Trefren Construction Co., a Wyoming Corporation v. V&R Construction, Llc, an Ohio Limited Liability Company, and Cocca Development, Ltd., an Ohio Limited Partnership

IN THE SUPREME COURT, STATE OF WYOMING

2016 WY 121

OCTOBER TERM, A.D. 2016

December 20, 2016

TREFREN CONSTRUCTION CO., a
Wyoming Corporation,

Appellant
(Plaintiff),

v.
S-16-0078
V&R CONSTRUCTION, LLC, an Ohio
Limited Liability Company, and COCCA
DEVELOPMENT, LTD., an Ohio Limited
Partnership,

Appellees
(Defendants).

Appeal from the District Court of Lincoln County
The Honorable Joseph B. Bluemel, Judge

Representing Appellant:
Andrew A. Irvine of Andrew A. Irvine, P.C.; and Robert L. Stepans of Meyer,
Shaffer & Stepans, PLLP, Wilson, WY. Argument by Mr. Irvine.

Representing Appellees:
John D. Bowers of Bowers Law Firm, Afton, WY.

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.
HILL, Justice.

[¶1] Trefren Construction Co. (Trefren Construction) appeals the district court’s denial
of its motion to substitute the real party in interest and the district court’s grant of
summary judgment to Defendants, V&R Construction, LLC, and Cocca Development,
Ltd. We find the district court erred in dismissing the complaint for lack of subject
matter jurisdiction, abused its discretion in denying the motion to substitute, and erred in
prematurely ruling on the merits of the parties’ contract claims. We therefore reverse.

ISSUES

[¶2] Although Trefren Construction presents a number of issues on appeal, we find the
dispositive issues to be:

1. Did the district court err in dismissing the complaint for lack of subject matter
jurisdiction?

2. Did the district court abuse its discretion under Rule 17(a) of the Wyoming Rules
of Civil Procedure when it denied Trefren Construction's motion to substitute the Estate
of Timothy N. Trefren as the real party in interest?

3. Did the district court err in ruling that the parties’ contracts were voidable?

FACTS

[¶3] Prior to his death on April 23, 2015, Timothy N. Trefren owned Trefren
Construction and operated it as a sole proprietorship. Trefren Construction was based in
Thayne, Wyoming, and was managed by Timothy N. Trefren and his son, Timothy R.
Trefren. Defendant V&R Construction, LLC (V&R) is an Ohio limited liability
company, and Defendant Cocca Development, Ltd. (Cocca) is an Ohio limited
partnership. Cocca is a member of V&R.

[¶4] Cocca owned real property in Afton, Wyoming, on which it desired to construct a
Shopko retail establishment. Cocca entered into a contract with V&R, by which V&R
was to act as general contractor in the construction of the Shopko building. In turn,
V&R, on May 31, 2013, entered into a subcontract with Trefren Construction, by which it
agreed to pay Trefren Construction $458,850.00 to complete site preparation and
excavation for the project. On June 30, 2013, V&R entered into another subcontract with
Trefren Construction, by which it agreed to pay Trefren Construction $145,000.00 for
erection of an approximately 36,000 square foot pre-engineered metal building on the
site.

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[¶5] In October and November 2013, Trefren Construction billed V&R for amounts
still owing on both the site preparation/excavation contract and the building erection
contract. On May 15, 2014, it again submitted a billing to V&R for these amounts, and
on July 30, 2014, its counsel sent a demand letter to both Cocca and V&R for the
amounts owing. The amounts owing on the contracts were not paid, and on September
19, 2014, Trefren Construction filed a complaint against V&R and Cocca in the Third
Judicial District Court in Lincoln County. The complaint asserted both contract and non-
contract claims and requested damages in the amount of $115,560.53, plus prejudgment
interest. V&R and Cocca (collectively Defendants) filed an answer and counterclaims,
and the litigation thereafter proceeded through discovery and an unsuccessful mediation,
with a trial date scheduled for January 19, 2016.

[¶6] On November 20, 2015, Defendants filed a motion to dismiss. Defendants’
motion directed the district court to Paragraph One of Trefren Construction’s complaint,
which alleged, “Plaintiff is a Wyoming Corporation with its principal place of business
located in the Town of Thayne, County of Lincoln, State of Wyoming.” Defendants’
motion then asserted that during a telephone conversation with a non-party, defense
counsel was told Trefren Construction is not a Wyoming corporation, and upon
investigation, Defendants confirmed that all corporations associated with the name
Trefren Construction were inactive or had been dissolved. Specifically, Defendants
asserted Trefren Construction, Inc. became inactive in 2003, Trefren Construction
Company, Inc. dissolved in 1986 and again in 1997.

[¶7] Based on this information, Defendants further asserted (citations to exhibits
omitted):

4. Additionally, the alleged two written contracts
attached to the Plaintiff’s complaint contain signature pages
in which the first dated May 31, 2013 is signed as “Trefren
Construction Co. by Tim N. Trefren its owner”, and the
second contract dated June 30, 2013 is signed as “Trefren
Construction Co. by Tim Trefren its manager”.
5. Wyoming Statute § 17-16-1405 states that a
dissolved corporation technically continues in a corporate
existence, however “may not carry on any business except
that appropriate to wind up and liquidate its business and
affairs . . .” Id.
6. As such, the Plaintiff’s allegations that it
entered into any type of agreement or contract in 2013, cannot
be supported [by] facts because there was no such entity.
7. Additionally, the “alleged plaintiff” is not a
recognized entity under Wyoming law and has no statutory
authority to sue in the State of Wyoming.

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 8. Because the alleged plaintiff is not a valid
entity, nor was it a valid entity at the time of the alleged
written contract, this matter cannot go forward because there
is no party of interest on the plaintiff’s side. As such, the
Defendants respectfully request that the matter be dismissed.
****
12. If the Court does not dismiss this matter, in the
alternative, the Defendants respectfully request that the Court
vacate the current scheduling order and trial date immediately
until additional briefing can be done on this matter.

[¶8] Defendants attached to their motion to dismiss the relevant page of Trefren
Construction’s complaint and the signature pages of the parties’ contracts, which
contracts had been attached to the complaint. Defendants also attached several
documents downloaded from the website for the Wyoming Secretary of State’s Office
and an affidavit from defense counsel’s legal assistant concerning the downloaded
documents and her contact with the Secretary of State’s Office.

[¶9] On November 23, 2015, three days following the filing of Defendants’ motion to
dismiss, Trefren Construction filed a Motion for Substitution of Party pursuant to
W.R.C.P. 25(a), which rule governs substitutions upon the death of a party. The motion
stated, in part:

1. At the time this case was filed, the original
named plaintiff was Trefren Construction Co., which,
according to The Estate of Timothy Nelson Trefren was held
as a sole proprietorship by Timothy Nelson Trefren.
2. Timothy Nelson Trefren died on April 23, 2015.
3. As a result of the death of Timothy Nelson
Trefren, the original named plaintiff Trefren Construction Co.
was transferred to The Estate of Timothy Nelson Trefren.
4. The Estate of Timothy Nelson Trefren now
wishes to proceed with the above captioned case as successor
to Trefren Construction Co.
****
WHEREFORE, Movant prays that The Estate of
Timothy Nelson Trefren be substituted in place and stead of
the original plaintiff Trefren Construction Co. as the named
plaintiff herein.

[¶10] Defendants opposed the motion to substitute the Estate of Timothy Nelson Trefren
(the Estate) as plaintiff, arguing Rule 25(a) did not apply because no party to the action
had died. They also asserted they would be prejudiced by the substitution because had

3
they known Trefren Construction was not a corporation, they would have asserted
additional claims for breach of fiduciary duty, conflict of interest, and breach of contract.

[¶11] On December 2, 2015, the district court entered an order vacating the January 19,
2016 trial date and setting deadlines for briefing on Defendants’ motion to dismiss. In
accordance with that schedule, Trefren Construction filed a response to Defendants’
motion to dismiss. On that same date, Trefren Construction also filed a motion for leave
to amend its complaint to substitute the Estate as plaintiff.

[¶12] In arguing against Defendants’ motion to dismiss, Trefren Construction took the
position that W.R.C.P. 17(a) was, under the circumstances, not a ground for dismissal but
was instead a basis for substituting the Estate. Trefren Construction argued that whether
viewed singularly or in combination, Rules 17(a), 21, 25 and 15(a) “readily allow the
substitution of The Estate of Timothy N. Trefren as the real party in interest in this case.”
In support of this argument, Trefren Construction attached an affidavit by Timothy R.
Trefren, the son of decedent, Timothy N. Trefren. That affidavit stated, in part:

1. My father, Timothy N. Trefren, started Trefren
Construction Co. and has always been the owner of the
business.
2. My father, Timothy N. Trefren was also a
manager of the business and handled all of the “office” work,
including the licenses, permits and taxes for the business.
3. I was also a manager of Trefren Construction
Co. and handled aspects of the “field” work for the business.
4. At the time the above-captioned case was filed,
I believed Trefren Construction Co. was operated by my
father as a Wyoming corporation and indicated such to
counsel for Trefren Construction Co.
5. I was aware that Trefren Construction Co. had
been operated as a Wyoming corporation in the past and
believed that it was still operated as a Wyoming corporation
at the time this case was filed.
6. I was unaware of any change to the status of
Trefren Construction Co. as a Wyoming corporation at the
time this case was filed.
7. After a long battle with cancer and illness, my
father, Timothy N. Trefren died on April 23, 2015.
8. Following his death, Defendants in this case as
well as counsel for Defendants, were provided notice of and
acknowledged my father's death.
9. Following my father’s death and after my
father's estate was submitted to probate in In the Matter of the

4
 Estate of Timothy Nelson Trefren, PR-2015-31-DC (2015),
counsel for my father’s Estate explained to me that my father
had operated Trefren Construction Co. as a sole
proprietorship, not a Wyoming corporation.
10. That is the first time I became aware that my
father had converted Trefren Construction Co. from a
Wyoming corporation to a sole proprietorship.

[¶13] On December 28, 2015, Defendants filed their opposition to Trefren
Construction’s motion for leave to amend its complaint. Defendants argued they would
be prejudiced by the amendment in that had they known Trefren Construction was a sole
proprietorship, they would have approached the litigation differently and would have
asserted additional claims against the entity. On the same date, Defendants also filed a
reply in support of their motion to dismiss, again asserting they would be prejudiced by a
substitution of the parties.

[¶14] On February 9, 2016, the district court entered an Order Denying Motion for
Substitution of Party, Denying Motion for Leave to Amend Complaint, and Granting
Defendants’ Motion for Summary Judgment. The court found Rule 25(a) inapplicable
because no party to the action had died and on that basis denied Trefren Construction’s
Rule 25(a) motion. The court denied Trefren Construction’s motion to amend based on
its findings that the motion was not timely and amendment of the complaint would not
serve the interests of justice. The court did not address Trefren Construction’s argument
that substitution of the Estate as plaintiff was proper under Rule 17(a).

[¶15] In addressing Defendants’ motion to dismiss, the district court observed that
Defendants had not cited to a specific rule upon which they based their motion, but the
Court viewed the motion as a Rule 17(a) challenge to the named plaintiff as the real party
in interest. The court also noted that it had converted Defendants' motion to dismiss to a
summary judgment motion because the court had considered materials outside the
pleadings that had been submitted by the parties.

[¶16] With respect to the real party in interest question, the district court found that
because there was no existing Wyoming corporation by the name of Trefren Construction
Co., the named plaintiff was a non-existent entity and could not be the real party in
interest. The court then concluded that because the named plaintiff was not the real party
in interest, the complaint had to be dismissed for lack of subject matter jurisdiction.

[¶17] The district court thereafter deviated from the real party in interest question and
turned to an analysis of the enforceability of the parties’ contracts, specifically whether
the parties had a meeting of the minds when they entered into their contracts and whether
Trefren Construction had perpetrated a material misrepresentation upon Defendants. The
court found that: 1) no contract could be formed because Trefren Construction did not

5
exist as a corporate entity and the parties therefore could not have had a meeting of the
minds; and 2) Trefren Construction Co. perpetrated a material misrepresentation upon
Defendants, which made the contracts voidable. The court then summarized its ruling on
Defendants’ motion to dismiss/summary judgment motion with the following:

No real party in interest ratified this action, sought to
be joined or substituted as the Plaintiff in this action within a
reasonable time as allowed by Rule 17. Trefren Construction
Company represented itself as a corporate entity. There is no
question of fact that no such corporate entity exists. Because
the corporate entity could not be revived at the time the
Parties executed their contracts, Plaintiff perpetrated a
material misrepresentation upon Defendants. As a result, the
Parties' contract is voidable, and Defendants are entitled to
judgment as a matter of law.

[¶18] Trefren Construction timely filed a notice of appeal to this Court.

STANDARD OF REVIEW

[¶19] This Court reviews summary judgment orders de novo. Snell v. Snell, 2016 WY
49, ¶ 18, 374 P.3d 1236, 1240 (Wyo. 2016). We have explained:

We review a summary judgment in the same light as the
district court, using the same materials and following
the same standards. Snyder v. Lovercheck, 992 P.2d
1079, 1083 (Wyo.1999); 40 North Corp. v. Morrell,
964 P.2d 423, 426 (Wyo.1998). We examine the record
from the vantage point most favorable to the party
opposing the motion, and we give that party the benefit
of all favorable inferences that may fairly be drawn
from the record. Id. A material fact is one which, if
proved, would have the effect of establishing or
refuting an essential element of the cause of action or
defense asserted by the parties. Id. If the moving party
presents supporting summary judgment materials
demonstrating no genuine issue of material fact exists,
the burden is shifted to the non-moving party to present
appropriate supporting materials posing a genuine issue
of a material fact for trial. Roberts v. Klinkosh, 986 P.2d
153, 155 (Wyo.1999); Downen v. Sinclair Oil Corp.,
887 P.2d 515, 519 (Wyo.1994).

6
 Rogers v. Wright, 2016 WY 10, ¶ 7, 366 P.3d 1264, 1269
(Wyo. 2016) (quoting Inman v. Boykin, 2014 WY 94, ¶ 20,
330 P.3d 275, 281 (Wyo. 2014)).1

Snell, ¶ 18, 374 P.3d 1240.

DISCUSSION

[¶20] We will address the district court’s rulings dismissing the complaint for lack of
jurisdiction, denying the motion substitute the real party in interest, and declaring the
parties’ contracts voidable in that order. Defendants have, however, also asked that this
appeal be dismissed as moot. Thus, as a preliminary matter, we will first address
Defendants’ mootness argument.

I. Mootness

1
Trefren Construction contends that the district court erred in converting Defendants’ motion to dismiss
to a motion for summary judgment and that the standard of review should be that applicable to the
granting of a motion to dismiss. This Court has addressed conversion of a motion to dismiss as follows:

We have explained that if the matters outside of the pleadings considered are affidavits
attached to the motion to dismiss, conversion occurs automatically. Cranston v. Weston
Cnty. Weed & Pest Bd., 826 P.2d 251, 254 (Wyo.1992). However, if materials other than
affidavits are considered, “such as discovery documents, conversion does not occur
automatically. The court may still treat the motion as one for summary judgment, but the
record must demonstrate that the parties had notice of the conversion and that the
nonmovant had an opportunity to respond.” Id. At a minimum, the nonmoving party must
have ten days to respond to the converted motion for summary judgment. Shriners Hosp.
for Crippled Children, Inc. v. First Sec. Bank of Utah, N.A., 835 P.2d 350, 356
(Wyo.1992).

Inman v. Boykin, 2014 WY 94, ¶ 15, 330 P.3d 275, 280 (Wyo. 2014) (quoting Ridgerunner, LLC v.
Meisinger, 2013 WY 31, ¶ 7, 297 P.3d 110, 113 (Wyo. 2013)).

We agree that in this case there was certainly confusion in how the matter proceeded before the
district court. Defendants filed a motion to dismiss, to which they attached an affidavit and other
materials, but they did not identify the rule under which they were filing the motion. The record contains
no indication the district court notified the parties it was converting the motion to one for summary
judgment, and given the ambiguity in Defendants’ motion, it is not clear that a conversion was automatic.
The court did, however, set a schedule giving both parties an opportunity to provide any briefing they
wished the court to consider, and in providing its briefing on the motion to dismiss, Trefren Construction
submitted an affidavit and other materials outside the pleadings. While the conversion should have been
handled with more clarity, we are satisfied that Trefren had an opportunity to respond, at least with
respect to the issue of the real party in interest. As we will discuss hereafter, notice on the contract
enforceability question was wholly inadequate, but our reversal of that aspect of the district court’s
decision is unaffected by the standard of review we employ.

7
[¶21] We have outlined the circumstances under which an appeal must be dismissed as
moot:
Under the doctrine of mootness, “a court should not hear a
case where there has been a change in circumstances
occurring either before or after a case has been filed that
eliminates the controversy.” Operation Save America v. City
of Jackson, 2012 WY 51, ¶ 21, 275 P.3d 438, 448
(Wyo.2012) (quoting KO v. LDH (In re Guardianship of
MEO), 2006 WY 87, ¶ 27, 138 P.3d 1145, 1153 (Wyo.2006)).
“The central question in a mootness case is ‘whether decision
of a once living dispute continues to be justified by a
sufficient prospect that the decision will have an impact on
the parties.’” Id., ¶ 27, 138 P.3d at 1153–54 (quoting
Southwestern Pub. Serv. Co. v. Thunder Basin Coal Co., 978
P.2d 1138, 1143 (Wyo.1999)).

We have consistently found issues moot when a change
occurs while an appeal is pending that makes any decision we
might make of no consequence. For example, in Northern
Arapaho Tribe v. State (In re SNK), 2005 WY 30, 108 P.3d
836 (Wyo.2005) a child was placed in foster care. Appellant
challenged the foster care placement. After the appeal was
filed, the parties signed a consent decree which returned the
child to her mother and ended the foster placement. We
determined that the issue was moot because any “opinion
relating to the matter would have no impact on the parties.”
Id., ¶ 5, 108 P.3d at 837. In McLain v. Anderson, 933 P.2d
468, 472 (Wyo.1997) appellants challenged a ruling about
protective covenants but then agreed to amend the covenants
to match the ruling of the trial court. We found that the issue
was moot because any decision “cannot have any practical
effect on the existing controversy.”

In re CRA, 2016 WY 24, ¶¶ 25-26, 368 P.3d 294, 300 (Wyo. 2016).

[¶22] Defendants assert that the Estate has filed a new action against Defendants
asserting claims identical to those alleged in the dismissed complaint, and the Estate does
not dispute that allegation. Based on that filing, Defendants contend that any decision by
this Court concerning the dismissed complaint will have no impact on the parties’
dispute. We disagree.

[¶23] Trefren Construction has asked that this Court reverse the district court’s decision
denying substitution of the Estate as the real party in interest. If we grant that relief,

8
Trefren Construction’s original complaint would be reinstated and, with the Estate
substituted as Plaintiff, the parties would pick up where they left off. Although
Defendants contend the substitution itself will create delays due to pleading amendments
and additional discovery, we would not anticipate that any such delays would be as
lengthy as those associated with starting an entirely new action.

[¶24] Additionally, Trefren Construction has asked that this Court reverse the district
court’s ruling concerning contract formation and enforceability. While the district court’s
order did purport at times to apply only to the named plaintiff in the case before it, the
court's ruling was otherwise couched in terms that would undoubtedly impair, or at least
complicate, any contract claim asserted by the Estate. For example, the court ruled:

Trefren Construction Company represented itself as a
corporate entity. There is no question of fact that no such
corporate entity exists. Because the corporate entity could
not be revived at the time the Parties executed their contracts,
Plaintiff perpetrated a material misrepresentation upon
Defendants. As a result, the Parties’ contract is voidable, and
Defendants are entitled to judgment as a matter of law.

[¶25] Because both the parties’ contracts appear to be signed by Timothy N. Trefren,
now deceased, it may be difficult for the Estate to escape these contract findings.2 Thus,
a reversal of this ruling would also impact the parties’ continuing dispute.

[¶26] For these reasons, we reject Defendants’ request that this appeal be dismissed as
moot.

II. District Court Rulings

A. Real Party in Interest

[¶27] Rule 17 of the Wyoming Rules of Civil Procedure requires that an action be
brought by the real party in interest. It provides, in relevant part:

Every action shall be prosecuted in the name of the real party
in interest. * * * No action shall be dismissed on the ground
that it is not prosecuted in the name of the real party in
interest until a reasonable time has been allowed after
objection for ratification of commencement of the action by,
or joinder or substitution of, the real party in interest; and

2
One of the contracts was signed by Tim N. Trefren and the other by Tim Trefren, but both signatures
appear identical.

9
 such ratification, joinder, or substitution shall have the same
effect as if the action had been commenced in the name of the
real party in interest.

W.R.C.P. 17(a) (LexisNexis 2015) (emphasis added).

[¶28] The district court found that Trefren Construction, as named in the complaint, was
not the real party in interest, and neither party disputes that finding. The court did not
make a finding as to the identity of the real party in interest, but the parties appear to
agree that the Estate is the real party in interest.3 We are therefore left with two questions
we must address with respect to the district court's real party in interest ruling: 1) whether
the court erred when it ruled that because the named plaintiff was not the real party in
interest, the complaint had to be dismissed for lack of subject matter jurisdiction; and 2)
whether the court erred in denying substitution of the Estate as the named plaintiff.

1. Dismissal for Lack of Jurisdiction

[¶29] The district court found that “[w]hen Plaintiff asserted its cause of action, it was a
dissolved corporate entity without the legal possibility of revival.” The court also
rejected Trefren Construction’s argument that a dissolved corporation may bring an
action. The court concluded:

Trefren Construction Co. entered into two contracts
with Defendants. The corporate entity of Trefren
Construction Co. did not, however, exist at the time of the
contracts. If the entity did not exist and it is not a real party
in interest as found above, this Court is without jurisdiction.
Mari v. Rawlins Nat. Bank of Rawlins, 794 P.2d 85, 88 (Wyo.
1990). Accordingly, the matter with this plaintiff must be
dismissed.

[¶30] Trefren Construction argues this ruling, which suggests that dismissal must follow
when an action is not brought in the name of the real party in interest, is contrary to the
plain terms of Rule 17(a). We agree.

[¶31] Rule 17(a) directs that “[n]o action shall be dismissed on the ground that it is not
prosecuted in the name of the real party in interest until a reasonable time has been

3
Trefren Construction asserted below that the Estate is the real party in interest. It supported that
assertion with an affidavit attesting that when Timothy Nelson Trefren died, Trefren Construction and its
assets and liabilities were transferred to the Estate. In their responses to Trefren Construction’s
alternative motions to substitute or amend, Defendants presented no evidence to the contrary. Likewise,
on appeal, Trefren Construction has asserted the Estate as the real party in interest, and Defendants have
offered no opposition to that assertion.

10
allowed after objection for ratification of commencement of the action by, or joinder or
substitution of, the real party in interest.” W.R.C.P. 17(a). Thus, not only does Rule
17(a), by its plain terms, not mandate dismissal when an action is not prosecuted in the
name of the real party in interest, but it expressly requires the opposite—that the court
allow a reasonable time to cure the defect through ratification, joinder or substitution.

[¶32] The fact that a dissolved corporation, without the capacity to sue, may have been
the named plaintiff has no bearing on the requirement that a reasonable time be allowed
for substitution. Even assuming a named plaintiff lacks the capacity to sue, substitution
remains an available mechanism to cure the defect in naming the real party in interest.
Esposito v. U.S., 368 F.3d 1271, 1277-78 (10th Cir. 2004). 4 In Esposito, the Tenth
Circuit rejected an argument that an action filed by a party lacking capacity to sue is a
nullity that makes the Rule 17(a) substitution requirement inapplicable. Id. The court
explained:

We do, however, find support in the federal rules for
permitting substitution notwithstanding Mr. Esposito’s lack of
capacity at the time the suit was filed. As the district court
pointed out, nothing in Rule 17(a) requires that the original
plaintiff have capacity to sue. The fact is, Rule 17(a) does
more than merely provide a relation back principle. It
provides that substitution “shall have the same effect as if the
action had been commenced in the name of the real party in
interest.” Fed.R.Civ.P. 17(a) (emphasis added).

Esposito, 368 F.3d 1277-78 (footnote omitted); see also Russell v. Sullivan, 2012 WY 20,
¶ 22, 270 P.3d 677, 682-83 (Wyo. 2012) (relying on Esposito Rule 17(a) relation-back
analysis to allow joinder of petitioner to will contest where original petitioners lacked
standing and action without such joinder would have been a nullity).

[¶33] Having concluded that Rule 17(a) did not mandate dismissal, we turn to the
district court’s determination that dismissal was required because the real party in interest
requirement is jurisdictional. Our Court has a line of decisions holding, as the district
court ruled, that the real party in interest requirement is jurisdictional. McNeiley v. Ayres
Jewelry Co., 886 P.2d 595, 600 (Wyo. 1994); Mari v. Rawlins Nat’l Bank of Rawlins, 794

4
Wyoming’s Rule 17(a) closely resembles its federal counterpart. See F.R.C.P. 17(a)(3) (“The court may
not dismiss an action for failure to prosecute in the name of the real party in interest until, after an
objection, a reasonable time has been allowed for the real party in interest to ratify, join, or be substituted
into the action. After ratification, joinder, or substitution, the action proceeds as if it had been originally
commenced by the real party in interest.”). Given the similarity between our rule and the federal rule, we
find the Tenth Circuit’s analysis persuasive. See CSC Group Holdings, LLC v. Automation &
Electronics, Inc., 2016 WY 26, ¶ 24, 368 P.3d 302, 308 (Wyo. 2016) (“We consider federal authority
interpreting procedural rules highly persuasive when our rules are sufficiently similar or identical.”).

11
P.2d 85, 88 (Wyo. 1990); Greenough v. Prairie Dog Ranch, Inc., 531 P.2d 499, 500
(Wyo. 1975); Wyoming Wool Marketing Ass’n v Urruty, 394 P.2d 905, 908 (Wyo. 1964);
Gardner v. Walker, 373 P.2d 598, 599 (Wyo. 1962). We also, however, have a line of
decisions holding that a real party in interest defense or objection is waived if it is not
timely raised, implying that the requirement is not jurisdictional. Shepard v. Beck, 2007
WY 53, ¶ 10, 154 P.3d 982, 986 (Wyo. 2007); Action Bailbonds v. State, 2002 WY 103,
¶ 8, 49 P.3d 992, 994 (Wyo. 2002); Cockreham v. Wyoming Production Credit Ass’n,
743 P.2d 869, 874 (Wyo. 1987); Gifford-Hill-Western, Inc. v. Anderson, 496 P.2d 501,
502 (Wyo. 1972). We take this opportunity to resolve this conflict and hold, consistent
with our more recent decisions, that the real party in interest requirement is not
jurisdictional.

[¶34] Gardner was our earliest decision to hold that the real party in interest requirement
is jurisdictional, and the Court reached that holding based on another state’s
interpretation of its own rule, as well as a secondary source. Gardner, 373 P.2d at 599
(citing Wilson v. Gibbes Machinery Co., 1 S.E.2d 490, 492 (S.C. 1939); 67 C.J.S. Parties
§ 10, pp. 909-910). The Gardner decision did not analyze the jurisdictional question or
explore the basis for treating the requirement as jurisdictional. Id. Our subsequent
decisions holding the requirement is jurisdictional all trace back to the Gardner decision.

[¶35] Our decisions holding a real party in interest objection can be waived have
reasoned that the issue must first be raised before the district court in order to comply
with Rule 17(a)’s requirement that the named plaintiff be given an opportunity for
ratification, joinder, or substitution. Action Bailbonds, ¶ 8, 49 P.3d at 994; Cockreham,
743 P.2d at 874. We agree with these practical considerations. Additionally, we can
discern no basis to find the real party in interest requirement jurisdictional.

[¶36] “A court has subject matter jurisdiction when it has the authority to consider and
decide ‘cases of the general class of which the proceeding belongs.’” Linch v. Linch,
2015 WY 141, ¶ 17, 361 P.3d 308, 313-14 (Wyo. 2015) (quoting Brush v. Davis, 2013
WY 161, ¶ 9, 315 P.3d 648, 651 (Wyo. 2013)). The real party in interest requirement
serves to protect a “defendant from the vexation of a multiplicity of actions, with the
possible burden of multiple recoveries, all emanating from the same cause.” Vargas Ltd.
Partnership v. Four H Ranches Architectural Control Committee, 2009 WY 26, ¶ 12, 202
P.3d 1045, 1051 (Wyo. 2009) (quoting Mari, 794 P.2d at 88). While the requirement
serves an important function, it does not speak to a court’s jurisdiction or limit a court’s
power to hear a matter. See Lincoln Property Co. v. Roche, 546 U.S 81, 90, 126 S.Ct.
606, 613, 163 L.Ed.2d 415 (2005) (Rule 17(a) addresses party joinder not subject matter
jurisdiction); K-B Trucking Co. v. Riss Intern. Corp., 763 F.2d 1148, 1153, n.2 (10th Cir.
1985) (“The real party in interest defense may be waived if it is not timely raised.”).

12
[¶37] For these reasons, we hold that the real party in interest requirement is not
jurisdictional. To the extent our cases hold otherwise, they are hereby overruled.5

[¶38] Having concluded that neither Rule 17(a) nor jurisdictional limits necessarily
mandated dismissal of Trefren Construction’s complaint, we must next address whether
the district court erred in denying Trefren Construction’s motion to substitute the real
party in interest. It is our resolution of that question that will determine whether the
complaint was in the end properly dismissed. If the substitution was properly denied,
then the dismissal for failure to bring the action in the name of the real party in interest
would necessarily follow. If we find the substitution should have been permitted, that
substitution will cure the complaint's defect, making dismissal improper.

2. Denial of Motion to Substitute

[¶39] While it is Rule 17(a) that addresses the requirement that an action be brought by
the real party in interest, Trefren Construction sought to have the Estate substituted as the
real party in interest first through a Rule 25 motion to substitute and then alternatively
through a Rule 15 motion to amend the complaint. Trefren Construction also, however,
asserted Rule 17(a) as a basis for allowing the substitution, arguing that “considering
Rule 17(a) in conjunction with Plaintiff's previously filed Motion for Substitution of
Party, the remedy required here is the substitution of The Estate of Timothy N. Trefren as
the real party in interest.” Since Rule 17 is the controlling rule with respect to a real
party in interest analysis, and Trefren Construction effectively invoked the rule as the
basis for its substitution motion, we begin our review with the district court’s Rule 17
ruling rather than with the district court’s rulings on the alternative Rule 15 and Rule 25
motions.6

[¶40] Although Rule 17(a) mandates that an action not be dismissed until a reasonable
time has been allowed for substitution of the real party in interest, the district court’s
decision whether to allow the substitution is a decision we review for an abuse of
discretion. Esposito, 368 F.3d at 1273. To the extent our review of the district court’s
Rule 17(a) ruling requires interpretation of the rule, our review is de novo. Russell, ¶ 13,
270 P.3d at 680.

5
These cases include: McNeiley v. Ayres Jewelry Co., 886 P.2d 595, 600 (Wyo. 1994); Mari v. Rawlins
Nat'l Bank of Rawlins, 794 P.2d 85, 88 (Wyo. 1990); Greenough v. Prairie Dog Ranch, Inc., 531 P.2d
499, 500 (Wyo. 1975); Wyo. Wool Marketing Ass’n v Urruty, 394 P.2d 905, 908 (Wyo. 1964); Gardner v.
Walker, 373 P.2d 598, 599 (Wyo. 1962).
6
While Rule 17 may be used in conjunction with other rules, Rule 17(a) itself provides an independent
basis for a motion to substitute the real party in interest. 6A Charles A. Wright, Arthur R. Miller & Mary
K. Kane, Federal Practice and Procedure, Civil § 1555 (3d ed., database updated October 2016). In
other words, a motion to substitute the real party in interest may be filed as a Rule 17(a) motion without
resort to a Rule 15 motion to amend, a Rule 21 joinder motion, or a Rule 25 motion to substitute.

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[¶41] This Court has not previously had occasion to address the denial of a Rule 17(a)
motion to substitute and we therefore look once again to federal authority. The Tenth
Circuit, drawing on the advisory committee notes to the federal rule, has held that the
factors to be considered in deciding a motion to substitute are: 1) whether the mistake in
naming the plaintiff was an honest mistake and not the result of “deliberate tactical
maneuvering;” and 2) whether the defendant or defendants will be prejudiced by the
substitution. Esposito, 368 F.3d at 1276.

[¶42] The district court did not expressly address Trefren Construction’s motion to
substitute as a Rule 17(a) motion, but the court did make the following finding:

The time that has lapsed from when this action was
filed until mediation failed and the motion to dismiss or for
summary judgment was filed was more than a reasonable
amount of time for the real party in interest to ratify, join, or
seek substitution as the Plaintiff in this matter pursuant to
Rule 17. Should a cause of action lie for that real party in
interest against any of the Defendants in this matter, justice
warrants that be in a new action, not by substitution of the
Plaintiff at this stage of litigation.

[¶43] With respect to the timeliness of the motion to substitute, Trefren Construction
argues that the district court measured the delay in its filing of the motion to substitute
from the wrong date. We agree. Rule 17(a) requires that an action not be dismissed
“until a reasonable time has been allowed after objection” for substitution of the real
party in interest. W.R.C.P. 17(a) (emphasis added). The court thus erred in measuring
the delay from the date the action was originally filed, rather than from the date on which
Defendants made their real party in interest objection. Defendants made that objection
with the filing of their motion to dismiss on November 20, 2015. Trefren Construction
responded with a motion to substitute the real party in interest on November 23, 2015, a
delay of three days. The properly-measured delay of three days was not unreasonable.

[¶44] With respect to whether the mistake in naming the plaintiff was an honest mistake,
Trefren Construction submitted the affidavit of Timothy R. Trefren. Through that
affidavit, Timothy R. Trefren attested that when the action was originally filed, it was his
understanding that his father had operated Trefren Construction as a corporation and that
he believed it was still a corporation at the time the complaint was filed. He further
stated that based on that belief, he told the attorney who prepared and filed the complaint
that the business was operated as a corporation. In Defendants’ opposition to the motion
to substitute, they argued they had been ambushed by the late-hour change in Trefren
Construction's business status, but they offered no evidence in support of that claim and
no evidence to show some type of tactical maneuvering by Trefren Construction. The

14
district court made no findings concerning Trefren Construction’s motivation, but we are
satisfied, based on the only evidence on the question, that the mistake in identifying
Trefren Construction as a corporation was an honest mistake.

[¶45] With respect to the final factor, whether the substitution will prejudice Defendants,
the district court stated in general terms that substitution was not in the interests of
justice, but it made no specific findings of prejudice. Defendants argue they are
prejudiced because with the change in business status and substitution of parties, the
action amounts to an entirely new action, with new defenses and counterclaims they may
assert and new discovery that will be required. We are not persuaded.

[¶46] In most particulars, the case remains much the same with the substitution of the
Estate as the named plaintiff: the same fact witnesses; the same contracts; the same
project; the same work completed; the same alleged defects in the work; and the same
payments made and not made. To the extent Defendants make a showing that additional
discovery is required, the district court has the discretion to rule on a request for
additional discovery. Likewise, if Defendants are able to show a factual basis for
additional counterclaims and affirmative defenses, the district court has the discretion to
rule on a motion to amend Defendants’ pleadings. The alleged prejudice is not sufficient
to justify denial of the motion to substitute. See Scheufler v. General Host Corp., 126
F.3d 1261, 1270 (10th Cir. 1997) (finding no tangible prejudice in Rule 17(a) joinder
where defendant was given opportunity to conduct discovery on possible defenses to
joined parties' claims).

[¶47] Under these circumstances, we conclude that the district court abused its discretion
under Rule 17(a) when it denied Trefren Construction’s motion to substitute the Estate as
the real party in interest. Having concluded that the substitution should have been
permitted under Rule 17(a), we need not address the court’s Rule 15 and Rule 25 rulings.

B. Summary Judgment on Contract Enforceability

[¶48] After ruling that the complaint had to be dismissed because it was not brought in
the name of the real party in interest, the district court made an additional ruling that
Defendants were entitled to judgment as a matter of law because the parties’ contracts
were voidable. The court summarized its findings in support of that ruling as follows:

Trefren Construction Company held itself out as a
corporate entity. It entered into contracts with Defendants as
a corporate entity. No such corporate entity exists. In fact, as
a corporate entity, Trefren Construction has been defunct
since 2003. Because the corporation was defunct and could
not be revived at the time the Parties executed their contracts,
Plaintiff perpetrated a material misrepresentation upon

15
 Defendants and prevented a meeting of the minds. As a
result, the Parties’ contract is voidable.

[¶49] The district court also made the following findings in support of its summary
judgment ruling:

There is nothing in the evidence to suggest that Trefren
Construction Co. held itself out as anything but a corporation.
* * * Trefren Construction Co. operated like a corporation
and represented itself as a corporation. Of significance is
[the] fact that Plaintiff has never denied that it represented
itself as a corporation.

[¶50] Rule 56 allows entry of summary judgment “if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the affidavits, if any, show that
there is no genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.” W.R.C.P. 56(c) (LexisNexis 2015). We have also said:

The party requesting summary judgment bears the initial
burden of establishing a prima facie case that no genuine
issue of material fact exists and that summary judgment
should be granted as a matter of law. W.R.C.P. 56(c);
Throckmartin v. Century 21 Top Realty, 2010 WY 23, ¶ 12,
226 P.3d 793, 798 (Wyo.2010). Until the movant has made a
prima facie showing that there are no genuine issues of
material fact, the non-movant has no obligation to respond to
the motion with materials beyond the pleadings. Id.

Amos, ¶ 15, 359 P.3d at 958 (quoting Johnson v. Dale C. and Helen W. Johnson Family
Revocable Trust, 2015 WY 42, ¶¶ 12–15, 345 P.3d 883, 886–87 (Wyo. 2015)).

[¶51] The most fundamental flaw in the district court’s ruling is that Defendants did not
move for summary judgment on the ground that the parties’ contracts were voidable and
they submitted no evidence on that question. Indeed, Defendants had asserted no such
claim in their answer, affirmative defenses, or counterclaims. That this claim had not
been made prior to the district court’s entry of summary judgment is clear from
Defendants’ opposition to Trefren Construction’s motion to substitute. Defendants
asserted in that opposition that had they known the case was being brought by a sole
proprietorship, they would have approached the case differently and would have “looked
closely” at claims of misrepresentation and “perhaps fraud in the inducement of the
contract.” Defendants also stated “they would have considered filing a motion for
summary judgment based on what they perceive as misrepresentations concerning Mr.

16
Trefren’s statements concerning the status of a corporation and his inducement of the
contract.”

[¶52] Plainly, Trefren Construction had no notice that a claim that the parties’ contracts
were voidable would be considered by the district court as a basis for entering an order of
summary judgment in favor of Defendants. Moreover, since Defendants had made no
prima facie showing that the parties’ contracts were voidable, Trefren Construction was
under no obligation to submit evidence on the question. Most particularly, Trefren
Construction had no opportunity or reason to submit evidence defending against the
allegation that it represented itself as a corporation during contract negotiations. The
district court’s summary judgment ruling that the contracts were voidable was thus
procedurally infirm and unsupported by a showing of undisputed material facts.7

CONCLUSION

[¶53] We conclude that the district court erred in dismissing the complaint for lack of
subject matter jurisdiction, and in so ruling, we overrule our prior decisions holding that
the real party in interest requirement is jurisdictional. We further conclude that the
district court abused its discretion in denying Trefren Construction’s motion to substitute
and erred in granting summary judgment to Defendants on the enforceability of the
parties’ contract claims. We reverse and remand for proceedings in accordance with
these holdings.

7
The parties’ contracts appear to be the only evidence on which the district court relied in making its
ruling. In that regard, it is notable that while the complaint identified Trefren Construction as a Wyoming
corporation, there was nothing in the parties’ contracts that expressly identified Trefren Construction as a
Wyoming corporation.

17