appellant’s failure to pursue his appeal 

from the district court’s fee order deprived this Court of jurisdiction to consider the issue:

Pursuant to W.R.C.P. 58(c), a district court retains 

jurisdiction to determine a request for costs after a final 

judgment has been entered on the merits of the case. 

Andersen v. Hernandez, 2005 WY 142, ¶ 18, 122 P.3d 950, 

954 (Wyo. 2005). A pending motion for costs does not affect 

the finality of the judgment and does not stay the time for 

filing a notice of appeal from the judgment on the merits. 

W.R.A.P. 2.01, 2.02; Andersen, ¶ 16, 122 P.3d at [954]. 

W.R.A.P. 2.01 requires an appeal to be filed within thirty 

days from the entry of an appealable order, and W.R.A.P. 

2.07 directs the appellant to identify the order appealed and 
12

attach a copy of the order to the notice of appeal. The notice 

of appeal effects an appeal of the order identified in the 

notice. See W.R.A.P. 2.01, 2.07.

Our precedent reveals cases where we have 

considered, together, appeals from the judgment on the merits 

and a subsequent order on costs. See, e.g., Winterholler v. 

Zolessi, 989 P.2d 621 (Wyo. 1999); Schaub v. Wilson, 969 

P.2d 552 (Wyo. 1998). However, those cases involved a 

consolidation, for consideration and decision, of the appeal on 

the merits with the appeal of the costs award. They did not 

involve a unilateral decision by the appellant to ignore the 

separate appeals. In Centra, Inc. v. Chandler Ins. Co. Ltd, 

2000 U.S. App. LEXIS 22609, pp. 34-36 (10th Cir. 2000), the 

Tenth Circuit Court of Appeals recognized the importance of 

a separate appeal of an order on costs entered after the 

judgment on the merits. Pursuant to Fed. R. App. P. 

4(a)(1)(A), which is similar to W.R.A.P. 2.01, the Tenth 

Circuit ruled that, even though the judgment on the merits 

referenced costs by directing the parties to file motions for 

“attorneys’ fees and costs,” a separate appeal from the district 

court’s actual determination of the parties’ requests for costs 

was required. The appellant’s failure to file a separate notice

of appeal from the trial court’s order on costs deprived the 

court of appeals of jurisdiction over the matter. Id. Since Case 

No. 05-221 does not include an appeal from the district 

court’s order on costs, issues pertaining to that order cannot 

be raised in this appeal. We, therefore, decline to consider 

Mr. Nish’s claims of error regarding the award of costs.

Nish, ¶¶ 23-24, 138 P.3d at 1142-43. As noted above, the Division did not file a notice of 

appeal of the district court’s order. That order was entered over a month after the 

Division filed its only notice of appeal. Consequently, in accordance with Nish v. 

Schaefer, we must conclude that the failure to file a notice of appeal from the district 

court’s fee order deprives this Court of jurisdiction to consider the Division’s challenge 

to the award of attorney’s fees.

[¶27] Affirmed.