IN THE SUPREME COURT, STATE OF WYOMING

2015 WY 136

 OCTOBER TERM, A.D. 2015

October 15, 2015

DEL BARTEL and DALE THURGOOD,

Appellants

(Plaintiffs),

v.

DAVID C. WEST, as BANKRUPTCY TRUSTEE 

FOR DAVID N. FISHER; and CONSTANCE 

“CONNIE” MILLET,

Appellees

(Defendants).

S-15-0036

Appeal from the District Court of Lincoln County

The Honorable Dennis L. Sanderson, Judge

Representing Appellants:

Pro se.

Representing Appellee, David C. West:

Sheldon A. Smith, Sheldon A. Smith & Associates, Coalville, Utah.

Representing Appellee, Constance Millet:

No appearance.

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] Appellants, Del Bartel and Dale Thurgood, appeal the district court’s denial of 

their motion to modify its previous order dismissing the case and its denial of their 

renewed motion for summary judgment. We will affirm. Further, finding no reasonable 

cause for this appeal, we will award attorneys’ fees to Appellee.

ISSUE

[¶2] Although Appellants raise eight or more issues in their brief, we conclude that 

there is a single dispositive issue: Did the district court abuse its discretion in denying 

Appellants’ motions for relief pursuant to W.R.C.P. 60(b)?

FACTS

[¶3] On December 17, 2009, Appellants and the company they own, High Desert, LLC, 

filed suit against David Fisher, Constance Millet, and Rocky Mountain Title Insurance 

Agency of Lincoln County, alleging breach of contract, intentional and negligent 

misrepresentation, fraud, and other claims arising from an unfulfilled real estate purchase 

agreement. Appellants alleged that High Desert was the seller of the real estate subject to 

the agreement, that Mr. Fisher and Ms. Millet were the buyers, and that the buyers had 

placed $25,000 in escrow with Rocky Mountain Title as earnest money.

[¶4] On January 29, 2010, Mr. Fisher filed an answer and counterclaim against

Appellants and their company. Appellants suggest that Ms. Millet did not file an answer 

or otherwise appear, and a default was entered against her. There is nothing in the record 

on appeal to verify this suggestion. It also appears that Rocky Mountain Title was 

dismissed from the case after the money it held in escrow was turned over to the court. 

Again, the record does not verify this information.

[¶5] The record provided to this Court also does not indicate what occurred in this 

litigation, if anything, in the three years after Mr. Fisher filed his answer. However, on 

June 5, 2013, Mr. Fisher filed for Chapter 7 Bankruptcy. He filed a notice informing the 

district court of his bankruptcy status, and mailed copies of this notice to Appellants. On 

November 7, 2013, Appellants filed an adversary proceeding in the bankruptcy case, 

requesting a determination that their claims against Mr. Fisher were not dischargeable in 

bankruptcy.

[¶6] The district court held a hearing on this matter on August 26, 2014. The scanty 

record designated by Appellants does not contain any of the pleadings giving rise to this 
2

hearing, but the district court’s written order suggests that the hearing involved 

Appellants’ Motion to Strike pursuant to W.R.C.P. 12(f)1and Mr. Fisher’s request to 

appear pro se. The more significant aspect of the district court’s order is the judge’s 

handwritten note, which states, “This action is dismissed because there is a stay in 

Bankruptcy and the matter is being resolved there.” Appellants did not appeal the district 

court’s decision to dismiss their claims.

[¶7] The bankruptcy court held a hearing on September 4, 2014, and ruled that 

Appellants’ claims against Mr. Fisher were dischargeable in bankruptcy. In its oral 

ruling, the bankruptcy court provided some guidance to Appellants:

[The applicable rule] provides, quote, “Individuals 

may represent themselves in court. No corporation, 

association, partnership or other artificial entity may appear 

pro se, but must be represented by an attorney who is 

admitted to practice in this court,” end quote. . . .

There is the Rowland v. California case from the 

Supreme Court that has held that a corporation may appear in 

federal courts only through licensed counsel. . . .

Accordingly, High Desert may not, after today, 

proceed without obtaining representation. Moreover, Messrs. 

Bartel and Thurgood do not have standing to assert High 

Desert’s rights. . . .

It appears to me that the parties are concerned about really 

going forward in Wyoming. . . . But if [they] want to go 

forward in that Wyoming case, the proper way to do it is 

either get the trustee to [defend] it or come in here and get a 

lift of stay so you can go forward. . . . A lift of stay would 

allow the parties to go forward in Wyoming as if the 

bankruptcy doesn’t exist. . . . So I’m not telling you what to 

do, Messrs. Bartel or Thurgood, but I’m suggesting an avenue 

you may want to evaluate and consider.

[¶8] Appellants did not seek a lift of the bankruptcy stay, but they did continue their 

efforts to litigate the case in the district court. On October 9, 2014, acting pro se, they

 

1 Although the district court granted the Motion to Strike, there is no indication of what document or 

documents were stricken.
3

filed a “Motion and Memorandum to Modify Part of the Court’s Order on Hearing and 

Dismissing the Action, Based upon the Federal Bankruptcy Court’s Findings of Fact and 

Conclusions of Law at Hearing on September 4, 2014.” They also filed a “Renewed 

Motion and Memorandum for Summary Judgment.” The district court denied both 

motions on December 18, 2014, and observed in the written order that “[t]his matter was 

dismissed by this Court’s Order . . . filed herein on September 5, 2014. It was a final 

Order.”

[¶9] Appellants filed this appeal, naming Mr. Fisher and Ms. Millet as Appellees. 

Ms. Millet has made no appearance. David C. West, the bankruptcy trustee for 

Mr. Fisher, filed a motion to substitute the trustee in place of Mr. Fisher. Citing 11 

U.S.C. § 541(a)(1), Mr. West pointed out that when Mr. Fisher filed for bankruptcy, all of 

Mr. Fisher’s assets became property of the bankruptcy estate. Thus, Mr. West asserted

the bankruptcy trustee, and not Mr. Fisher, is the real party in interest to this appeal. We

granted the motion and substituted Mr. West, the Chapter 7 trustee of Mr. Fisher’s 

bankruptcy estate, as Appellee in this appeal.

DISCUSSION

[¶10] At the outset, we take note of what is not involved in this appeal. The district 

court dismissed Appellants’ claims on September 5, 2014. Appellants did not file a 

notice of appeal within thirty days of the entry of the dismissal order, as required by 

W.R.A.P. 2.01(a). Accordingly, the district court’s order dismissing Appellants’ claims 

is a final order, and is not at issue in this appeal.

[¶11] Appellants filed their “Motion and Memorandum to Modify Part of the Court’s 

Order on Hearing and Dismissing the Action, Based upon the Federal Bankruptcy 

Court’s Findings of Fact and Conclusions of Law at Hearing on September 4, 2014” as a 

motion for relief from the dismissal order pursuant to W.R.C.P. 60(b). Appellants’ 

“Renewed Motion and Memorandum for Summary Judgment” is more difficult to 

characterize. Although the word “Renewed” in the title suggests that there was a 

previous motion for summary judgment, no such pleading appears in the record provided 

to this Court. In any event, it seems appropriate to treat Appellants’ renewed motion as 

another motion for relief pursuant to W.R.C.P. 60(b).

[¶12] Accordingly, we review the district court’s decisions on the two motions for abuse 

of discretion. “Trial courts are vested with discretion to grant or deny a motion for relief 

from an order or judgment . . . and our review is limited to determining whether that 

discretion was abused.” Loran v. Loran, 2015 WY 24, ¶ 14, 343 P.3d 400, 403 (Wyo. 

2015). “An abuse of discretion occurs where the district court could not reasonably have 

concluded as it did.” Drury v. State, 2008 WY 130, ¶ 8, 194 P.3d 1017, 1019 (Wyo. 

2008) (citing Thomas v. State, 2006 WY 34, ¶ 10, 131 P.3d 348, 352 (Wyo. 2006)). 
4

[¶13] The argument made in Appellants’ motion to modify is less than clear, but seems 

to be based on Appellants’ assertion that the bankruptcy court ruled that Mr. Fisher was 

not a party to the disputed real estate purchase contract. On that basis, Appellants 

claimed that they were entitled to the $25,000 earnest deposit. The renewed motion for 

summary judgment is based on similar grounds.

[¶14] The district court did not act unreasonably in denying these motions. Pursuant to 

W.R.C.P. 60(b)(1), Appellants may be relieved of the order dismissing their claims by 

showing “mistake, inadvertence, surprise, or excusable neglect.” They made no such 

showing. They also failed to demonstrate newly discovered evidence as required under 

W.R.C.P. 60(b)(2), fraud as required under W.R.C.P. 60(b)(3), a void judgment as 

required under W.R.C.P. 60(b)(4), a satisfied judgment as required under W.R.C.P. 

60(b)(5), or any other reason justifying relief as required under W.R.C.P. 60(b)(6). 

Because Appellants provided no proper basis for their motions, the district court did not 

abuse its discretion in denying them. The district court’s decision must be affirmed.

[¶15] The bankruptcy trustee asserts that there was no reasonable cause for this appeal. 

He asks us, pursuant to W.R.A.P. 10.05(b), to award a reasonable amount for attorneys’ 

fees and damages. For three main reasons, we agree that there was no reasonable cause 

for this appeal. 

[¶16] First, Appellants’ motions were aimed at the wrong party. Their claims against 

Mr. Fisher are no longer valid claims. To the extent their claims reflect a debt formerly 

owed by Mr. Fisher, he was discharged from bankruptcy on September 26, 2013, and 

pursuant to 11 U.S.C. § 524, is no longer liable for this debt. To the extent Appellants’ 

claims reflect an asset formerly owned by Mr. Fisher, when he filed for bankruptcy, 

pursuant to 11 U.S.C. § 541(a)(1), all of his assets became property of the bankruptcy 

estate. Thus, as the bankruptcy judge informed them, Appellants could proceed only 

against the bankruptcy trustee.

[¶17] Second, we note that the district court dismissed Appellants’ claims with the 

expressed understanding that they would be resolved in bankruptcy court. The record 

indicates that Appellants attempted to have their claims declared nondischargeable. 

Beyond that, however, the record reflects that Appellants made no effort to resolve these 

claims in bankruptcy court. They also did not seek a lift of stay that would have allowed 

them to pursue the litigation in the district court. Ignoring the bankruptcy court’s sound 

guidance, Appellants have persisted in their efforts to pursue their claims against the 

wrong party in the wrong court.

[¶18] Third, Appellants may lack standing to bring this appeal. Appellants’ complaint in 

this matter indicates that the real estate purchase agreement at issue here was with their 

company, High Desert, LLC, and that High Desert owned the real estate subject to the 

agreement. There is nothing in the record to indicate that Appellants, in their personal 
5

capacities, were party to the real estate purchase agreement or owned the underlying real 

property. The bankruptcy court told Appellants that High Desert could appear in court 

only through counsel, and that Appellants in their personal capacity lacked standing to 

pursue High Desert’s claims. Nevertheless, High Desert is not a party to this appeal, and 

it appears that Appellants are making a pro se effort to pursue High Desert’s claims in 

their personal capacities. The record before us does not demonstrate that Appellants have 

standing to pursue this appeal.

[¶19] In conclusion, we affirm the district court’s decision to deny Appellants’ postdismissal motions. Further, we certify that there was no reasonable cause for this appeal 

and, pursuant to W.R.A.P. 10.05(b), award a reasonable amount for attorneys’ fees. 

Mr. West will submit a statement of attorneys’ fees and costs to this Court for our review 

so that an appropriate award can be ordered.