Summary 2009 WY 136

Summary of Decision issued November 6, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Legarda-Cornelio v. State

Citation: 2009 WY 136

Docket Number: S-09-0083

Appeal from the District Court of Natrona County, Honorable David B. Part, Judge

Representing Appellant (Defendant): Esteban Cornelio LeGarda, Pro se.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Justin A. Daraie, Prosecution Assistance Program, Student Director and Intern.

Facts: The appellant was convicted and sentenced in state court and then in federal court for unrelated offenses. He subsequently filed a W.R.Cr.P. 35(b) motion with the state district court asking it to order that his state sentences run concurrently with his federal sentences, which motion the district court denied. The appellant appeals that denial.
Issues: Whether the district court abused its discretion in denying the appellant’s W.R.Cr.P. 35(b) motion.

Holdings: Although it appears that the district court was amenable to the appellant’s request that his state sentences run concurrently with his impending federal sentences, the district court never explicitly ordered that, nor could it. If a defendant is subject to prosecution in more than one court, the decision regarding how the sentences will run with respect to one another should be made by the last judge to impose a sentence. The underlying rationale for this theory is that a judge cannot require a sentence to be served consecutively to a sentence that has not yet been imposed. Moreover, a state district court cannot bind a federal court with such sentencing restrictions. Thus, the district court did not abuse its discretion in refusing to order the sentences to run concurrently.

With regard to the appellant’s claim that his good behavior justified a sentence reduction, it is clear from the record that the district court considered not only the appellant’s W.R.Cr.P. 35(b) motion, which included the certificates and documentation of the self-improvement courses, but it also considered additional material, such as the appellant’s Presentence Investigation Report. After considering everything as a whole, the district court denied the appellant’s motion. While it is commendable that the appellant has chosen to turn his life around and take a proactive role in completing self-improvement courses while he has been incarcerated, those facts alone do not require the district court to grant the appellant’s W.R.Cr.P. 35(b) motion. Nor do those facts alone provide grounds to find that the district court abused its discretion in denying the appellant’s motion. After reviewing the entire record and giving the required deference to the district court’s determination, it cannot be said that it abused its discretion.

The state district court did not have authority to determine whether the appellant’s state sentences were to run concurrently with or consecutive to the appellant’s impending federal sentences. The district court was not the last court to impose a sentence on the appellant. Moreover, the district court properly denied the appellant’s W.R.Cr.P. 35(b) motion because it was still without authority to issue an order that it could not have entered in the first instance. Also, the district court was not required to grant the appellant’s W.R.Cr.P. 35(b) motion simply because the appellant demonstrated commendable behavior and achievement while he had been incarcerated.

Affirmed.

C.J. Voigt delivered the opinion for the court.

Link: http://tinyurly9rehgx .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 135

Summary of Decision issued November 6, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Collings v. Lord

Citation: 2009 WY 135

Docket Number: S-08-0225

Appeal from the District Court of Uinta County, Honorable Dennis L. Sanderson, Judge

Representing Appellant (Plaintiff): Mark W. Harris of Harris Law Firm, Evanston, Wyoming

Representing Appellee (Defendant): Raymond W. Martin of Sundahl, Powers, Kapp & Martin, Cheyenne, Wyoming

Issues: Whether the District Court erred in granting summary judgment and concluding that no genuine issue of material fact existed that Appellee’s negligence was not a cause of Appellant’s injuries.

Facts: Appellant seeks recovery for injuries sustained while using Appellee’s table saw during restoration of a home owned by Appellee.

Holdings: In order to maintain a claim of negligence, a plaintiff must prove: 1) the defendant owed the plaintiff a duty of reasonable care; 2) the defendant breached the duty; and 3) the defendant’s breach was the proximate cause of injury or loss to the plaintiff. In order for proximate cause to exist, “the accident or injury must be the natural and probable consequence of the act of negligence. In fact, the ultimate test of proximate cause is foreseeability of injury. In order to qualify as a legal cause, the conduct must be a substantial factor in bringing about the plaintiff’s injuries. Proximate cause is a question of fact in the usual case, reserved for the determination by the trier of fact, unless the evidence is such that reasonable minds could not disagree.

In the present case, the Appellant made no showing of neglect or failure to perform a duty by the Appellee. There is no substantial evidence in the record that shows that the accident was a foreseeable consequence of Appellee’s conduct. Rather, the evidence presented to the district court shows that neither party knows exactly what caused the saw blade to bind. Specifically, Appellant could not identify what Appellee did, if anything, to cause the kickback and resultant injury to Appellant. Appellee knew of Appellant’s prior experience with both table saws and dado blades. As to the particular task at hand, Appellant assured Appellee he understood what needed to be done. In fact, there is evidence on the record as to Appellant’s experience as a cabinet maker and carpenter – in the past, Appellant had actually taken precautions to eliminate and/or reduce the risk of the potential and obvious danger of using dado blades. He was familiar with and in the past had made and used “push sticks” when using dado blades. The purpose of a “push stick,” according to Appellant, is to prevent the operator’s hands from coming into contact with the dado blades – the exact scenario in the instant case. By Appellant’s own account, not keeping wood straight in alignment with the fence and blade on the table saw can cause a bind – the only “input” into keeping a piece of wood in alignment is the operator, who manually pushes the wood across the saw. Appellee was not pushing the wood with Appellant, and, accordingly, did not proximately cause his injuries.

Appellant fails on appeal to show any genuine issue of material fact on the element of causation, and, as such, Appellee is entitled to judgment as a matter of law.

Affirmed.

J. Hill delivered the opinion for the court.

Link: http://tinyurl.com/yflgjxc

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 134

Summary of Decision issued November 6, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court

Case Name: Pond v. Pond

Citation: 2009 WY 134

Docket Number: S-08-0253

Appeal from the District Court of Campbell County, Honorable John R. Perry, Judge

Representing Appellant (Defendant): Dwight F. Hurich, Hurich Law Office, Gillette, Wyoming

Representing Appellee (Plaintiff): Rex O. Arney and Vincent P. Schutte of Brown, Drew & Massey, LLP, Sheridan, Wyoming

Issues: Whether the Trial Court abused its discretion in making an equitable division of the assets and debts of the parties, when the Trial Court provided the marital estate should be equalized but then failed to consider the debts each party would take.
Holdings: The disposition of marital property is committed to the sound discretion of the district court and will not be disturbed absent a manifest abuse of that discretion. Abuse of discretion occurs only when the disposition shocks the conscience of the Court and appears so unfair and inequitable that reasonable persons could not abide it.

Dividing a marital estate is not necessarily a mechanical process but rather is guided by considering the factors in Wyo. Stat. § 20-2-114 (2009). The district court has the discretion to determine what weight should be given each of these individual factors and to form a distributive scheme appropriate to the peculiar circumstances of each individual case. The goal of marital property division is to reach an equitable result.

In the instant appeal, Appellant contends that, by using the term “equalize,” the district court intended both parties to receive roughly equivalent dollar amounts from the division of the marital estate. In Wyoming, the distribution of a marital estate is equalized within the context of the respective equities of the parties. In other words, in a divorce proceeding a district court is required to divide property equitably, not necessarily monetarily equally. Indeed, a just and equitable distribution is as likely as not to be monetarily unequal. There is nothing in the record or the district court’s final order to support Appellant’s assumption that the district court intended to order a 50/50 monetary split. Specifically, there is no evidence that the district court failed to take into account the debts of the parties in reaching its final distributive scheme. At trial, Appellant introduced an exhibit representing the marital debts. The district court, in its final order, expressly accepted the exhibit as accurately reflecting the debts. The final order explicitly divided the debt between the parties as the district court determined equitable. The district court then ordered Appellant to pay Wife to equalize the “marital estate,” not just the marital assets. It is extremely doubtful the district court neglected to take the marital debt into account in its decision when the final order so thoroughly discusses the debt. Since all existing indicators point to the district court’s final order “equalizing” the marital estate with both the assets and the liabilities in mind, when it used the term “equalize,” the district court intended to divide the property equitably but not equally.

While Husband’s appellate argument is marginal, as is his compliance with the rules, the appeal is not so egregious as to merit sanctions.

Appellant has failed to establish that the district court erred in dividing the marital estate. The district court’s division of the marital estate, even if not equal, is equitable. The decision of district court is affirmed. Sanctions will not be imposed on the Appellant.

Affirmed.

J. Golden delivered the decision of the Court.

Link: http://tinyurl.com/yapokem .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 133

Summary of Decision issued November 4, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Bromley v. State

Citation: 2009 WY 133

Docket Number: S-08-0254

Appeal from the District Court of Carbon County, the Honorable Wade E. Waldrip, Judge.

Representing Appellant Bromley: Jason M. Tangeman of Nicholas & Tangeman, LLC, Laramie, Wyoming.

Representing Appellee State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Graham M. Smith, Assistant Attorney General.

Facts/Discussion: Bromley killed Jason Voss with a shotgun in 2007. He was charged with second-degree murder, but convicted by a jury of the lesser-included offense of manslaughter.
District court’s revision of the trial transcript: On its face, W.R.A.P. 3.04 allows the district court to settle the record whenever any difference arises as to whether the record is accurate; it does not require a motion from one of the parties. Bromley did not suggest that the district court engaged in intentional falsification which left the question of whether the district court’s determination was “plainly unreasonable.” The Court stated it would be hard-pressed to find plainly unreasonable the district court’s recollection of the testimony as having mentioned methamphetamine use when the appellant also stated that such was the testimony.
Admission of evidence of methamphetamine use: Bromley gave a statement to his cellmate while he was incarcerated in Carbon County jail indicating that he had been coming down from drug use at the time of the shooting. The Court stated that Bromley’s statements were clearly admissions by a party opponent under W.R.E. 801(d)(2) and were therefore not hearsay. While they also may have related to uncharged misconduct, they were relevant to prove his state of mind at the time of the shooting. The statements were more probative of his state of mind than any other available evidence and were not unduly prejudicial. The Court noted that even without the methamphetamine evidence, there was sufficient evidence presented for the jury to have found Bromley guilty beyond a reasonable doubt of involuntary manslaughter.
Constitutionality of Second-degree murder statute: In the district court, Bromley filed a motion alleging the second-degree murder statute to be facially unconstitutional. Because Bromley was acquitted of second-degree murder, the Court found the issue to be moot and declined to address it.

Conclusion: Bromley failed to prove that the district court acted unreasonably in ordering the trial transcript to be amended. Bromley also failed to prove that the district court abused its discretion in admitting the testimony about the appellant’s jailhouse confession, or the testimony of Evans as to methamphetamine. Once Bromley’s admission of methamphetamine use was admitted, there existed a foundation for Evans’ testimony about methamphetamine use. Bromley’s argument that Wyoming’s second-degree murder statute was unconstitutional was rendered moot when the jury acquitted him of that charge.

Affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/ykpbo3x .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 132

Summary of Decision issued November 3, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Werner Enterprises, Inc. v. Brophy

Citation: 2009 WY 132

Docket Number: S-08-0271; S-08-0272

Appeal from the District Court of Laramie County, the Honorable Edward L. Grant, Judge.

Representing Werner Enterprises, Inc: Patrick J. Murphy, Jason A. Neville, Ryan Schwartz of Williams, Porter, Day & Neville, PC, Casper, Wyoming; urtis B. Buchhammer of Buchhammer & Kehl, PC, Cheyenne, Wyoming.

Representing Brophy: Gary J. Ceriani, Valeri S. Pappas of Davis & Ceriani, PC, Denver, Colorado; L. Eric Lundgren of Lundgren Law Offices, PC, Cheyenne, Wyoming.

Facts/Discussion: A jury awarded the Brophys damages in the amount of $18,069,257 for injuries they sustained as a result of a collision between Mr. Brophy’s vehicle and a semi-truck owned by Werner Enterprises, Inc. (Werner) and being driven by Werner employee, Cheryl R. Neal.
Jury instructions: Werner contended the instruction that was not given was critical because it created a statutory presumption that Brophy failed to yield the right of way which shifted the burden to the Brophys to prove that he did not fail to yield. The Brophys responded that Werner failed to object to the district court’s ruling on the proposed instruction and therefore, it waived the claim concerning instructional error absent plain error. It was clear from the record that Werner objected to the omission from the proposed instruction and Werner offered an instruction in its place containing the omitted language. The court’s question to decide was whether Werner’s objection was sufficient to preserve the issue it raised on appeal. The case most analogous to the present one was City of Cheyenne v. Simpson. The Simpsons sued the City for damages to their building by a truck bearing the City’s logo. The Court concluded the objection did not meet the Rule 51(b) requirements. As in Simpson, Werner’s argument that the statute created a presumption that shifted the burden of proof was not presented to the district court during the trial.
Werner’s counsel stated that this was a plain error issue conceding that trial counsel’s objection did not preserve the statutory presumption issue and that the review was not for abuse of discretion as it would have been had a proper objection been made. After reviewing the claimed instructional error for plain error, the Court concluded Werner had not established that the district court transgressed a clear rule of law when it declined to instruct the jury on its own initiative that § 31-5-222(c) created a statutory presumption that Brophy failed to yield and shifted the burden to the Brophys to show that he did yield. The Court further concluded that under the particular facts presented in the case, such an instruction may not have been appropriate; the question of fault was a factual one for the jury to decide based upon its assessment of the evidence presented and the witness’ credibility. The Court concluded the evidence was sufficient to support the jury’s verdict.
Questioning Ms. Neal concerning falsification of driver’s log: Prior to trial, Werner filed a motion seeking an order prohibiting the Brophy’s safety consultant from testifying that Ms. Neal falsified her logs. It did not appear from the record that the motion in limine included questions directed to or testimony elicited from Ms. Neal. Given that Werner did not seek preclusion of such testimony, the Brophys’ counsel did not violate the court’s order in his questioning of Ms. Neal.
Questioning expert witness about Werner’s safety record and accident history: The Court concluded the question by the Brophys’ counsel caused no prejudice. The Court stated the Brophys were correct that counsel phrased the question broadly as an inquiry into what information the expert considered, Werner objected promptly, the court sustained the objection and counsel moved on.
Testimony concerning future medical and attendant care expenses: The decision to admit or reject expert testimony is entrusted to the sound discretion of the district court. The ultimate issue was whether the district court’s decision was reasonable. The district court ruled that the witness would be allowed to testify that he relied on medical reports, records and consultations in preparing his report and as to the opinions he reached about the care needed in the future. The district court precluded the witness from testifying concerning the contents of the medical reports and statements made to him by the neurologist. From the evidence presented, the jury could have inferred with a reasonable probability that Mr. Brophy’s injuries were permanent and he would likely need care for the rest of his life.
Excessive verdict: When there is substantial evidence to support an award, the Court does not disturb the findings made by the fact finder unless the award is so excessive and unreasonable as to indicate passion or prejudice on the part of the jury. From the evidence presented, the jury was capable of inferring that Mr. Brophy experienced considerable pain, suffering, loss of enjoyment of life and inability to be the human being he was before the injury. The Court could not say the award was so excessive and unreasonable as to indicate passion or prejudice on the part of the jury.

Conclusion: The question of fault was a factual one for the jury to decide. The evidence was sufficient to support the jury’s verdict. Because Werner did not seek preclusion of testimony elicited from Ms. Neal, the Brophy’s attorney did not violate the court’s order in its questioning of her. From the evidence presented, the jury could have inferred with a reasonable probability that the injuries were permanent and that care would likely be necessary for the remainder of his life. The award was not so excessive or unreasonable as to indicate passion or prejudice on the part of the jury.

Affirmed.

J. Kite delivered the decision.

Link: http://tinyurl.com/ykherv6 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 131

Summary of Decision issued October 30, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Gose v. City of Douglas, WY

Citation: 2009 WY 131

Docket Number: S-09-0133

Order of Summary Affirmance

The matter came before the Court upon its own motion following a review of cases recently recommended to the Court’s expedited docket. After the Court’s review, it concluded that the “Brief of Appellants” should be stricken from the files due to Appellant’s repeated use of disrespectful language against the district court, the Supreme Court and others. Therefore, the Court concluded that the district court’s “Order Granting Defendant’s Converted Motion for Summary Judgment be summarily affirmed.

C.J. Voigt delivered the decision.

Link: http://tinyurl.com/yb3zm85 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]

Summary 2009 WY 130

Summary of Decision issued October 23, 2009

Summaries are prepared by Law Librarians and are not official statements of the Wyoming Supreme Court.

Case Name: Cummings v. State

Citation: 2009 WY 130

Docket Number: S-08-0218

Appeal from the District Court of Crook County, the Honorable John R. Perry, Judge.

Representing Petitioner Cummings: Julie Nye Tiedeken of McKellar, Tiedeken & Scoggin, LLC, Cheyenne, Wyoming.

Representing Respondent State: Bruce A. Salzburg, Wyoming Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; and Leda M. Pojman, Senior Assistant Attorney General.

Facts/Discussion: The case arose out of a motor vehicle accident that resulted in the death of Mary North. A Crook County Circuit Court found Cummings guilty of the traffic offense of improper passing for his role in the accident. Cummings was ordered to pay restitution, which included damages for wrongful death. Cummings appealed the propriety of the wrongful death restitution award to the district court. The district court vacated the award due in part to insufficient proof and remanded to the circuit court for further fact-finding proceedings. On remand, the circuit court again awarded restitution. In the following appeal, the district court upheld the order of restitution but sua sponte reduced the amount awarded.
The Court’s focus was on the initial appellate decision issued by the district court. It determined the State had not produced adequate evidence to support the ordered amount of restitution for lost earnings. The district court then remanded the case to the circuit court for a new determination of the amount of restitution to be charged against Cummings. The Court stated the law in Wyoming concerning restitution is clear cut. The amount fixed by a sentencing court should be supported by evidence sufficient to afford a reasonable basis for estimating the victim’s loss. The State bears the burden and when it fails, is not allowed a second chance. In light of this existing law, the initial remand by the district court was erroneous.

Conclusion: The proceedings should have ended when the district court vacated the challenged portion of the restitution order pertaining to the lost earnings of Mary North. The Court vacated the results of all proceedings occurring after the district court’s initial appellate decision.

Remanded.

J. Golden delivered the decision.

Link: http://tinyurl.com/yg6mfj9 .

[SPECIAL NOTE: This opinion uses the "Universal Citation." It was given an "official" citation when it was issued. You should use this citation whenever you cite the opinion, with a P.3d parallel citation. Please note when you look at the opinion that all of the paragraphs are numbered. When you pinpoint cite to a quote, you should cite to this paragraph number rather than to any page number. If you need assistance in putting together a citation using the Universal Citation form, please contact the Wyoming State Law Library.]