Summary 2008 WY 53

Summary of Decision issued May 9, 2008

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

Case Name: PBS Enterprises, Inc. v. CWCapital Asset Management LLC

Citation: 2008 WY 53

Docket Number: S-07-0024; S-07-0251

Appeal from the District Court of Park County, the Honorable Dan Spangler, Judge.

Representing Appellant (Defendant): Timothy Charles Kingston, Graves, Miller & Kingston, PC, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Colin MacKenzie Simpson, Burg, Simpson, Eldredge, Hersh & Jardine, PC, Cody, Wyoming.

Facts/Discussion: PBS appealed the district court’s entry of summary judgment in favor of CWC. They also challenged the confirmation of the foreclosure sale which took place while the first appeal was pending. PBS owned and operated two hotels, one in Cody and another in Norfolk, Nebraska. CWC held PBS’s promissory note secured by the “Norfolk” mortgage. They also held promissory notes secured by two “Cody” mortgages on the Cody property. The Cody mortgages included cross-default provisions such that a default under the Norfolk mortgage was also a default under the Cody mortgage.
Default: It was undisputed that PBS defaulted on the Norfolk mortgage. PBS did not contest CWC’s foreclosure on that mortgage in Nebraska state court. Regardless of whether the parties agreed to change the payment schedule under the Cody mortgages, PBS’s default under the Norfolk mortgage also put it in default under the Cody mortgages. In the “Pre-Negotiation Agreement”, PBS conceded there were no modifications to the written agreement and confirmed that the written documents continued to define their legal and enforceable obligations.
Negligent or Intentional Misrepresentation: PBS complained that CWC misrepresented amounts due under the Cody mortgages. The Court’s review of the record showed that the Cody mortgage assigned the duty to provide the correct and accurate pay off amount to PBS, not CWC. Because PBS failed to establish that CWC had any duty to provide it with figures for the amount owed under the Cody mortgages, PBS could not sustain its intentional or negligent misrepresentation claims against CWC.
Confirmation of Foreclosure Sale: While PBS’s initial appeal was pending before the Court, CWC proceeded with the foreclosure sale. It then filed a motion asking the district court to confirm the foreclosure sale and enter a deficiency judgment against PBS. The district court retained the right and power to enforce its decree that CWC was entitled to foreclose against PBS even though that decision had been appealed. PBS did not seek to stay the district court’s order. Absent the stay, the district court did not exceed its authority to enforce the judgment.

Holding: The district court properly granted summary judgment to CWC in its foreclosure action against PBS and properly granted summary judgment against PBS’s counterclaims. The district court also had jurisdiction to confirm the foreclosure sale.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/5aydoj .

[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 2008 WY 52

Summary of Decision issued May 8, 2008

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

Case Name: Dax v. State

Citation: 2008 WY 52

Docket Number: S-08-0004

Order Affirming Judgment and Sentence of District Court

Dax failed to file a pro se brief within the time allotted by the Court therefore the District Court’s Judgment and Sentence were affirmed.

Link: http://tinyurl.com/56zar6 .

[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 2008 WY 52

Summary of Decision issued May 8, 2008

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

Case Name: Dax v. State

Citation: 2008 WY 52

Docket Number: S-08-0004

Order Affirming Judgment and Sentence of District Court

Dax failed to file a pro se brief within the time allotted by the Court therefore the District Court’s Judgment and Sentence were affirmed.

Link: http://tinyurl.com/56zar6 .

[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 2008 WY 51

Summary of Decision issued May 2, 2008

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

Case Name: Wagner v. State

Citation: 2008 WY 51

Docket Number: S-07-0104

Appeal from the District Court of Goshen County, the Honorable Keith G. Kautz, Judge.

Representing Appellant (Defendant): Diane Lozano, State Public Defender; Tina N. Kerin, Appellate Counsel; and David E. Westling, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Bruce A. Salzburg, Attorney General; Terry L. Armitage, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Eric Johnson, Faculty Director, Prosecution Assistance Program; Brian Hunter, Student Director; Clarissa Collier, Student Intern.

Facts/Discussion: After being arrested for driving under the influence of alcohol, Wagner filed a motion to suppress claiming that the arresting officer did not have reasonable suspicion to justify the investigatory stop.
The Court focused their attention on the investigatory stop which requires only the presence of specific and articulable facts and rational inferences which give rise to a reasonable suspicion that a person has committed or may be committing a crime. Regardless of whether or not the officer articulated that she had knowledge of Wagner’s suspended license, it was undisputed that it was indeed suspended. The officer had reasonable suspicion to believe that Wagner was driving while under the influence of alcohol based on the officer’s conversation with an identified citizen-informant, the look on Wagner’s face when he was stopped by the officer and that the officer saw Wagner stumble, hold onto a gate in order to maintain his balance and that he was very unsteady on his feet. Taken together, the information provided helped form the basis for a reasonable suspicion that criminal activity was afoot.

Holding: The totality of the circumstances in the instant case established that the officer had reasonable suspicion to believe that Wagner was not only driving under the influence but also driving on a suspended license. The investigatory stop was justified.

Affirmed.

J. Hill delivered the decision.

Link: http://tinyurl.com/5m62sh .

[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.]

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Summary 2008 WY 50

Summary of Decision issued April 30, 2008

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

Case Name: In re CW and CW

Citation: 2008 WY 50

Docket Number: S-07-0157; S-07-0158

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

Representing Appellants (Petitioners): John A. Thomas, Evanston, Wyoming.

Representing Appellee (Respondent): Farrah L. Spencer, Harris Law Firm, PC, Evanston, Wyoming.

Guardian Ad Litem: Geoffrey James Phillips, Phillips Law, PC, Evanston, Wyoming.

Facts/Discussion: Mother and Father are the biological parents of CW1 and CW2. Mother and Father never married. In 2002, Mother married Husband. In these two consolidated appeals, Mother and Husband challenge the district court’s denial of their petition to adopt the two children and Mother challenges the district court’s denial of her petition to terminate Father’s parental rights.
Father had never been ordered to make any child support payments. The district court stated that because of the absence of a defined child support obligation and the duty of the court to strictly construe the statutes against terminating a non-consenting parent’s rights, the adoption could not be granted. The court also found it was impossible for Father to bring the child support current because it was impossible to state the amount of the obligation. Mother and Husband relied on In re Adoption of GAR. The legislature amended the statutes after GAR was decided in 1991 adding that an adoption may be granted over the objection of a parent if that parent has failed to bring the support obligation current within 60 days. In the instant case, Father asked the court to establish child support payments in his petition to establish paternity. The Court reaffirmed that every parent has a duty to contribute to the support of their child with or without a court order. Under the circumstances of the instant case, the Court would not disturb the ruling that Father had not willfully failed to make child support payments or to bring them current.
The Court noted that the statute provides that the adoption of a child may be ordered without the written consent of the parent. Even if the district court had concluded that one or more of the statutory factors had been met, it was still not required to order the adoption if it found other valid grounds for denying it. The district court’s decision letter showed that it carefully weighed the conflicting evidence about the best interests of the children in making their decision.
The Court has previously held that the adoption statutes control over the more general provisions found in the paternity statutes. Because the district court denied the adoption, its further decision to deny Mother’s petition to terminate Father’s parental rights worked no prejudice against Mother.

Holding: The Court would not disturb the ruling that Father had not willfully failed to make child support payments or to bring them current. Because the district court denied the adoption, its further decision to deny Mother’s petition to terminate Father’s parental rights worked no prejudice against Mother.

Affirmed.

J. Burke delivered the decision.

Link: http://tinyurl.com/648frk .

[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 2008 WY 49

Summary of Decision issued April 22, 2008

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

Case Name: Stone v. Devon Energy Production Co., LP

Citation: 2008 WY 49

Docket Number: S-07-0166

Appeal from the District Court of Johnson County, the Honorable John G. Fenn, Judge.

Representing Appellant (Plaintiffs): Steven R. Winship of Winship & Winship, PC, Casper, Wyoming.

Representing Appellee (Defendants): Scott P. Klosterman of Williams, Porter, Day & Neville, PC, Casper, Wyoming.

Facts/Discussion: Stone and Loundagin owned operating rights under a state oil and gas lease which they assigned to Devon Energy Production Co. and Carpenter & Sons, Inc. After Devon and Carpenter failed to offer to reassign the operating rights to them six months before the lease expiration date, Stone and Loundagin filed a complaint asserting that Devon and Carpenter breached the assignment contract and should be ejected from the leasehold. In addition they pleaded trespass and conversion and sought an accounting and injunctive relief. The district court granted partial summary judgment for Devon and Carpenter on the breach of contract claim concluding that the lease had not expired and the reassignment obligation was never triggered.
Neither the parties nor the Court found cases involving a reassignment clause like the one at issue. The clauses are almost exclusively found in the oil and gas arena and many require a reassignment offer only in the event that the assignee intends to let the lease expire. Many also require the assignor to respond to an offer of reassignment within a specified time period or lose the right to reassignment. In the instant case, all parties agreed that the intent of the reassignment clause was to avoid the loss of the lease. The Court held that the reassignment clause required Devon and Carpenter to make an offer to reassign the operating rights to Stone and Loundagin before October 2, 2001. Considering the language of the clause in the context in which it was written and looking to the surrounding circumstances, the subject matter, and the purpose of the agreement, it was clear the parties intended the term “expiration” to mean the expiration date of the lease that was contained within the lease itself. The interpretation was consistent with the underlying purpose of reassignment clauses generally which is to protect assignors against the loss of their overriding royalty interest prior to the end of the primary term. The Court found it significant that the clause these parties drafted and agreed to, did not contain language to the effect that a reassignment offer was required if the assignee desired to surrender the lease. The omission of language that appeared to be standard in oil and gas reassignment clauses suggested that rather than being dependent on the assignee’s intent, the parties intended the reassignment offer to be made on a date certain – prior to six months before the expiration of the lease or October 2, 2001.
In the instant case, the lease never terminated and thus, Stone and Loundigan incurred no damages. They continued to receive the timely payment of all overriding royalties due under the lease.

Holding: The Court held that the reassignment clause required Devon and Carpenter to make an offer to reassign the operating rights to Stone and Loundagin on or before October 2, 2001. The Court affirmed the partial summary judgment order because under the particular circumstances, no contract damages could be proven.

The partial summary judgment on breach of contract was affirmed and the matter was remanded for consideration of the remaining claims.

J. Kite delivered the decision.

J. Golden dissented stating that the supplemental agreement at issue required Devon and Carpenter to offer reassignment of all pertinent acquired rights under the lease to SEI not later than 6 months prior to the expiration of each such lease. J. Golden agreed that the intent of the parties in including the reassignment clause was to prevent the lease from expiring without giving SEI the opportunity to save it. Devon and Carpenter must allow SEI an opportunity to save the lease when they know their actions will not be enough to do so. By focusing on the practical, as versus the theoretical “expiration” of the lease, J. Golden believed the reassignment provision imposed such a requirement. He would have upheld the grant of summary judgment to Devon and Carpenter.

Link: http://tinyurl.com/6cj2jm .

[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.]