IN THE SUPREME COURT, STATE OF WYOMING

2014 WY 169

 OCTOBER TERM, A.D. 2014

December 30, 2014

FERN CLARK and TRAVIS CLARK,

Appellants

(Petitioners),

v.

THE RYAN PARK PROPERTY AND 

HOMEOWNERS ASSOCIATION,

Appellee

(Respondent).

S-14-0170

Appeal from the District Court of Carbon County

The Honorable Wade E. Waldrip, Judge

Representing Appellants:

Holli Austin-Belaski, Corthell and King, P.C., Laramie, Wyoming.

Representing Appellee:

Douglas W. Bailey, Bailey, Stock and Harmon, P.C., Cheyenne, Wyoming.

Before BURKE, C.J., and HILL, KITE, DAVIS, and FOX, 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] Appellants, Fern and Travis Clark, brought an action against the Ryan Park 

Property and Homeowners Association seeking an order, pursuant to the Wyoming 

Nonprofit Corporation Act, requiring the Association to allow the Clarks to inspect and 

copy certain corporate records. The district court entered the order, but denied the 

Clarks’ request to recover costs and attorney’s fees. On appeal, the Clarks contend that 

the denial of attorney’s fees and costs is contrary to the provisions of the Act. We will 

affirm.

ISSUE

[¶2] The Clarks present this issue, which we reword slightly for the sake of

clarification:

Whether the district court erred by failing to adhere to the 

mandatory language of Wyo. Stat. Ann. § 17-19-1604 

(LexisNexis 2011), when it ordered the Association to allow 

the Clarks to copy and inspect documents but denied the 

Clarks’ request for attorney’s fees and costs.

FACTS

[¶3] The Clarks, property owners in Ryan Park, Wyoming, and members of the 

Association, commenced an action in district court claiming that the Association had 

unlawfully denied their repeated requests to inspect and copy certain Association records. 

The Clarks claimed that the Association was required by statute to keep and maintain 

these documents, that the Clarks had a statutory right to inspect and copy them, and that 

the Clarks were entitled under the statutes to recover the costs and attorney’s fees they 

had incurred in bringing the action. The Clarks moved for an order allowing them to 

inspect and copy the documents, and also sought an award of costs and attorney’s fees.

[¶4] At the beginning of the hearing on the Clarks’ motion, counsel for the Association 

told the district court that the Association had “no problem” with the court entering an 

order requiring it to produce the records because the Association had already complied 

with the Clarks’ request for documents. Counsel for the Clarks indicated that the Clarks 

still wanted the district court to enter the order because they asserted they had not

received all of the documents they had requested. They also maintained that they were 

entitled to recover costs and attorney’s fees. The district court proceeded with the 

hearing.

[¶5] Soon after the hearing, the district court entered its order granting the Clarks’

motion. The district court noted that the Association had stipulated to the entry of the 
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order, and stated that the court concurred with that stipulation. Accordingly, it ordered

that, “[a]s the parties have agreed, and as has already been done, the [Association] shall 

make available for copying and inspection those records requested by the Clarks that are 

in existence and in its possession or in the possession of its agents and which can be 

reasonably obtained.” The district court declined to order the Association to pay the 

Clarks’ attorney’s fees or costs. The Clarks appealed that part of the district court’s 

decision.

STANDARD OF REVIEW

[¶6] “Following a bench trial, we review the trial court’s findings of fact for clear error, 

and its conclusions of law de novo.” Fox v. Wheeler Elec., Inc., 2007 WY 171, ¶ 9, 169 

P.3d 875, 878 (Wyo. 2007) (citing Pinther v. Ditzel, 2007 WY 116, ¶ 3, 163 P.3d 816, 

816 (Wyo. 2007)).

[W]e assume that the evidence of the prevailing party below 

is true and give that party every reasonable inference that can 

fairly and reasonably be drawn from it. We do not substitute

ourselves for the trial court as a finder of facts; instead, we 

defer to those findings unless they are unsupported by the 

record or erroneous as a matter of law.

Belden v. Thorkildsen, 2007 WY 68, ¶ 11, 156 P.3d 320, 323 (Wyo. 2007) (quoting 

Harber v. Jensen, 2004 WY 104, ¶ 7, 97 P.3d 57, 60 (Wyo. 2004)). “A finding is clearly 

erroneous when, although there is evidence to support it, the reviewing court on the entire 

evidence is left with the definite and firm conviction that a mistake has been committed.” 

Id.

DISCUSSION

[¶7] Wyo. Stat. Ann. § 17-19-1601, part of the Wyoming Nonprofit Corporation Act, 

requires nonprofit corporations to retain specified documents, including meeting minutes, 

accounting information, and membership lists. Wyo. Stat. Ann. §§ 17-19-1602 and 

-1603 provide, with certain conditions, that a member of a nonprofit corporation is 

entitled to inspect and copy those records. Wyo. Stat. Ann. § 17-19-1604, the statute 

directly at issue in this case, provides a judicial remedy when a nonprofit corporation 

does not allow a member to inspect and copy such records:

§ 17-19-1604. Court-ordered inspection.

(a) If a corporation does not allow a member who complies 

with W.S. 17-19-1602(a) to inspect and copy any records 

required by that subsection to be available for inspection, the 
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district court in the county where the corporations’ [sic]

principal office, or, if none in this state, its registered office, 

is located may summarily order inspection and copying of the 

records demanded at the corporation’s expense upon 

application of the member.

(b) If a corporation does not within a reasonable time allow a 

member to inspect and copy any other record, the member 

who complies with W.S. 17-19-1602(b) and (c) may apply to 

the district court in the county where the corporation’s 

principal office, or, if none in this state, its registered office, 

is located for an order to permit inspection and copying of the 

records demanded. The court shall dispose of an application 

under this subsection on an expedited basis.

(c) If the court orders inspection and copying of the records 

demanded, it shall also order the corporation to pay the 

member’s costs, including reasonable counsel fees, incurred 

to obtain the order unless the corporation proves that it 

refused inspection in good faith because it had a 

reasonable basis for doubt about the right of the member 

to inspect the records demanded.

(d) If the court orders inspection and copying of the records 

demanded, it may impose reasonable restrictions on the use or 

distribution of the records by the demanding member.

(Emphasis added.)

[¶8] In its order, the district court quoted subsection (c) of this statute, with the same 

added emphasis as in the quotation above. It restated that this statute “requires the award 

of costs and fees . . . unless the corporation proves that it refused inspection in good faith 

because it had a reasonable basis for doubt about the right of the member to inspect the 

records demanded.” It then set forth these findings and conclusions:

7. At the April 23, 2014 hearing on this matter, this Court 

heard evidence regarding the Clarks’ requests to obtain 

certain documents from the [Association], and the 

[Association’s] attempts to satisfy those requests. At the 

conclusion of the presentation of evidence, it was apparent to 

this Court that: (a) the [Association] has made reasonable 

efforts to meet the demands imposed upon it by the Clarks 

and (b) the [Association] had a reasonable basis for its doubt 
4

of the Clark[s’] right to inspect certain documents, namely its 

concerns about the privacy interests of other individual 

members.

8. In this Court’s experience, the [Association] has kept 

as good a set of records as most nonprofit, volunteer 

organizations and has done its best to respond to the Clarks’ 

request, considering the fact that some of those records were 

in the possession of other individuals or entities and 

considering the [Association’s] concerns about protecting its 

members[’] privacy interests. In any event, this Court cannot 

conclude that the [Association] has acted in bad faith or that 

attorney’s fees and costs are warranted.

[¶9] The Clarks first contend that the district court’s factual finding that the 

Association had made reasonable efforts to satisfy their requests is clearly erroneous. 

They claim that the Association “took nearly eight months to disclose, on a piecemeal 

basis, only partial responses” to their requests. The evidence, they contend, shows that

they did not receive certain bank records until after the lawsuit had commenced. 

[¶10] At the hearing, the president of the Association, Donald Brinkman, testified that 

the Association did not have the requested bank statements, so he asked the Association’s 

bank to provide copies. The statements produced by the bank did not include copies of 

cancelled checks or deposit slips, which the Clarks had requested. Mr. Brinkman asked 

the bank, and was told that it could provide copies of cancelled checks and deposit slips

at an additional cost. After confirming that the Clarks were willing to pay the additional 

cost, he asked the bank for the documents. According to Mr. Brinkman, the bank had to 

retrieve some of the cancelled checks and deposit slips from records stored in California, 

and it “took a while” to get them. After the bank provided him with the documents, he 

gave them to the Clarks.

[¶11] In applying our standard of review, we assume that the Association’s evidence is 

true, and give the Association every reasonable inference that can reasonably be drawn 

from it. Belden, ¶ 11, 156 P.3d at 323. Mr. Brinkman provided a reasonable explanation 

for the delay, and his testimony supports the district court’s finding that the Association 

made reasonable efforts to satisfy the Clarks’ requests. We are not convinced that a 

mistake has been committed, and accordingly, we conclude that the district court’s 

finding is not clearly erroneous.

[¶12] The Clarks’ second argument is that the district court applied an incorrect legal 

standard with regard to the Association’s reluctance to provide the requested documents. 

The district court said it could not “conclude that the [Association] has acted in bad 

faith.” The Clarks assert that the statute requires “good faith,” and a lack of bad faith is 
5

not sufficient. They contend that the Association did not meet the “good faith” standard, 

but instead refused to provide certain documents based on “an unsupported claim of 

privacy concerns.”

[¶13] The documents at issue here were called “lien letters.” They were sent to 

Association members requesting payment of past-due road assessment fees. At the 

hearing, Mr. Brinkman was asked why the Association was “hesitant” to turn these letters 

over to the Clarks. He responded:

Everything that you read on the Privacy Act, everything I 

learned with the American Red Cross is you cannot divulge 

anything of a personal nature about anybody, that they are 

expected to have privacy on that issue, and, you know, you’re 

liable if you do that. So, in turn, it will make the board liable 

if it discloses information that is not public record.

He further testified that he believed the letters were confidential, and that he was worried 

that they might be used to embarrass or harass the recipients. After the district court had 

entered a stipulated protective order covering the lien letters, however, the documents 

were given to the Clarks. Based on this evidence, the district court ruled that the 

Association “had a reasonable basis for its doubt of the Clark[s’] right to inspect certain 

documents, namely its concerns about the privacy interests of other individual members.” 

It stated that it could not conclude that the Association had “acted in bad faith or that 

attorney’s fees and costs are warranted.”

[¶14] The Clarks are correct that the statute requires “good faith,” while the court 

concluded that the Association had not acted in “bad faith.” Strictly speaking, acting in 

good faith may not be precisely the same as not acting in bad faith. However, the order 

as a whole demonstrates that the district court was aware of, and applied, the correct 

standard.

[¶15] In a case in which the buyers of a house alleged the sellers had committed fraud, 

we noted that, in order to recover, the buyers had to prove the sellers “had to know of the 

defects they failed to disclose or misrepresented.” The district court found instead that 

the sellers “were aware or reasonably should have been aware” of the defects. Alexander 

v. Meduna, 2002 WY 83, ¶ 34, 47 P.3d 206, 217 (Wyo. 2002). We said that, 

 

At first glance, the language appears to apply an incorrect 

standard. . . . In light of the record as a whole, we believe the 

language “were aware or reasonably should have been aware” 

was responsive to the sellers’ implausible explanations. We 

conclude the trial court was endeavoring in a diplomatic 

manner to address the untruthful nature of the sellers’
6

testimony. The trial court unquestionably determined there 

was clear and convincing evidence of fraud because the 

sellers knew of the defects and purposely made 

misrepresentations regarding the property condition to induce 

the buyers, to their significant detriment, to make a purchase 

offer and enter into a purchase contract.

Id.

[¶16] Similarly, in the case before us now, the district court’s order as a whole 

demonstrates that it applied the correct standard. The order quoted Wyo. Stat. Ann. § 17-

19-1604(c), with emphasis on the language concerning good faith. It then restated the 

substance of the statute, again indicating that it required the award of attorney’s fees and 

costs unless the Association proved it acted in good faith. Using language taken directly 

from the statutory standard, the court found that the Association “had a reasonable basis 

for its doubt of the Clark[s’] right to inspect certain documents, namely its concerns

about the privacy interests of other individual members.” Clearly, the district court was 

aware of the correct legal standard. 

[¶17] It may have been more precise for the court to echo the statutory language. In 

context, however, its determination that the Association had not acted in bad faith is 

equivalent to a conclusion that the Association had acted in good faith. Reading the order 

as a whole leaves no doubt that the district court applied the correct legal standard. 

[¶18] The district court’s decision is affirmed.