WYOMING COURT RULES

122 close of plaintiffs’ case. The denial of the grant- ee’s motion was not a judicial determination that the plaintiffs’ had established that the grantee exerted undue influence but, instead, was merely a finding that the plaintiffs had met their burden of establishing a prima facie case and a ruling that the grantee would then be required to come forward with evidence to re- but the prima facie case. Krafczik v. Morris, 2009 WY 53, 206 P.3d 372, 2009 Wyo. LEXIS 54 (Wyo. 2009). Appealability of orders. — When a motion to dismiss under subdivision (a)(2) of this rule is denied, the case continues, and the order is not appealable. Wilkinson v. State ex rel. Wyo. Workers’ Safety & Compensation Div. (In re Wilkinson), 991 P.2d 1228, 1999 Wyo. LEXIS 181 (Wyo. 1999), reh’g denied, 2000 Wyo. LEXIS 1 (Wyo. Jan. 5, 2000). Waiver of right to appeal. — A court’s denial of a subdivision (b)(1) motion to dismiss is not reviewable when a defendant has pro- ceeded to present evidence following the ruling; a defendant, by presenting evidence, waives his right to appeal from a denial of a motion to dismiss. Hill v. Zimmerer, 839 P.2d 977, 1992 Wyo. LEXIS 154 (Wyo. 1992). When intervenor remains party pending outcome of appeal. — Where the denial of motion to intervene as of right is in the process of being appealed with a stipulation for dis- missal without prejudice is entered into by the other parties, the intervenor remains a party pending the outcome of the appeal. James S. Jackson Co. v. Horseshoe Creek, Ltd., 650 P.2d 281, 1982 Wyo. LEXIS 378 (Wyo. 1982). Res judicata applicable, following dis- missal for failure to appear, absent appeal of dismissal. — Although dismissal of a first suit under subdivision (b)(1) for failure to ap- pear at trial did not result in a trial on the merits, res judicata applied since the plaintiff was afforded the opportunity for a trial on the merits and his day in court, but the plaintiff did not avail himself of his opportunity nor appeal the dismissal with prejudice or the denial of his petition to vacate judgment. CLS v. CLJ, 693 P.2d 774, 1985 Wyo. LEXIS 424 (Wyo. 1985). Res judicata not applicable. — Res judi- cata did not bar buyer’s instant action against the sellers to compel arbitration where the sellers were dismissed from the buyer’s original action for fraud and misrepresentation without prejudice, pursuant to Wyo. R. Civ. P. 41(a)(1)(ii), and because of the voluntary dis- missal, the buyer’s claim for arbitration had not been adjudicated. Rawlinson v. Wallerich, 2006 WY 52, 132 P.3d 204, 2006 Wyo. LEXIS 52 (Wyo. 2006). Action dismissed under Rule 12(b)(6), not Rule 41. — See LC v. TL, 870 P.2d 374, 1994 Wyo. LEXIS 33 (Wyo.), cert. denied, 513 U.S. 871, 115 S. Ct. 195, 130 L. Ed. 2d 127, 1994 U.S. LEXIS 6327 (U.S. 1994). Law reviews. — For note, “Plaintiff’s Right to Dismiss Under the Code and the Proposed Rules,” see 6 Wyo. L.J. 296. For article, “Wyoming Practice,” see 12 Wyo. L.J. 202 (1958). For note, “The Two Dismissal Rule,” see 12 Wyo. L.J. 276 (1958). For case note, “Oil and Gas — The Burden of Proof in Implied Covenant to Develop Cases: Wyoming Rejects the ‘Oklahoma Rule.’ Sonat Exploration Co. v. Superior Oil Co., 710 P.2d 221 (Wyo. 1985),” see XXII Land & Water L. Rev. 141 (1987).