THE SUPREME COURT, STATE OF WYOMING

2023 WY 33

 APRIL TERM, A.D. 2023

April 20, 2023

HOPEFUL, a Wyoming partnership 

consisting of Edward F. Murray, Jr., 

Donald F. Murray, William M. Murray, 

Mary Ann Kulas f/k/a Mary Ann Hollis, and 

Ted Simola; HOPEFUL LTD., a Wyoming 

partnership consisting of Edward F. Murray, 

Jr., Donald F. Murray, William M. Murray, 

Mary Ann Hollis, and Ted Simola; and 

TED SIMOLA, an individual,

Petitioners,

v.

ETCHEPARE, L.L.C., a Wyoming limited 

liability company; NED MURRAY CO., 

a Wyoming partnership; 

GBK INVESTMENTS, L.L.C., an 

Oklahoma limited liability company; and 

EOG RESOURCES, INC., a Delaware 

corporation,

Respondents.

S-22-0171

Original Proceeding

Petition for Writ of Review

District Court of Laramie County

The Honorable Peter H. Froelicher, Judge
Representing Petitioners: 

Bernard Q. Phelan, The Phelan Law Firm, Cheyenne, Wyoming. Argument by Mr. 

Phelan. 

Representing Etchepare, L.L.C. and Ned Murray Co.: 

Jason D. Wasserburger and Rio D. Smith, WSH Law, P.C., Cheyenne, Wyoming. 

Argument by Mr. Wasserburger. 

Representing GBK Investments, L.L.C.: 

Amanda K. Roberts and J. Kyle Hendrickson, Lonabaugh and Riggs, LLP, 

Sheridan, Wyoming. 

Representing EOG Resources, Inc.: 

Lori A. McMullen, Lindsay A. Woznick, and Amanda M. Good, Crowley Fleck 

PLLP, Cheyenne, Wyoming. Argument by Ms. Good. 

Before FOX, C.J., and KAUTZ, GRAY, and FENN, JJ., and PEASLEY, D.J. 

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

GRAY, Justice.

[¶1] Hopeful partnership, Hopeful Ltd. (together, Hopeful entities), and Ted Simola, an 

individual, (Petitioners) filed a Petition for Writ of Review with this Court seeking 

interlocutory review of the district court’s orders denying their motion to dismiss and 

motion to set aside default. Petitioners claim the district court lacked subject matter 

jurisdiction and personal jurisdiction in the underlying declaratory judgment action 

because all parties were served by publication and no summons were issued. We find the 

district court had subject matter jurisdiction. The district court erred, however, in finding 

the service by publication conferred personal jurisdiction over the defendants with a known 

address. While the Hopeful entities waived their objections to personal jurisdiction by 

voluntarily submitting to the jurisdiction of the district court, the district court abused its 

discretion in denying their motion to set aside the default judgment. Affirmed in part and 

reversed in part.

ISSUES

[¶2] We phrase the issues as:

1. Does the failure to issue a summons to parties served by 

publication deprive the district court of subject matter 

jurisdiction and/or personal jurisdiction?

2. Did service by publication on parties with a known 

address in Wyoming confer personal jurisdiction?

3. Did Hopeful partnership, Hopeful Ltd., and Ted Simola 

waive personal service?

4. Did the district court err in entering a default judgment 

and denying the motion to set aside default?

FACTS

[¶3] On March 26, 2021, Etchepare, a Wyoming limited liability company, filed a 

Petition for Quiet Title and Declaratory Judgment naming Hopeful partnership and Hopeful 

Ltd., two Wyoming entities, and fourteen other entities, individuals and unknown claimants 

as defendants. The partners in both Hopeful entities consisted of the same individuals, 

Edward F. Murray, Jr., Donald F. Murray, William M. Murray, Mary Ann Kulas (nee 
2

Hollis),1 and Ted Simola.2 The petition sought to establish ownership of mineral interests 

located in Laramie County, Wyoming. 

[¶4] In conjunction with the filing of its petition, Etchepare filed an Affidavit for Service 

by Publication. The affidavit stated that the address of one defendant, a Pennsylvania 

entity, could not be ascertained after a reasonable and diligent search and that there were 

unknown putative defendants with claims against the identified mineral interests. The 

affidavit declared, “All other defendants have addresses which are known or through 

reasonable diligence were ascertained.” The affidavit did not contain the known addresses 

of the defendants but asserted that “after the first publication” “the notice of publication 

. . . will be mailed to each defendant whose address is known by certified mail.” On March 

31, Notice of Complaint and Service by Publication, signed by the district court clerk, was 

sent by certified mail to all defendants with a known address. Etchepare filed Proof of 

Service and Proof of Publication on May 6, 2021. Service by publication was completed 

on May 21, 2021, which was the last date of publication. No defendant was personally 

served and no summons were issued. 

[¶5] Etchepare filed two Applications for Entry of Default, one on May 24, 2021, and 

the other on May 26, 2021. Together, these applications requested an entry of default 

against ten defendants but did not request entry of default against the Hopeful entities or 

Ted Simola. Each application was granted by the district court on the same day it was 

filed. On June 8, 2021, Ned Murray Co. and Etchepare filed a Joint Motion and Stipulation 

to Realign Parties asking that Ned Murray Co. be removed as a Defendant and named as a 

Plaintiff on the grounds that Ned Murray Co. agreed with Etchepare’s claims regarding the 

current mineral interests. The same day, Ned Murray Co. and Etchepare filed a Motion to 

Bifurcate the claims against the Hopeful entities from the other defendants stating: 

Etchepare and Ned Murray Co. are in agreement with the 

allegations Etchepare made in its [petition] regarding the 

mineral interests owned by Hopeful and Hopeful Ltd. . . .

Issues have arisen regarding the distribution of the mineral 

interests of Hopeful and Hopeful Ltd. between the current 

partners Ned Murray Co.,[3] Ted Simola, and Mary Ann Kulas

. . . . These issues do not concern Etchepare nor involve the 

mineral interests to which Etchepare seeks to quiet title to and 

obtain a declaratory judgment . . . . Defendant Ted Simola has 

1 Mary Ann Kulas was known as Mary Ann Hollis at the inception of the partnerships.

2 William M. Murray died on March 23, 1990. Edward F. Murray, Jr., died on March 7, 2000. Donald F. 

Murray died on May 29, 2002. Ms. Kulas and Mr. Simola are the surviving original partners of the Hopeful 

defendants. 

3 Ned Murray Co. was not named as a partner in the Hopeful entities in the Complaint or in the Motion to 

Bifurcate. During the proceedings, an issue arose regarding the status of Ned Murray Co. in relation to the 

interests of Edward F. Murray, Jr. 
3

raised concerns regarding ownership of the partnership 

interests, distribution of the mineral interests to the current 

partners, payment of proceeds of production, and several other 

issues that remain unresolved. 

Etchepare and Ned Murray Co. requested the bifurcation so that claims against the other 

parties might proceed while the Hopeful entities addressed their unique claims in a separate 

proceeding. 

[¶6] On June 14, 2021, Mary Ann Kulas and Ted Simola filed a joint Answer of 

Defendants in their individual capacities.4

 They affirmatively asserted the Hopeful entities

dissolved as a matter of law in March 1990 upon the death of William M. Murray and that 

Ms. Kulas and Mr. Simola now held the mineral interests, together with certain other 

parties, as tenants in common.

[¶7] The district court granted the motion to realign the parties on July 2, 2021, and on 

August 23, 2021, issued its order granting the bifurcation of the proceedings.5

 On 

September 16, 2021, the district court entered an order granting a Partial Decree for Quiet 

Title and Declaratory Judgment. The order determined the interests of all defendants, 

including the Hopeful partnership, Hopeful Ltd., and Mr. Simola, subject to the issues 

addressed in the Order to Bifurcate. 

[¶8] The next relevant procedural event occurred on January 5, 2022, when the Hopeful 

entities, Ms. Kulas, and Mr. Simola filed a Motion to Amend Answer Clarifying the Status 

of the Partnerships; Asserting Counterclaims for Quiet Title, and Conversion of Funds and 

Cross Claims for Quiet Title and Trespass and Third Party Action for Conversion (Motion 

to Amend). Ned Murray Co. filed an objection to the Hopeful entities’ Motion to Amend 

asserting the Hopeful entities had not answered the Petition or entered an appearance. 

[¶9] A hearing was set for March 23, 2022. On the morning of the hearing, Etchepare 

and Ned Murray Co. filed an Application for Entry of Default against the Hopeful entities

for failure to timely answer the petition. The court orally denied the Hopeful entities’

Motion to Amend finding they had never filed an answer, no attorney had previously 

entered an appearance on behalf of Hopeful partnership or Hopeful Ltd and as a result, 

there was no answer to amend. The district court entered default against the Hopeful 

entities following the hearing. 

4 While Mr. Simola was named as an individual defendant based on his separate interest in some of the 

mineral leases, Ms. Kulas was sued only in her capacity as a partner in the Hopeful entities. Her response 

as an individual went unchallenged until recently. The parties have not resolved whether she will continue 

to be an individual party to this suit.

5 The Order to Bifurcate described Ned Murray Co. as a current partner in the Hopeful partnership and 

Hopeful Ltd.
4

[¶10] Two days later, the Hopeful entities filed an objection to the entry of default. They 

claimed they had never been served a summons, were not properly served, and had no

obligation to answer. The Hopeful entities averred that they were amenable to accepting 

personal service, and if service of process was accomplished, they were ready to proceed 

with this matter. In an alternative request for relief, they requested the matter be dismissed 

for lack of jurisdiction.

[¶11] Five days after the Hopeful entities’ motion to set aside default, the district court 

issued an Order Granting [Mr.] Simola’s and [Ms.] Kulas’ Motion to Amend Answer. This 

order did not address the motion to set aside default against the Hopeful entities.

[¶12] On April 13, 2022, the district court entered its written partial order denying the 

Hopeful entities’ motion to amend. On April 19, 2022, the Hopeful entities renewed their 

motion to dismiss the case based on jurisdictional defects. 

[¶13] The district court held a hearing on the Hopeful entities’ Motion to Set Aside Default 

on June 1, 2022. During the Hopeful entities’ argument, the district court read the 

following statement from JAG v. State:

In order for a court to acquire jurisdiction over a 

defendant, that defendant must be properly served or must 

“voluntarily” appear. A judgment entered without the court 

having jurisdiction is null and void. A defendant may waive 

his right to challenge a court’s jurisdiction. Such a challenge 

should be made at the defendant’s soonest opportunity. Failure 

to timely broach the issue with the court may result in waiver 

of that defense. Most importantly for this case, where a 

defendant appears voluntarily, without questioning the court’s 

personal jurisdiction, that appearance is the equivalent of 

proper service of process. We have held that a party will be 

deemed to have appeared in an action, even though no formal 

pleadings have been entered, when contacts between the 

parties clearly demonstrate an intent to defend.

JAG v. State, Dep’t of Fam. Servs., Div. of Pub. Assistance & Soc. Servs., 2002 WY 158, 

¶ 13, 56 P.3d 1016, 1019 (Wyo. 2002) (citations omitted). The district court asked why 

that statement would not apply to the Hopeful entities in this case. The Hopeful entities’ 

attorney responded, “The keyword is ‘service.’ . . . [S]ervice is delivering the summons 

with the complaint together so as to give notice to the defendant of the courts taking 

jurisdiction having issued a summons. There must be a summons.” 

[¶14] Ned Murray Co. moved to dismiss the motion to set aside default. In an oral ruling, 

the district court dismissed the request to set aside default. It held the Hopeful entities did 
5

not present any evidence in relation to the three-factor test to set aside default: “whether 

the plaintiff [would] be prejudiced, whether the defendant has a meritorious defense, and 

three, whether there’s culpable conduct of the defendant that led to the default.” The 

district court further ruled that service by publication under W.R.C.P. 4(k) does not contain 

a requirement that a summons be issued before service is valid. After this ruling, Ned 

Murray Co. requested that the court deny the Hopeful entities’ motion to dismiss the 

complaint for lack of subject matter and personal jurisdiction based on their failure to prove 

insufficient service of process by clear and convincing evidence. 

[¶15] The district court entered two written orders on June 22, 2022, one denying Hopeful 

entities’ motion to set aside default and one denying the motion to dismiss. In the order 

denying the motion to set aside default, the district court reiterated its oral finding that the 

Hopeful entities had failed to present sufficient evidence to support their motion under 

W.R.C.P. 55 (Rule 55). In the order denying the motion to dismiss, the court ruled that 

Etchepare and Ned Murray Co. complied with all of the rules regarding service by 

publication, and there is no requirement for a summons when serving a defendant by 

publication. The district court held the actions of Mr. Simola and Ms. Kulas did not inure 

a benefit to the Hopeful entities and constitute an answer or appearance on behalf of the 

Hopeful entities prior to default and Mr. Simola and Ms. Kulas could not and did not 

represent all of the partnership interest in the Hopeful entities, which are currently in 

opposition to one another. 

[¶16] The Hopeful entities and Mr. Simola filed a Petition for Writ of Review with this 

Court on July 7, 2022. After reviewing all responsive pleadings, the petition was granted 

on August 2, 2022. The district court issued an order staying all current pleadings, 

deadlines to respond to pleadings, and a hearing scheduled for August 26, pending this 

Court’s resolution of the writ of review. 

STANDARD OF REVIEW 

[¶17] When a writ of review is granted, the reviewing court “may set forth the particular 

issue or point of law which will be considered.” W.R.A.P. 13.07(a). The reviewing court’s 

review is not limited to only an issue defined by the respondent. Instead the reviewing 

court may “reverse, vacate, remand or modify the decision for errors appearing on the 

record.” W.R.A.P. 13.08; Wofford v. City of Laramie, 2016 WY 59, ¶ 14, 375 P.3d 740, 

745 (Wyo. 2016) (quoting Bd. of Cnty. Comm’rs for Sublette Cnty. v. Exxon Mobil Corp., 

2002 WY 151, ¶ 21, 55 P.3d 714, 721 (Wyo. 2002)). 

[¶18] Jurisdictional questions are reviewed de novo review pursuant to “the inherent 

power, and the duty, to address jurisdictional defects on appeal . . . .” Walton v. State ex 

rel. Wood, 2002 WY 108, ¶ 6, 50 P.3d 693, 695 (Wyo. 2002) (quoting Gookin v. State 

Farm Fire & Cas. Ins. Co., 826 P.2d 229, 232 (Wyo. 1992)). “If a lower court acts without 

jurisdiction, ‘this court will notice the defect and have jurisdiction on appeal, not on the 
6

merits, but merely for the purpose of correcting the error of the lower court in maintaining 

the suit.’” Id. (quoting Gookin, 826 P.2d at 232). 

[¶19] “We review the question of whether the district court correctly interpreted the rules 

of civil procedure de novo.” Dishman v. First Interstate Bank, 2015 WY 154, ¶ 13, 362 

P.3d 360, 365 (Wyo. 2015) (citing Windham v. Windham, 2015 WY 61, ¶ 12, 348 P.3d 

836, 840 (Wyo. 2015) (applying de novo standard of review to Rule 37 interpretation)). 

The words of a court rule, like those of a statute, must be taken 

and construed in the sense in which they were understood and 

intended at the time the rule was promulgated. We do not 

examine the rules in isolation, but instead read them in light of 

one another and interpret them according to their purpose. 

Shamrock Dev., Inc. v. Smith, 754 N.W.2d 377, 382 (Minn. 2008) (citations and internal 

quotation marks omitted). 

ANALYSIS 

I. Does the failure to issue a summons to parties served by publication deprive the 

district court of subject matter jurisdiction and/or personal jurisdiction? 

[¶20] This appeal raises issues of subject matter jurisdiction and personal jurisdiction 

based on service by publication. The Hopeful entities claim that the failure to serve the 

defendants with a summons deprived the district court of both subject matter jurisdiction 

and personal jurisdiction. With equal vehemence, Ned Murray Co. and Etchepare argue 

that subject matter jurisdiction vested with the district court upon filing their claim, service 

of process by publication is proper if there is but one defendant who resides out of state 

with an unknown address, and service by publication on this premise is sufficient to 

accomplish personal jurisdiction over all parties. For reasons discussed below, both 

arguments are flawed. 

A. Subject Matter Jurisdiction 

[¶21] The Hopeful entities claim that W.R.C.P. 4 requires a plaintiff to request a summons 

in every case before subject matter jurisdiction resides with the district court. “Subject 

matter jurisdiction is the power to hear and determine cases of the general class to which 

the proceedings in question belong.” MH v. First Jud. Dist. Ct. of Laramie Cnty., 2020 

WY 72, ¶ 5, 465 P.3d 405, 407 (Wyo. 2020) (quoting Devon Energy Prod. Co., LP v. 

Grayson Mill Operating, LLC, 2020 WY 28, ¶ 11, 458 P.3d 1201, 1205 (Wyo. 2020)). “If 

a court lacks subject matter jurisdiction, ‘action taken by that court, other than dismissing 

the case, is considered to be null and void.’” Id. (quoting Devon, ¶ 11, 458 P.3d at 1205). 

Subject matter jurisdiction cannot be waived. Pilcher v. Elliott, 2020 WY 130, ¶ 16, 473 
7

P.3d 1251, 1255 (Wyo. 2020). When “construing the subject matter jurisdiction of district 

courts, we presume that jurisdiction exists and any intent to limit it must be clearly stated.” 

MH, ¶ 5, 465 P.3d at 407 (citing Harmon v. Star Valley Med. Ctr., 2014 WY 90, ¶ 48, 331 

P.3d 1174, 1188 (Wyo. 2014)). 

[¶22] Wyoming courts derive their subject matter jurisdiction from the Wyoming 

Constitution art. 5, § 10 which states the district courts have “original jurisdiction of all 

causes both at law and in equity . . . in which jurisdiction shall not have been by law vested 

exclusively in some other court[.]” “Our precedent makes clear that Wyoming courts have 

jurisdiction over mineral disputes between private parties, even where federal leases may 

be concerned.” BTU W. Res., Inc. v. Berenergy Corp., 2019 WY 57, ¶ 13, 442 P.3d 50, 54 

(Wyo. 2019) (citations omitted). 

[¶23] The Hopeful entities argue that even if the district court had general jurisdiction 

over the matter, failure of a plaintiff to request a summons invoking the court’s authority 

prevents subject matter jurisdiction over any matter until a summons is issued pursuant to 

W.R.C.P. 4. They cite to a line of North Carolina cases which hold that a failure to serve 

a summons negates personal jurisdiction, but a failure to issue a summons is a matter of 

subject matter jurisdiction. Matter of Mitchell, 485 S.E.2d 623, 624 (N.C. Ct. App. 1997) 

(“Where no summons is issued the court acquires jurisdiction over neither the persons nor 

the subject matter of the action.” (citing Swenson v. All Am. Assur. Co., 235 S.E.2d 793 

(N.C. Ct. App. 1977))); Wayne Cnty. ex rel. Williams v. Whitley, 323 S.E.2d 458, 461 (N.C. 

Ct. App. 1984) (“Under G.S. 1A–1, Rule 4(a), a summons must be issued within five days 

of the filing of the complaint. Where a complaint has been filed and a proper summons 

does not issue within the five days allowed under the rule, the action is deemed never to 

have commenced.”). 

[¶24] The North Carolina Supreme Court has since negated the holding in Mitchell. In In 

re K.J.L., the court held that the failure to legally issue a summons does not implicate the

court’s jurisdiction over the subject matter of an action. In re K.J.L., 677 S.E.2d 835, 837–

38 (N.C. 2009). “The allegations of a complaint determine a court’s jurisdiction over the 

subject matter of the action,” and “the summons affects jurisdiction over the person rather 

than the subject matter.” Id. at 837.

[¶25] Wyoming law is similar. “[S]ubject matter jurisdiction is invoked with the filing of 

a complaint stating a case belonging to a general class over which the authority of the court 

extends.” Brown v. City of Casper, 2011 WY 35, ¶ 44, 248 P.3d 1136, 1146 (Wyo. 2011) 

(citing State v. Kusel, 29 Wyo. 287, 297, 213 P. 367, 369 (1923)). “[A] court does not lose

subject matter jurisdiction over an action for failure to comply with statutory procedural 

requirements unless the statute contains an ‘unequivocal expression’ that failure to comply 

shall result in a loss of jurisdiction.” Linch v. Linch, 2015 WY 141, ¶ 32, 361 P.3d 308, 

316 (Wyo. 2015) (citations omitted); Fleet v. Guyette, 2020 WY 78, ¶¶ 17–18, 466 P.3d 

812, 818–19 (Wyo. 2020). 
8

[¶26] Rule 4 contains no “unequivocal expression” that the failure to issue a summons 

causes a loss of subject matter jurisdiction. Indeed, we have held that “[a] summons is ‘the 

means of compelling a defendant to subject his person to the jurisdiction of the court from 

which the summons issues.’” Hoke v. Motel 6 Jackson, 2006 WY 38, ¶ 7, 131 P.3d 369, 

374 (Wyo. 2006) (emphasis added) (quoting Pease Bros. v. Am. Pipe & Supply Co., 522 

P.2d 996, 1001 (Wyo. 1974)). 

[¶27] The district court acquired subject matter jurisdiction on the filing of Etchepare’s 

complaint. W.R.C.P. 3 (“A civil action is commenced by filing a complaint with the 

court[.]”). 

II. Did service by publication on parties with a known address in Wyoming confer 

personal jurisdiction? 

A. Personal Jurisdiction 

[¶28] “[W]hile subject matter jurisdiction refers to the power of a court to hear and 

determine certain classes of cases,” “[p]ersonal jurisdiction refers to the power of a court 

to make an adjudication applicable to a person.” Pilcher, ¶ 16, 473 P.3d at 1255 (quoting 

Crofts v. State ex rel. Dep’t of Game & Fish, 2016 WY 4, ¶ 38, 367 P.3d 619, 628 (Wyo. 

2016)). Subject matter jurisdiction cannot be waived. Personal jurisdiction, however, can 

be waived if a party does not object to personal jurisdiction at the earliest opportunity. 

Pilcher, ¶ 16, 473 P.3d at 1255; Cotton v. Brow, 903 P.2d 530, 531 (Wyo. 1995). 

[¶29] “The proper service of process is necessary to acquire [personal] jurisdiction under 

the due process provisions of both the federal and Wyoming constitutions. Wyo. Const. 

art. 1, § 6; U.S. Const. amend. XIV, § 1.” Gookin, 826 P.2d at 232. “It has long been the

rule that a valid judgment imposing a personal obligation or duty in favor of the plaintiff 

may be entered only by a court having jurisdiction over the person of the defendant.” Id.

(quoting Kulko v. Superior Ct. of California In & For City & Cnty. of San Francisco, 436 

U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d 132 (1978)). “While a court may have subject 

matter jurisdiction, it is clear that without adequate notice to the defendant and opportunity 

to be heard, jurisdiction does not exist for the proceeding.” Gookin, 826 P.2d at 233 (citing 

Goss v. Goss, 780 P.2d 306, 310 (Wyo. 1989); 62B Am. Jur. 2d Process § 4 (1990)). 

[¶30] Courts allow infringement on the fundamental due process rights to notice and an 

opportunity to be heard only to the extent permitted by legislative or judicially promulgated 

rules of procedure. Goss, 780 P.2d at 310. The general rule requires strict compliance 

with statutes or rules setting forth the requirements for service of process. Id. (citing 

Midway Oil Corp. v. Guess, 714 P.2d 339, 342 (Wyo. 1986)). 
9

[¶31] The Hopeful entities claim the district court did not have jurisdiction because they 

were never personally served with a summons. The district court held that, because 

Etchepare filed an affidavit stating that, after a diligent search, the whereabouts of one of 

the defendants could not be found, and that there were unknown defendants, all of the 

defendants could be served by publication. It found that Etchepare had complied with 

the requirements of service by publication, and therefore the court had personal jurisdiction 

over all the defendants, including the Hopeful entities. The district court also determined 

that a summons was not necessary when accomplishing service by publication. 

[¶32] We begin by discussing the propriety of applying service by publication to all 

defendants if only one named defendant or the presence of unknown defendants falls within 

the rule’s requirements. We then address whether a summons is required when service of 

process is accomplished by publication. 

B. Service of Process

[¶33] W.R.C.P. 4 (Rule 4) governs the service of process, consistent with specific 

Wyoming statutory requirements. Rule 4 divides service of process into two categories:

personal service and constructive service. In Int. of DG, 825 P.2d 369, 374–77 (Wyo. 

1992). 

1. Personal Service

[¶34] Personal service is the preferred method to notify a defendant subject to a lawsuit. 

First Wyo. Bank, N. A., Rawlins v. Trans Mountain Sales & Leasing, Inc., 602 P.2d 1219, 

1225 (Wyo. 1979). Under Rule 4, personal service begins with the issuance of a summons: 

Rule 4. Summons.

(a) Contents.—A summons must: 

(1) name the court and the parties; 

(2) be directed to the defendant; 

 (3) state the name and address of the plaintiff’s attorney 

or—if unrepresented—of the plaintiff; 

 (4) state the time within which the defendant must appear 

and defend; 
10

 (5) notify the defendant that a failure to appear and defend 

may result in a default judgment against the defendant for 

the relief demanded in the complaint; 

 (6) be signed by the clerk; and 

 (7) bear the court’s seal. 

(b) Issuance.—On or after filing the complaint, the plaintiff 

may present a summons to the clerk for signature and seal. If 

the summons is properly completed, the clerk must sign, seal, 

and issue it to the plaintiff for service on the defendant. A 

summons—or a copy of a summons that is addressed to 

multiple defendants—must be issued for each defendant to be 

served. 

(c) By Whom Served.—Except as otherwise ordered by the 

court, process may be served: 

 (1) By any person who is at least 18 years old and not a 

party to the action; 

 (2) At the request of the party causing it to be issued, by the 

sheriff of the county where the service is made or sheriff’s 

designee, or by a United States marshal or marshal’s 

designee; 

 (3) In the event service is made by a person other than a 

sheriff or U.S. marshal, the amount of costs assessed 

therefor, if any, against any adverse party shall be within 

the discretion of the court. 

(d) Personal Service.—The summons and complaint shall be 

served together. The plaintiff shall furnish the person making 

service with such copies as are necessary. 

W.R.C.P. 4(a)–(d). 

2. Service by Publication 

[¶35] “The second category of service is generally defined to be constructive service.” 

DG, 825 P.2d at 375. “Constructive service differs significantly from personal service 

made within the jurisdiction and may include service by publication[.]” Id. “Publication 
11

is an inferior form of service to personal delivery.” First Wyo. Bank, 602 P.2d at 1225 

(citing In re Lonquest’s Est., 526 P.2d 994, 998 (Wyo. 1974)). Service by publication must 

strictly conform to the authorizing statute and Rule 4. Id.

[¶36] Rule 4 limits service by publication to specific defendants. Rule 4(k) states: 

(k) Service by Publication.—Service by publication may be 

had where specifically provided for by statute, and in the 

following cases: 

(1) When the defendant resides out of the state, or the 

defendant’s residence cannot be ascertained, and the 

action is: 

(A) For the recovery of real property or of an estate or 

interest therein; 

(B) For the partition of real property; 

(C) For the sale of real property under a mortgage, 

lien or other encumbrance or charge; 

(D) To compel specific performance of a contract of 

sale of real estate; 

W.R.C.P. 4(k)(1) (emphasis added). Here, the Hopeful entities usual place of business was 

Laramie County, and at least one of the original surviving partners resided in Laramie 

County with a known address. 

[¶37] To ensure each defendant is eligible for service by publication, Rule 4(l) requires 

counsel to file an affidavit explaining why that defendant qualifies for service by 

publication. Rule 4(l) states:

(l) Requirements for Service by Publication.— 

(1) Affidavit Required.—Before service by publication 

can be made, an affidavit of the party, or the party’s agent 

or attorney, must be filed stating: 

(A) that service of a summons cannot be made within 

this state, on the defendant to be served by publication, 

and 
12

(B) stating the defendant’s address, if known, or that 

the defendant’s address is unknown and cannot with 

reasonable diligence be ascertained, and

(C) detailing the efforts made to obtain an address, and

(D) that the case is one of those mentioned in 

subdivision (k), and 

(E) when such affidavit is filed, the party may proceed 

to make service by publication. 

(2) Publication and Notice to Clerk.

(A) Address in publication.—In any case in which

service by publication is made when the address of a 

defendant is known, it must be stated in the publication. 

(B) Notice to and from clerk.—Immediately after the 

first publication the party making the service shall 

deliver to the clerk copies of the publication, and the 

clerk shall mail a copy to each defendant whose name 

and address is known by registered or certified mail and 

marked “Restricted Delivery” with return receipt 

requested, directed to the defendant’s address named 

therein, and make an entry thereof on the appearance 

docket. 

(C) Affidavit at time of hearing.—In all cases in which 

a defendant is served by publication of notice and there 

has been no delivery of the notice mailed to the 

defendant by the clerk, the party who makes the service, 

or the party’s agent or attorney, at the time of the 

hearing and prior to entry of judgment, shall make and 

file an affidavit stating 

(i) the address of such defendant as then known 

to the affiant, or if unknown, 

(ii) that the affiant has been unable to ascertain 

the same with the exercise of reasonable diligence, 

and 
13

(iii) detailing the efforts made to obtain an 

address. 

 Such additional notice, if any, shall then be given 

as may be directed by the court. 

W.R.C.P. 4(l) (emphasis added). 

[¶38] In this case, once Etchepare identified one defendant that could not be found and 

that there were possibly other unknown defendants, it eschewed personal service on all 

defendants. As conceded by counsel in oral argument, Etchepare could have personally 

served the Hopeful entities and the surviving original partners. Nonetheless, it determined 

that, due to the large number of defendants in this lawsuit, personal service on each 

defendant was “impracticable.” The district court validated Etchepare’s choice, finding 

Etchepare had complied with all Rule 4 requirements regarding service by publication 

resulting in its personal jurisdiction over all defendants.6 As discussed below, the 

assumption that one defendant’s due process rights can control the rights of all other 

defendants is contrary to the specific language in Rule 4. Etchepare did not comply with 

the rule’s specific requirements to effectuate service. 

[¶39] Etchepare filed its complaint on March 26, 2021. The same day, without seeking 

any summons, it filed its Affidavit for Service by Publication. The affidavit stated in full: 

1. I am an attorney at law with an office in Cheyenne, 

Wyoming, am an adult, and have personal knowledge of all 

matters stated herein. 

2. Service of a Summons on each of the Defendants identified 

herein cannot be made. 

3. Holmes Jones Petroleum is a purported Pennsylvania entity 

whose physical address and/or successor-in-interest address 

cannot be ascertained. 

4. A reasonable diligent search for the address of Holmes 

Jones Petroleum was conducted in the entity and business 

records on file with the Wyoming Secretary of State and the 

Pennsylvania Secretary of State and in addition to a search of 

the Grantor/Grantee index in the Clerk’s Office of Laramie 

6 We address only the claims filed by the Hopeful entities, although we note there were numerous 

defendants served by publication who did not appear before the district court and were defaulted for failing 

to answer Etchepare’s complaint. See infra ¶ 57. 
14

County, Wyoming. A general search online also found no 

results. 

5. The other putative claimants against the identified lands, all 

situate in Laramie County, Wyoming, are unknown.

6. This is a proper case for Service by Publication under 

W.R.C.P. 4(k)(1)(A), (k)(3)(A)-(C), (k)(4)(A) and (E), and (o) 

of the Wyoming Rules of Civil Procedure. 

7. All other defendants have addresses which are known 

or through reasonable diligence were ascertained. 

8. Pursuant to W.R.C.P. 4(l)(2)(B) and after the first 

publication, I will deliver to the district court clerk a copy of 

the notice of publication, which will be mailed to each 

defendant whose address is known by certified mail with return 

receipt requested directed to the respective defendant’s 

address. 

9. Answers from all defendants shall be due within 30 days 

after the date of last publication pursuant to W.R.C.P.

12(a)(1)(A)(iii). 

(Emphasis added.)

[¶40] Etchepare argues its affidavit and all other procedures strictly complied with the 

rules for service by publication. It maintains that “Because there were unknown claimants 

and a defendant with an unknown address, this matter was a case ripe for service by 

publication.” It cites no case law for the proposition that because one defendant meets the 

criteria for service publication, all defendants including those located in the county with a 

known address may be served by publication, so we must assume Etchepare’s argument 

rests on the plain language of the rule itself. “We interpret rules in the same manner as

statutes, looking first to the plain language.” RME Petroleum Co. v. Wyo. Dep’t of 

Revenue, 2007 WY 16, ¶ 43, 150 P.3d 673, 688 (Wyo. 2007). 

[¶41] Under the plain language of Rule 4(l)(1)(A) and (B), an affidavit must establish that

“service of a summons cannot be made within this state, on the defendant to be served by 

publication” and must “stat[e] the defendant’s address, if known.” (Emphasis added.) 

This language unambiguously refers to each defendant to be served by publication. The 

affidavit does not list the address of each defendant, nor does it state that service of 

summons cannot be made on the defendants to be served by publication. Rather, it 

identifies only one out-of-state defendant that could not be served by summons and it cites 
15

unknown “putative” defendants. Etchepare’s proof of service by certified mail lists at least 

ten of the defendants with known addresses in Cheyenne, Wyoming. Each could have been 

personally served with a proper summons.7 

[¶42] In Mullane v. Cent. Hanover Bank & Tr. Co., 339 U.S. 306, 70 S.Ct. 652, 94 L.Ed. 

865 (1950), and Walker v. City of Hutchinson, Kan., 352 U.S. 112, 77 S.Ct. 200, 1 L.Ed.2d 

178 (1956), the United States Supreme Court determined that due process requires notice 

and opportunity for hearing appropriate to the nature of the case and that process which is 

a mere gesture does not satisfy the requirements of due process. Although Mullane

approved publication notice to those whose addresses were unknown, the Court stated that 

where an address is “at hand, the reasons disappear for resort to means less likely than the 

mails to apprise them of its pendency.” Mullane, 399 U.S. at 318, 70 S.Ct. at 659. See 

also Indian Hills Holdings, LLC v. Frye, 337 F.R.D. 293, 299 (S.D. Cal. 2020) (“Under 

California law, ‘[c]onsistent with the notions of fair play and due process, substituted

service by publication is “a last resort” when “reasonable diligence to locate a person in 

order to give him notice before resorting to the fictional notice afforded by publication” 

has been exercised.’” “Personal service remains the method of choice under the statutes 

and the constitution . . . .” (citations omitted)); O’Donnell v. Kaye, 2015 WI App 7, ¶ 11, 

859 N.W.2d 441, 445 (“[E]very measure which the legislature has adopted for the purpose 

of securing . . . that the [defendant] may receive actual notice, should be particularly carried 

into effect.” (citation omitted)); Johnson v. Cintas Corp. No. 2, 2012 WI 31, ¶ 43, 811 

N.W.2d 756, 768 (“[A]ctual notice alone is not enough to confer jurisdiction upon the 

court. Service must be made in accordance with the manner prescribed by statute.”

(citations omitted)); 2A Stephen A. Hess, Colo. Prac., Methods Of Practice § 75:11 n.2 

(7th ed. 2022 update) (“In cases affecting specific property or status or in other proceedings

in rem, C.R.C.P. 4(g) specifically authorizes service by publication only upon those 

defendants who cannot be served personally.”).8

[¶43] Etchepare’s interpretation of Rule 4 would allow service by publication on all 

defendants in every case where a plaintiff cannot find one of any number of defendants or 

7

 “Prejudice [to the plaintiff] does not factor into our analysis because we have long required strict 

compliance with rules governing service by publication.” Tarter v. Tarter, 2020 WY 80, ¶ 13, 466 P.3d 

829, 832 (Wyo. 2020) (citing Goss, 780 P.2d at 312 (The requirements of W.R.C.P. 4 concerning service

by publication “are minimal and demand strict compliance.”)). 

8

 Personal service, where possible, should be employed. It is 

considered a more desirable method of giving notice than is any form of 

substituted or constructive service, and it is required that an affidavit be 

filed if other than personal service is desired setting forth the reasons why 

personal service cannot be obtained. If such an affidavit is filed as to a 

person who is present in the jurisdiction, and could be personally served 

without difficulty, then there is a possibility of subsequent attack on any 

judgment rendered on grounds of extrinsic fraud. 

1 Marlin M Volz, Jr., Ia. Prac., Methods of Practice § 3:5 (1917) (citing Main v. Kick, 180 Iowa 50, 161 

N.W. 711 (1917)). 
16

avers there may be unknown claimants. Such an interpretation would eviscerate the due 

process protections contained with Rule 4. “[W]e will not interpret a statute in a way that 

renders any portion meaningless or in a manner producing absurd results.” Solvay 

Chemicals, Inc. v. Wyo. Dep’t of Revenue, 2022 WY 124, ¶ 17, 517 P.3d 1146, 1152 (Wyo. 

2022) (quoting Delcon Partners LLC v. Wyo. Dep’t of Revenue, 2019 WY 106, ¶ 11, 450 

P.3d 682, 686 (Wyo. 2019)); see also Adekale v. State, 2015 WY 30, ¶ 13, 344 P.3d 761, 

765–66 (Wyo. 2015) (“This Court will not interpret a statute in . . . a manner producing 

absurd results.” (citing Stutzman v. Off. of Wyo. State Eng’r, 2006 WY 30, ¶ 16, 130 P.3d 

470, 475 (Wyo. 2006))); State, Dep’t of Corr. v. Watts, 2008 WY 19, ¶ 23, 177 P.3d 793, 

799 (Wyo. 2008) (“We construe a statutory provision to harmonize it with other provisions 

relating to the same subject matter.”); Wilson Advisory Comm. v. Bd. of Cnty. Comm’rs, 

2012 WY 163, ¶ 31, 292 P.3d 855, 863 (Wyo. 2012).

[¶44] Service by publication is not a shortcut on the way to the courthouse. “The attorney 

for a litigant is responsible for strict compliance with the rules and statutes authorizing 

substituted service.” Gookin, 826 P.2d at 235 (citing Nat’l Supply Co. v. Chittim, 387 P.2d 

1010, 1012 (Wyo. 1964)). “The court’s inquiry must be as to whether the requisites of the 

controlling statute have been complied with and such compliance appears on record.” Id.

(citing Napoleon B. Broward Drainage Dist. v. Certain Lands Upon Which Taxes Were 

Due, 33 So. 2d 716, 718 (Fla. 1948)). Etchepare’s affidavit for service by publication was 

deficient on its face. The record indisputably reflects the Hopeful entities’ usual place of 

business was Laramie County and that Ted Simola resided in Laramie County with a 

known address. The Hopeful entities and Ted Simola were not subject to substitute service. 

Personal service with a summons and complaint were necessary to provide the district court 

with personal jurisdiction. Unless personal jurisdiction is waived, “[a] judgment entered 

without proper service of the summons is void and subject to attack directly or collaterally.” 

Hoke, ¶ 7, 131 P.3d at 374. 

3. Summons in Service by Publication 

[¶45] The Hopeful entities claim that the district court erred when it determined that a 

request for a summons is not required when service of process is proper under Rule 4(k) 

and (l). In its written order, the district court held the service by publication was properly 

effectuated and added, “The Court additionally notes that there is no requirement to request 

a summons in order to do service by publication as alleged by Defendants Hopeful 

Partnerships.” As we have not previously addressed this issue, we consider the reasoning 

of the decisions of other courts which have considered this question. 

[¶46] In McCoy v. McCoy, the court reviewed the North Carolina rule regarding service 

by publication and its requirement of due diligence. It reasoned: 

Adoption of our new Rules of Civil Procedure has made 

no change in our practice in this regard. Rule 4(j)(9)c, which 
17

sets forth the procedure for service of process by publication, 

reads in pertinent part as follows: 

c. Service by publication.—A party subject to service of 

process under this subsection (9) may be served by 

publication whenever the party’s address, whereabouts, 

dwelling house or usual place of abode is unknown and 

cannot with due diligence be ascertained, Or there has 

been a diligent but unsuccessful attempt to serve the 

party under either paragraph a or under paragraph b or 

under paragraphs a and b of this subsection (9). 

This subparagraph appears in Rule 4(j), which deals 

with the manner of service of process to exercise personal 

jurisdiction. It is noteworthy that every subparagraph of Rule 

4(j) speaks of or clearly contemplates “delivering a copy of the 

summons and of the complaint,” with the sole exception of 

subparagraph c of subsection (9) quoted above. The omission 

of any reference to a summons in subparagraph 9(c) is, we 

think, significant. Had the Legislature intended to make a 

change in our practice so as to require the “useless formality” 

of issuance of a summons and return thereon that defendant 

was not to be found in the county as a prerequisite to validity 

of a service by publication, surely some reference to a 

summons would have been made in subparagraph 9(c) as it was 

in all other subparagraphs of Rule 4(j). It should also be noted 

that subparagraph 9(c) is itself expressed in the disjunctive; it 

does not require a showing Both that the whereabouts of the 

party to be served cannot with due diligence be ascertained 

And that there has been a diligent but unsuccessful attempt to 

serve him under one of the preceding subparagraphs of 

subsection (9) under which a summons would necessarily have 

been issued. 

We see no reason why, now more than formerly, due 

diligence should require performance of a useless formality. 

Nothing in the Rules of Civil Procedure indicates that the 

Legislature intended that it should. Logical interpretation of 

the language employed suggests strongly to the contrary. 

McCoy v. McCoy, 223 S.E.2d 513, 515–16 (N.C. Ct. App. 1976) (emphasis added). This 

ruling was recognized in Wayne Cnty. ex rel. Williams v. Whitley, where the court stated: 
18

[I]f the circumstances are such to justify service of process by 

publication (in other words, even with due diligence the 

defendant cannot be personally served) and the plaintiff’s 

cause of action has not yet abated, then as this Court indicated 

in McCoy, we see no reason to require the “useless formality”

of having an alias or pluries summons issued. 

Whitley, 323 S.E.2d at 462 (citing McCoy, 223 S.E.2d at 515). 

[¶47] Similarly, in Shaffer v. Shaffer, the court reasoned: 

The issuance of the summons is a clerical act and, of 

course, takes place before the service of the summons upon the 

defendant. It is this act of the Clerk in conjunction with the 

filing of the petition which completes the commencement of 

the action as ordinarily understood under G.C. § 11279. It has 

been stated that, “Where actions are commenced by issuance 

of process, an action is commenced as of the time when the 

writ or summons is properly issued, with a bona fide intention 

that it be served, although service is not actually had.” 

(Emphasis ours.) 1 C.J.S. Actions § 129, p. 1397. 

It would seem appropriate that the issuance of a 

summons should only answer the purposes of the statute, if 

done with the intention that it be served. So that, in a situation 

such as is found in the instant case, the issuance of a summons 

would have been a vain and futile act for the obvious reason 

that the plaintiff knew at the time of the filing of her petition 

that the defendant could not be served with summons. If the

statute be given literal interpretation, then, notwithstanding the 

knowledge of the plaintiff that a summons could not be served, 

she would be required to have it issued because the letter of the 

statute so required. Having done so, this act, though obviously 

not made in good faith, would constitute the commencement 

of her action. But the filing of her affidavit for service by 

publication in due form, without first the issuance of a 

summons would not constitute the commencement of her 

action. Such a holding seems contrary to the spirit and 

manifest purposes of G.C. § 11279. 

Shaffer v. Shaffer, 42 N.E.2d 176, 179 (Ohio Ct. App. 1941); see also Martin v. Pond, 30 

F. 15, 18 (C.C.D. Minn. 1887) (“it may be conceded that notice to the defendant is essential 

to divest him of his rights and interests. But the publication is the notice,—it is the
19

equivalent to the personal service of a summons; and it is not pretended that there was any 

defect in the publication in the case at bar. The defect alleged is in the affidavit for

publication.”). 

[¶48] W.R.C.P. 4(m)(4) sets forth the specific information which must be included in the 

published notice:

(m) Publication of Notice.

. . . 

 (4) publication must contain 

(A) a summary statement of the object and prayer 

of the complaint, 

 (B) mention the court wherein it is filed, 

(C) notify the person or persons to be served when 

they are required to answer, and 

(D) notify the person or persons to be served that 

judgment by default may be rendered against them 

if they fail to appear. 

W.R.C.P. 4(m)(4).9 In comparison, a summons under Rule 4(a) requires: 

9

 The published Notice of Publication of Summons and Notice of Hearing stated: 

TO: Each of the Above-Named Defendants and Claimants

You are notified that on March 26, 2021, Plaintiffs Etchepare LLC 

(hereinafter referred to as Plaintiff) filed its Petition for Quiet Title and 

Declaratory Judgment (hereinafter the Petition) in the District Court of the 

First Judicial District, Laramie County, Wyoming, being Civil Action No. 

194574. The object and prayer of the Petition in this matter is for the 

recovery of interest in, certain real property (mineral interests) situate in 

Laramie County, Wyoming, more particularly as either a 3.125% or 12.5% 

mineral interest in and under the following described lands [listing legal 

descriptions]. 

You are hereby summoned to serve upon the Plaintiff an Answer to the 

Petition within thirty (30) days after the last day of publication of this 

notice. Should you fail to file an Answer, the allegations of such Petition 

shall be taken as true, and the relief sought, [describing relief sought] will 

be granted and judgment entered against you. . . . 

A current address for Holmes Jones Petroleum is unknown at this time. 

Addresses for [named defendants] are known at this time and Notice will 
20

(a) Contents.—A summons must: 

(1) name the court and the parties; 

(2) be directed to the defendant; 

(3) state the name and address of the plaintiff’s attorney 

or—if unrepresented—of the plaintiff; 

(4) state the time within which the defendant must appear 

and defend; 

(5) notify the defendant that a failure to appear and defend 

may result in a default judgment against the defendant for 

the relief demanded in the complaint; 

(6) be signed by the clerk; and 

(7) bear the court’s seal. 

W.R.C.P. 4(a). 

[¶49] The information required in a summons is generally the same as that provided in a 

notice by publication other than a summons must be signed by the clerk and bear the court’s 

seal. There is no mention of a summons in Rule 4(m). Given that a proper defendant for 

service by publication could not be personally served a summons, we agree with the 

reasoning of the cases cited above. Requiring a summons when service is accomplished 

by publication, absent a statute or rule to the contrary, would only demand the exercise of 

a futile act. Such acts are generally not required. See Jontra Holdings Pty Ltd v. Gas 

Sensing Tech. Corp., 2021 WY 17, ¶ 61, 479 P.3d 1222, 1240 (Wyo. 2021) (“the proponent 

is not required to engage in futile acts to procure a witness”); Farmer v. State, 2005 WY 

162, ¶ 14, 124 P.3d 699, 705 (Wyo. 2005) (“The prosecution is not required to engage in

futile actsto procure a witness.”); Weston Cnty. Hosp. Joint Powers Bd. v. Westates Constr. 

Co., 841 P.2d 841, 849 (Wyo. 1992) (“the law does not require [litigant], or any other 

claimant similarly situated, to engage in the futile act of providing further documentation 

under such circumstances. A contrary result would indeed elevate form over substance.”). 

The district court correctly held that a request for a summons on a defendant who cannot 

be found or is not known, under Rule 4(k), is not required by Rule 4(m). 

be mailed via certified mail and marked as Restricted Delivery from the 

District Court Clerk.
21

[¶50] We now turn to whether, and to what extent, the Hopeful entities waived their 

objection to personal jurisdiction. 

III. Did Hopeful partnership, Hopeful Ltd., and Ted Simola waive personal service? 

A. Waiver 

[¶51] Etchepare and Ned Murray Co. maintain that, even if the Hopeful entities were not 

properly served, they waived any defect in service when they did not raise a jurisdictional 

issue in their Motion to Amend. 

[¶52] “[W]here a defendant appears voluntarily, without questioning the court’s personal 

jurisdiction, that appearance is the equivalent of proper service of process.” Knight ex rel. 

Knight v. Est. of McCoy, 2015 WY 9, ¶ 27, 341 P.3d 412, 419 (Wyo. 2015) (quoting 

Operation Save Am. v. City of Jackson, 2012 WY 51, ¶ 54, 275 P.3d 438, 456 (Wyo. 2012)). 

An objection to personal jurisdiction must be made at the earliest opportunity, otherwise it 

is waived. Operation Save Am., ¶ 54, 275 P.3d at 455–56 (quoting JAG, ¶ 13, 56 P.3d at

1019); see also Walton, ¶ 10, 50 P.3d at 697 (personal jurisdiction deemed waived if not 

questioned at the earliest opportunity); Matter of Adoption of MSVW, 965 P.2d 1158, 1162 

(Wyo. 1998). “[T]he general rule [is] that it is necessary to question [the] jurisdiction of 

the court over the person at the earliest opportunity, failing in which the defense will be 

considered waived.” Pease, 522 P.2d at 1002. “When a defendant voluntarily appears 

without questioning the court’s personal jurisdiction over him, his appearance is the 

equivalent of proper service of process.” MSVW, 965 P.2d at 1162 (citing Pease, 522 P.2d 

at 1002). 

[¶53] Mr. Simola, although not properly served, filed an answer to the complaint in his 

individual capacity on June 14, 2021. The answer did not raise any jurisdictional claims. 

Ted Simola waived his personal jurisdictional defenses.10 

[¶54] On the other hand, the Hopeful entities did not file any pleading or motion with the 

district court until January 5, 2022, when the Hopeful entities filed their Motion to Amend. 

Their motion also failed to raise any jurisdictional defense and affirmatively requested 

action by the district court. At that point, the Hopeful entities also waived their personal 

jurisdictional defenses; a waiver which cannot be withdrawn. Quenzer v. Quenzer, 653 

P.2d 295, 305 (Wyo. 1982) (“By invoking the power of the district court to grant 

affirmative relief, the appellant waived his special appearance and made a general 

appearance.” Father “cannot withdraw his earlier appearance and escape the jurisdiction 

of the court.” (citations omitted)). 

10 Ms. Kulas is not a named as an appellant in this appeal. To the extent she will remain an individual party 

in this case, she also waived her jurisdictional defense on that date. 
22

B. Effect of Waiver 

[¶55] Although the Hopeful entities waived their jurisdictional defenses on January 5, 

2022, we must determine the scope and effect of that waiver. As discussed above, the law 

is clear that personal jurisdiction may be waived. It is equally clear, however, that “for a 

court to acquire jurisdiction there must be a proper service of summons or an entry of 

appearance, and a judgment rendered without proper service or entry of appearance is a 

nullity and void.” Pease, 522 P.2d at 1000 (quoting Lincoln Tavern, Inc. v. Snader, 133 

N.E.2d 606, 610 (Ohio 1956)). The question becomes whether the January 2022 waiver 

retroactively granted the district court jurisdiction which would validate the district court’s 

previous orders and judgments affecting the Hopeful entities.11

[¶56] In Pease, we held the entry of a default judgment by the district court was void 

because it was entered before the court had personal jurisdiction over the defendant. We 

said, “Judgments without personal service of process within the state issuing it, or its 

equivalent, or upon a service of process in a manner not authorized by law, are void 

judgments, and may be so treated in any proceeding, direct or collateral.” Pease, 522 P.2d

at 1000 (citation omitted). “[A] party who submits to the court’s jurisdiction does so only 

prospectively and the appearance does not retroactively validate orders entered prior to that 

date.” In re Marriage of Verdung, 535 N.E.2d 818, 820 (Ill. 1989) (citations omitted). 

“‘[W]here a judgment is void when entered, it remains void,’ despite subsequent 

submission by a party to the circuit court’s jurisdiction.” BAC Home Loans Servicing, LP 

v. Mitchell, 2014 IL 116311, ¶ 36, 6 N.E.3d 162, 170 (quoting J.C. Penney Co. v. West, 

449 N.E.2d 188, 190 (Ill. App. Ct. 1983)). A waiver does not “serve to validate 

retroactively the void orders entered prior to defendant’s submission to the court’s 

jurisdiction.” BAC Home Loans, ¶ 44, 6 N.E.3d at 171. 

[¶57] We recognize the default judgment in this case occurred shortly after the Hopeful 

entities filed their motion to amend the answer. We discuss the waiver as applied to the 

default judgment below. However, to highlight the scope of the problems created by the 

insufficient service of process in this case, we note the district court had entered, among 

other orders, an Order to Bifurcate the proceedings, setting aside the Hopeful entities 

internal disagreements about the distribution of the Hopeful entities’ mineral interests. 

Later, it issued a Partial Decree for Quiet Title and Declaratory Judgment determining the 

Hopeful entities’ mineral interest in total (subject to the Bifurcation Order) and determining 

the mineral and leasehold interests of the other litigants. Because the district court did not 

have personal jurisdiction over the Hopeful entities (and possibly others included in these 

orders), these orders are void and subject to collateral attack. Given that service by 

publication, without summons, was utilized for all the defendants, the entire proceeding is 

now at risk. 

11 Ms. Kulas and Mr. Simola waived their jurisdictional defense prior to the substantive orders of the district 

court. 
23

IV. Did the district court err in entering a default judgment and denying the motion 

to set aside default? 

A. Entry of Default 

[¶58] As determined above, the Hopeful entities waived prospective objections to 

personal jurisdiction through their Motion to Amend in January 2022. On that date, the 

Hopeful entities had submitted to the jurisdiction of the district court. In an oral ruling at 

the hearing, the district court held the Hopeful entities’ motion must be denied because 

they had not filed an answer to the complaint, and therefore could not amend a nonexistent 

answer. Just prior to the March 23, 2022 hearing, Etchepare and Ned Murray Co. filed for 

a default under Rule 55(b). The entry of default judgment was entered the same day. It 

stated: 

[The Hopeful entities] are in default for failure to plead or 

otherwise defend as required by law . . . . Said Petition for 

Quiet Title and Declaratory Judgment was filed with the First 

Judicial District Court of Laramie County on March 26, 2021, 

service by publication was completed on April 21, 2021, and 

any and all answers were due from Defendants on May 21, 

2021. 

The problem here, of course, is that the Hopeful entities were not properly served and were 

not required to answer on May 21, 2021. Their waiver of personal jurisdiction did not 

occur until January 2022. 

1. Denial of Motion to Set Aside Default

[¶59] Two days after the court entered the default judgment, the Hopeful entities filed an

objection to the entry of default under Rule 55(c) claiming the service of process by 

publication on these defendants was insufficient to confer subject matter or personal 

jurisdiction on the district court. As alternative relief, they moved for dismissal of the 

action based on lack of jurisdiction. At the hearing on the motion to set aside default, the 

district court dismissed the motion because the Hopeful entities had not shown good cause 

under Rule 55(c) and had not shown improper service by clear and convincing evidence. 

[¶60] The entry of a default judgment is controlled by Rule 55 which states in relevant 

part: 

(a) Entering a Default.—When a party against whom a 

judgment for affirmative relief is sought has failed to plead or 
24

otherwise defend, and that failure is shown by affidavit or 

otherwise, the clerk must enter the party’s default.

(b) Entering a Default Judgment.— 

. . . 

(2) By the Court.—In all other cases, the party must apply 

to the court for a default judgment. . . . If the party against 

whom a default judgment is sought has appeared personally 

or by a representative, that party or its representative must 

be served with written notice of the application at least 7 

days before the hearing. 

. . . 

(c) Setting Aside a Default or a Default Judgment.—The court 

may set aside an entry of default for good cause, and it may set 

aside a final default judgment under Rule 60(b). 

W.R.C.P. 55(a)–(c) (emphasis added). “[G]ood cause for setting aside an entry of default, 

pursuant to [W.R.C.P.] 55(c), is to be found in the justifications for relief from a final

judgment articulated in [W.R.C.P] 60(b).” In re HLL, 2016 WY 43, ¶¶ 27–38, 372 P.3d 

185, 191–93 (Wyo. 2016) (quoting Fluor Daniel (NPOSR), Inc. v. Seward, 956 P.2d 1131, 

1134 (Wyo. 1998)); see also In re ARW, 2015 WY 25, ¶ 18, 343 P.3d 407, 412 (Wyo. 

2015) (“We have previously held that the factors described in Rule 60(b) are relevant to 

our determination of whether the defendant has shown ‘good cause.’” (citation omitted)). 

[¶61] Rule 60(b) provides: 

(b) Grounds for Relief from a Final Judgment, Order, or 

Proceeding.—On motion and just terms, the court may relieve 

a party or its legal representative from a final judgment, order, 

or proceeding for the following reasons: 

(1) mistake, inadvertence, surprise, or excusable neglect; 

(2) newly discovered evidence that, with reasonable 

diligence, could not have been discovered in time to move 

for a new trial under Rule 59(b); 

(3) fraud (whether previously called intrinsic or extrinsic), 

misrepresentation, or misconduct by an opposing party; 
25

(4) the judgment is void; 

(5) the judgment has been satisfied, released, or discharged; 

it is based on an earlier judgment that has been reversed or 

vacated; or applying it prospectively is no longer equitable; 

or 

(6) any other reason that justifies relief. 

W.R.C.P. 60(b). 

We review the district court’s denial of [a] W.R.C.P. 60(b) 

motion for abuse of discretion. An abuse of discretion occurs 

where the district court could not reasonably have concluded 

as it did. [I]t is the movant’s burden to bring his cause within 

the claimed grounds of relief and to substantiate these claims 

with adequate proof. An order denying relief will be reversed 

only if the trial court was clearly wrong. 

Olson v. Schriner, 2020 WY 36, ¶ 15, 459 P.3d 453, 458–59 (Wyo. 2020) (internal citations 

and quotation marks omitted) (quoting SWC Prod., Inc. v. Wold Energy Partners, LLC, 

2019 WY 95, ¶ 5, 448 P.3d 856, 858 (Wyo. 2019)). 

[¶62] “A default judgment is not a trial on the merits.” Loeffel v. Dash, 2020 WY 96, 

¶¶ 24–29, 468 P.3d 676, 682–84 (Wyo. 2020); Rosty v. Skaj, 2012 WY 28, ¶ 29, 272 P.3d 

947, 957 (Wyo. 2012) (“[T]his court has long recognized that ‘default judgments are not 

favored in the law’ and ‘it is preferable that cases be tried on their merits.’” (quoting 

Vanasse v. Ramsay, 847 P.2d 993, 997 (Wyo. 1993))). “Default judgments are punitive 

sanctions against an unresponsive party that serve as a protection to a diligent party.” 

Loeffel, ¶¶ 24–29, 468 P.3d at 682–84 (citing Multiple Resort Ownership Plan, Inc. v. 

Design-Build-Manage, Inc., 2002 WY 67, ¶ 22, 45 P.3d 647, 654–55 (Wyo. 2002)). 

[¶63] When determining a motion set aside a default judgment, “[t]he court first must 

consider whether the filed motion articulates a reason for relief under [W.R.C.P.] 60, and 

that is a question of law to be reviewed for correctness.” Multiple Resort Ownership, ¶ 11, 

45 P.3d at 651–52 (quoting Fluor Daniel, 956 P.2d at 1134). Here, the district court 

concluded that the Hopeful entities had not articulated a reason for relief. As discussed, 

the district court erred in concluding the service by publication was effective as to these 

defendants. 

[¶64] W.R.C.P. 60(b)(6) provides a judgment should be set aside when the defendant 

presents “any other reason that justifies relief.” “[T]he express purpose of this rule is to 
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provide the courts with the means of relieving a party from the oppression of a final 

judgment . . . on a proper showing where such judgments are unfairly or mistakenly 

entered.” MSC v. MCG, 2019 WY 59, ¶ 9, 442 P.3d 662, 665 (Wyo. 2019) (quoting 

Kennedy v. Kennedy, 483 P.2d 516, 518 (Wyo. 1971)). Here, the Hopeful entities correctly 

argued that the service by publication did not achieve personal jurisdiction over them. 

[¶65] At the time the default judgment was entered, the Hopeful entities had voluntarily 

submitted themselves to the jurisdiction of the district court and had not raised the 

jurisdictional defense. The jurisdictional argument was first made in their motion to set 

aside the default judgment. “When an appropriate reason is set forth, the exercise of 

discretion in granting or denying relief depends upon the facts of the case.” Multiple Resort 

Ownership, ¶¶ 10–11, 45 P.3d at 651–52 (quoting Fluor Daniel, 956 P.2d at 1134). 

[¶66] Here, in their first appearance—their motion to amend the answer—the Hopeful 

entities attempted to answer or otherwise defend the case. There was no basis for a finding 

that they had not diligently attempted to do so once personal jurisdiction was established. 

We conclude the district court erroneously found that the Hopeful entities answer was due 

on May 21, 2021, and it abused its discretion in failing to grant the Hopeful entities request 

to set aside the default judgment. There was no reason for these defendants to be subject 

to “punitive sanctions against an unresponsive party” or that default judgment would “serve 

as a protection to a diligent party.” The plaintiffs chose an inappropriate and invalid 

shortcut to initiate service on all the defendants and should not be rewarded for those 

efforts. We find the district court abused its discretion and reverse the district court’s denial 

of the motion to set aside the default judgment. 

CONCLUSION 

[¶67] The district court’s subject matter jurisdiction was established when Etchepare filed 

its quiet title and declaratory judgment action. However, service by publication on all 

defendants did not establish personal jurisdiction over the Hopeful entities. The district 

court erred in entering a default judgment against these defendants and abused its discretion 

when it failed to set aside that judgment. We affirm the district court’s determination that 

a summons is not required as to those defendants who are properly subject to service by 

publication. We reverse on the ability to serve defendants with known addresses by 

publication, and the district court’s denial of the motion to set aside the default judgment. 

This case is remanded for further proceedings in accordance with this opinion.