Summary 2005 WY 164

Summary of Decision issued December 28, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions 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 from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

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

Case Name: Marshall, Jr. v. State

Citation: 2005 WY 164

Docket Number: 04-156

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

Representing Appellant (Defendant): Tonya A. Morse, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Dee Morgan, Senior Assistant Attorney General. Argument by Ms. Morgan.

Date of Decision: December 28, 2005

Issues: Whether the prosecution’s solicitation of testimony as to the guilty pleas of the co-conspirators or his use of the guilty pleas in argument was plain error that effectively denied Appellant his right to a trial on the merits. Whether judicial bias deprived the Appellant of his constitutional right to a fair trial. Whether ineffective assistance of counsel denied Appellant his constitutional right to a fair trial. Whether prosecutorial misconduct denied Appellant his constitutional right to a fair trial.

Holdings: At trial, Appellant waived the issue of the testimony regarding witnesses’ guilty pleas when he elicited information concerning plea agreements with the State during cross-examination. The Court therefore did not address the issue further.
Appellant’s judicial bias argument was not supported factually or legally. The Court’s review of the record revealed no evidence that the trial judge was biased against Appellant. The Court found no merit in this claim.
The Court reviews claims of ineffective counsel in light of all the circumstances to determine whether trial counsel’s acts or omissions were outside the wide range of professionally competent assistance. The Court agreed with the trial court’s decision to exclude expert testimony based on the expert’s lack of qualifications. The Court noted that Appellant did not identify with specificity the comments upon which counsel was remiss in not objecting and he failed to provide any legal analysis supporting his ineffectiveness claim.
Appellant’s assertions regarding prosecutorial misconduct required him to demonstrate plain error. The Court reviewed the statements of the prosecutor and determined they were a legitimate argument as to what inferences the jury should or should not draw from the evidence produced at trial, and what evidence and other factors the jury should weigh, in evaluating the credibility of the witnesses. Also, Appellant failed to present a cogent argument with citation to pertinent legal authority explaining what rule of law the challenged comments violated in a clear and obvious way. Nor did he provide any analysis as to how he was materially prejudiced by those comments.

The district court's judgment is affirmed.

J. Golden delivered the opinion for the court.

Link to the case: http://tinyurl.com/9v6ky .

Summary 2005 WY 163

Summary of Decision issued December 22, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions 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 from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Meyers v. State

Citation: 2005 WY 163

Docket Number: 04-223

Appeal from the District Court of Carbon County, Honorable Kenneth Stebner, Judge

Representing Appellant (Defendant): Ken Koski, Public Defender; Donna D. Domonkos, Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; Georgia Tibbets, Senior Assistant Attorney General; Matthew D. Obrecht, Student Intern.

Date of Decision: December 22, 2005

Issues: Whether double jeopardy prohibited the district court from entering a judgment and sentence against Appellant for voluntary manslaughter. Whether the district court abused its discretion when it allowed the victim to present to the court a written and oral victim impact statement.

Holdings: Claims alleging violations of a constitutional right are reviewed under the Court’s de novo standard of review. The double jeopardy provisions of both the U.S. Constitution and the Wyoming Constitution provide an accused three protections: 1) protection against a second prosecution for the same offense following an acquittal; 2) protection against a second prosecution for the same offense after a conviction; and 3) protection against multiple punishments for the same offense. Appellant failed to establish a violation of any of the protections. He urged an adoption of a rule of law, which would bar prosecution of a defendant following a trial where the jury is deadlocked on one count, but has reached a decision on the other count, where the count which has been decided and the retrial on the deadlocked count would merely result in a conviction for merged sentences. The district court denied Appellant’s motion to dismiss and the Court found no error in that decision. The Court stated that the Appellant waived all nonjurisdictional defenses when he entered a plea of nolo contendere.
Sentencing decisions are reviewed under the abuse of discretion standard. Because Appellant failed to object during sentencing, the review was limited to a search for plain error. Appellant relies on Wyo. Stat. Ann. § 7-21-102(a) which relates to notice which a district attorney must provide to a crime victim of his opportunity to make a victim impact statement for inclusion in the presentence report. It does not limit a victim’s right to also make an oral statement at sentencing. Wyo. Stat. Ann. § 7-2-103 appears to limit a crime victim to either the submission of a written statement for inclusion in the presentence report or an oral statement to the court. But, it also specifies that any failure to comply will not create a cause for appeal or reduction of sentence. A review of the record revealed that the district court focused primarily on Appellant’s extensive criminal record and the dangerous situation he created by his behavior. Nothing in the district court’s pronouncement supports Appellant’s contention that the court was unduly influenced by the victim’s statements. The Court found no prejudicial error in the sentencing process or abuse of discretion in the sentence imposed.

The district court's judgment is affirmed.

J. Burke delivered the opinion for the court.

Link to the case: http://tinyurl.com/9gxdt .

Summary 2005 WY 162

Summary of Decision issued December 21, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions 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 from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Farmer v. State

Citation: 2005 WY 162

Docket Number: 04-188

Appeal from the District Court of Natrona County, Honorable Scott W. Skavdahl, Judge

Representing Appellant (Defendant): Kenneth Koski, Public Defender; Donna D. Domonkos, Appellate Counsel; and Tina N. Kerin, Senior Assistant Appellate Counsel.

Representing Appellee (Plaintiff): Patrick J. Crank, Attorney General; Paul S. Rehurek, Deputy Attorney General; D. Michael Pauling, Senior Assistant Attorney General; James Michael Causey, Assistant Attorney General.

Date of Decision: December 21, 2005

Issues: Whether the trial court erred in admitting the prior testimony of a witness, John Biddix, because the witness was not legally unavailable or Appellant was denied his rights under the confrontation clause due to ineffective assistance of counsel in the first trial. Whether the trial court erred in denying that certain jury instructions be given. Whether prosecutorial misconduct deprived Appellant of his constitutional right to a fair trial.

Holdings: The admissibility of prior testimony as an evidentiary ruling is in the sound discretion of the trial court. The Court will generally accede to the trial court’s determination of the admissibility of evidence unless the court clearly abused its discretion. The burden is on the defendant to establish such abuse. Prior testimony may be properly admitted if: (1) the witness is unavailable; (2) the former testimony was given by the witness while he was testifying under oath; and (3) the party against whom the testimony was offered had the opportunity and a similar motive to develop the testimony by direct, cross, or redirect examination at the time of the former testimony. The existence of active arrest warrants and the difficulty in obtaining a current address for the witness led the district court to properly conclude that the witness was unavailable for testimony.
Appellant’s complaints concerning defense counsel’s performance at the first trial do not establish ineffective assistance of counsel. Prior testimony is admissible when given under oath, when given while defendant was represented by counsel, when defendant’s counsel could and did cross-examine, and when cross-examination at trial would not touch upon any new or significantly material line of inquiry. The Court found that the prior testimony of the witness met the four part test and found no abuse of discretion.
The district court rejection of three proposed jury instructions did not constitute fundamental error. Jury instructions must be considered as a whole and the search is confined to prejudicial error. The Court’s review of the record supports the evidentiary findings of the district court.
The Appellant bears the burden of proving prejudice. The propriety of the closing argument is measured in the context of the entire argument and compared with the evidence produced at trial. Appellant did not object to the State’s closing argument at trial, so review is limited to the plain error standard. Upon examination of the statements challenged by Appellant, the Court found that the prosecutor did not reference his own beliefs nor specifically comment upon the credibility of witnesses. Placed in proper context, the prosecutor’s statements are properly viewed as comments upon the evidence. The Court found no error.

The district court's judgment is affirmed.

J. Burke delivered the opinion for the court.

Link to the case: http://tinyurl.com/afcka .

Summary 2005 WY 161

Summary of Decision issued December 21, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions 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 from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

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

Case Name: Montoya v. Montoya

Citation: 2005 WY 161

Docket Number: 05-65

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

Representing Appellant (Defendant): Carol K. Watson, of Phelan Law Offices, Cheyenne, Wyoming.

Representing Appellee (Plaintiff): Jakob Z. Norman, of Williams, Porter, Day & Neville, PC, Casper, Wyoming.

Date of Decision: December 21, 2005

Issues: Whether the Court should refuse to consider Appellant’s contentions because he failed to provide a statement of issues pursuant to W.R.A.P. 7.01(d). Whether the appeal should be dismissed because Appellant failed to provide a settled and approved statement of the evidence in violation of W.R.A.P. 3.03. Whether the district court abused its discretion in its disposition of marital assets. Whether reasonable attorney’s fees should be assessed against Appellant pursuant to W.R.A.P. 10.05.

Holdings: The district court’s disposition of marital property is reviewed under an abuse of discretion standard. Despite Appellant’s failure to provide the required statement of issues, it was obvious to the Court that his sole claim of error concerned the distribution of the marital property. The Court determined that Appellee had adequate notice of the issue and so declined to dismiss for failure to comply with W.R.A.P. 7.01(d). Appellant failed to provide a transcript of the proceedings or a statement of the evidence pursuant to W.R.A.P. 3.03 so that a proper evaluation of the trial court’s decision could be conducted. Appellant urged the Court to adopt “[a] change in the law, providing that when a judge has a hearing resulting in a Decree of Divorce for the parties, he must supply either a Statement of Facts or a Decision Letter.” The Court did not consider the argument because Appellant did not supply cogent argument or pertinent legal authority. Absent the transcript or statement of the evidence, the Court presumed the district court had reasonable evidentiary basis for its decision. Based upon the record, the Court did not find an abuse of discretion by the district court.
The Court certified there was no reasonable cause for appeal. Therefore sanctions were available. Appellee’s counsel was requested to submit a statement of costs and attorney’s fees to the Court for review. After review, an order will be entered for an appropriate award of costs and fees to Appellee.

The decision of the district court was affirmed.

J. Burke delivered the opinion for the court.

Link to the case: http://tinyurl.com/anjey .

Summary 2005 WY 160

Summary of Decision issued December 15, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions 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 from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

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

Case Name: In the Matter of the Worker’s Compensation Claim of: Decker v. State, ex rel., Wyoming Medical Commission & Wyoming Worker’s Safety and Compensation Division

Citation: 2005 WY 160

Docket Number: 05-38

Appeal from the District Court of Laramie County, Honorable E. James Burke, Judge

Representing Appellant (Petitioner): Bill G. Hibbler, Cheyenne, Wyoming.

Representing Appellee (Respondent): Patrick J. Crank, Wyoming Attorney General; John W. Renneisen, Deputy Attorney General; Steven R. Czoschke, Senior Assistant Attorney General; Kristi M. Radosevich, Assistant Attorney General.

Date of Decision: December 15, 2005

Issues: Whether the Medical Commission order is supported by substantial evidence. Whether the Medical Commission order is contrary to law. Whether Appellant’s claim of thoracic outlet syndrome was unrelated to a compensable injury diagnosed and reported as bilateral wrist tendinitis.

Holdings: A worker’s compensation claimant has the burden of proving every essential element of his claim by a preponderance of the evidence. The scope of review is governed by Wyo. Stat. Ann. § 16-3-114(c). In appeals where both parties to a contested case submit evidence, appellate review of the evidence is limited to application of the substantial evidence test. The Court affirms the hearing examiner’s findings of fact if they are supported by substantial evidence. Even if sufficient evidence supports the administrative decision under the substantial evidence test, the Court applies the arbitrary-and-capricious standard as a “safety net” to catch other agency action that may have violated the Wyoming Administrative Procedures Act.

The Court found that the Medical Commission’s findings of facts failed to provide the Court with a rational basis for review. They therefore declined to address Appellant’s substantial evidence arguments. The Court has held that a hearing examiner must make findings of basic facts upon all of the material issues in the proceeding and upon which its ultimate findings of fact or conclusions are based. Unless that is done there is no rational basis for judicial review. The order does not contain an indication that the Medical Commission considered and weighed all material evidence offered by the parties. The Medical Commission decision stated concerns with inconsistent physical findings but does not specify the inconsistent physical findings which they found material. Without that specificity, the Court cannot evaluate the reasonableness of the Commission’s assertions. Because the Medical Commission’s order fails to make findings that adequately explain the rationale for the Commission’s decision, the order must be vacated.
On appeal, Appellant states that the Medical Commission recognized that the position being advanced by Appellant was that he sustained the aggravation over a substantial period of time. Because Appellant has settled on this position, the Commission’s revised order should analyze Appellant’s claim under the heightened burden of proof as required by Wyo. Ann. Stat. § 27-14-603. If Appellant’s condition is congenital, ie preexisting, then it will not be a compensable injury unless he can prove that his employment materially aggravated his condition. The claimant is required to prove by a preponderance of all the evidence that the work activities were a significant factor in the worsening of the preexisting condition.
The second compensable injury rule is not at issue in this case. Appellant was not claiming a new or different injury from his original injury. The Medical Commission must determine after weighing the evidence whether Appellant’s wrist pain presentation was anything more than a symptom of the syndrome.

The decision of the district court was reversed and remanded with directions to vacate the order denying benefits. The district court is to remand the case for supplemental findings of fact or other proceedings consistent with the opinion.

J. Golden delivered the opinion for the court.

Summary 2005 WY 159

Summary of Decision issued December 15, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions 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 from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

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

Case Name: Cotton v. McCulloh

Citation: 2005 WY 159

Docket Number: 05-60

Appeal from the District Court of Sheridan County, Honorable John C. Brackley, Judge

Representing Appellant (Petitioner): C. John Cotton of Cotton Law Office, Gillette, Wyoming; and Stephen H. Kline of Kline Law Office, PC, Cheyenne, Wyoming. Argument by Mr. Kline.

Representing Appellee (Respondent): R. Michael Vang of Brown & Hiser, LLC, Laramie, Wyoming.

Date of Decision: December 15, 2005

Issues: Whether the fee dispute committee and the district court failed to make necessary findings regarding mediation and GAL expenses, and regarding effect of Appellee’s agreement to pay fees. Whether credit should be afforded for $6,148.59 in mediation and initial GAL expenses paid at the request and the benefit of Appellee. Whether the court awarded fees in February 1999, or did the parties treat the funds awarded by the court as fees modifying the initial cap, including the fees now at issue. Whether Appellee’s claims are barred by principles of contract, laches and estoppel. Whether the fee dispute committee abused its discretion by the manner in which it entered a judgment in the fee dispute arbitration hearing.

Holdings: The Court considered the proper standard of review to apply to decisions from the fee dispute committee. They looked to the language of the Wyoming Rules for Resolution of Fee Disputes. The Court treated the fee dispute committee as an administrative agency for the purposes of appeal which recognized the importance of the committee’s function in resolving factual issues involved in fee disputes. They scrutinized the committee’s decision in the present case in accordance with the procedures for judicial review of administrative decisions as set forth in W.R.A.P. 12.01 et. seq. and § 16-3-114(c). They reviewed the committee’s conclusions of law de novo.
According to Fee Dispute Rule 11(c), the attorney is responsible for carrying the burden of proof by a preponderance of the evidence. The fee dispute committee used Appellant’s billing statements to fashion its decision. The Court reviewed the record and stated they could not fault the committee for using Appellant’s billing statements as the basis for determining the amounts due to him.
The Court reviewed the record and determined that substantial evidence supported the committee’s determination that the district court did not order Mr. Drake to pay a specific attorney’s fees award to Appellee. The district court’s order very clearly stated the interim distribution was not an award of attorney’s fees and that Appellee was free to use funds in any manner she wished. In addition, there was substantial evidence in the record to support the fee dispute committee’s decision that the fee cap was applicable to the divorce and initial appeal and that the parties’ conduct did not modify the terms of the representation agreement.
Each ultimate fact or conclusion must be thoroughly explained in order for a court to determine upon what basis the ultimate fact or conclusion was reached. The Court reviewed the record and found the committee had carefully reviewed the evidence and detailed its reasoning in extensive findings of fact and conclusions of law which were incorporated into the resolution order. The Court found no error in the procedure the committee used to articulate its decision.

The decision of the district court was affirmed.

J. Kite delivered the opinion for the court.

Summary 2005 WY 158

Summary of Decision issued December 13, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions 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 from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Boykin v. Carbon County Board of Commissioners; Silver Spur Land and Cattle, LLC; Merrill; Switzer; and Vyvey.

Citation: 2005 WY 158

Docket Number: 05-83

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

Representing Appellant (Petitioner): William L. Hiser of Brown & Hiser, LLC, Laramie, Wyoming.

Representing Appellees (Respondents): Thomas A. Thompson, Carbon County Attorney Civil Deputy, Rawlins, Wyoming; John A. MacPherson of MacPherson, Kelly & Thompson, LLC, Rawlins, Wyoming. Argument by Mr. MacPherson.

Date of Decision: December 13, 2005

Issues: Whether there is substantial evidence in the record supporting the Carbon County Commissioner’s finding that County Road 648 was established under W.S. § 24-1-101 and the common law doctrine of adverse possession or prescription. Whether the rights to use a road acquired by a governmental entity under the common law doctrine of adverse possession or prescription are limited to the road’s historical use.

Holdings: The standard of review of an appeal of a Board decision is governed by the Wyoming Administrative Procedure Act. The Court considers the case as though it came directly to them from the Board. Appellant and Appellees presented evidence at the hearing so the review of the factual findings is limited to determining whether they were supported by substantial evidence.
The county presented evidence to rebut the presumption that use of the road was permissive, including testimony from the county road and bridge superintendent, neighboring landowners, other county road and bridge department employees, a former member of the school board, and Appellant’s mother. The Court concluded the county met its burden of rebutting the presumption that use of the road was permissive and established that its claim was hostile and adverse to Appellant’s claim of ownership in a clear and unequivocal way. Appellees did not rely upon the presumption of adverse and hostile use so it was not required to present evidence of “exclusive use” of the easement as suggested by Appellant.
Establishment of the road as a county road did not constitute an impermissible expansion of the historic adverse use that was the basis for the prescriptive claim. The Court has not applied the restrictive use principle to claims of adverse possession or prescription brought by public entities under § 24-1-101. The Court agreed with the district court’s reasoning that use of a public highway right-of-way cannot be limited to historical uses as may be the case for private claimants of particular prescriptive easements. The imposition of such restrictions on public roads or portions of public roads would defeat the very concept of a public road system.

The decision of the district court was affirmed.

J. Kite delivered the opinion for the court.

Summary 2005 WY 157

Summary of Decision issued December 8, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions 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 from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Welty; Welty’s Inc., Welty’s General Store; & Welty’s General Merchants v. Brady (Bankruptcy Trustee for Johanna Welty)

Citation: 2005 WY 157

Docket Number: 05-73

Appeal from the District Court of Teton County, Honorable Nancy Guthrie, Judge

Representing Appellants (Defendants): Joe M. Teig and Paula A. Fleck of Holland & Hart, LLP, Jackson, Wyoming. Argument by Mr. Teig.

Representing Appellee (Plaintiff): Robert M. Shively and Amy M. Taheri of Shively, Taheri & Rochelle, PC, Casper, Wyoming. Argument by Mr. Shively.

Date of Decision: December 8, 2005

Issues: Whether the district court erred as a matter of law when it refused to vacate an arbitration award based on newly-discovered evidence that the award was procured by fraud. Whether the district court erred as a matter of law when it refused to vacate an arbitration award based on the mistakes of fact and law committed by the arbitration panel.

Holdings: Wyo. Stat. Ann. § 1-36-114 articulates the statutory bases for vacation of an arbitration award. In addition, the scope of judicial review of arbitration awards is very narrow. An award may be vacated if the appellant shows by clear and convincing evidence that the award was obtained by fraud, corruption, behavior beyond the bounds of natural justice, excess of authority, or a manifest mistake of fact or law appearing upon the face of the award. The Court reviewed the record without deference to the views of the trial court. Statements in the district court’s record showed they did consider the supplemental evidence and concluded Appellants had not met their evidentiary burden. The Court found that the district court properly denied Appellant’s motion to vacate the arbitration award on the basis of fraud.
Appellant’s claims of mistake of fact and law concern the weight and sufficiency of the evidence to support the arbitration award. The Court favors arbitration or other forms of alternative dispute resolution. The arbitration panel considered the elements of promissory estoppel in its decision. The panel concluded that Appellee had satisfied the elements consisting of (1) the existence of a clear and definite promise; (2) proof that the promisee acted to its detriment in reasonable reliance on the promise; and (3) a finding that injustice can be avoided only if the court enforces the promise. Appellant’s claims do not reach the level required to overturn an arbitration award. The Court deferred to the arbitrator’s right to consider the relevant equities of the parties and fashion an award. Appellants submitted the issue of the Welty’s Inc. responsibility to the arbitration panel. The Court has stated in other cases that the parties’ agreement defines the arbitrators’ authority. The Court concluded that the arbitration panel was within its authority when it considered the corporation’s responsibility for the loan and Appellant waived that argument by failing to submit it to the arbitration panel.
The final mistake of fact and law concerned Appellee’s failure to file a timely claim upon the estate after the death of Frank Welty, Jr. The Court noted that at the time of the death, Appellee did not have a claim against Frank Jr. because she did not yet know that her loans to the Appellants would not be repaid.

The decision was affirmed.

J. Kite delivered the opinion for the court.

Summary 2005 WY 156

Summary of Decision issued December 5, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions 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 from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]


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

Case Name: Mueller, Daley v. Zimmer, Crittenden
Mueller, Daley v. Star Valley Ranch Ass’n & Board of Directors, Cox and Cox, Ohman & Brandstetter

Citation: 2005 WY 156

Docket Number: 05-9 & 05-10

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

Representing Appellants (Plaintiffs): Robert J. Logan, Thayne, Wyoming.

Representing Appellees (Defendants): John R. Hursh of Central Wyoming Law Associates, P.C., Riverton, Wyoming for Appellees Zimmer and Crittenden; William K. Rounsborg of White and Steele, P.C., Denver, Colorado for Appellees Star Valley Ranch Association and Star Valley Ranch Association Board of Directors; and Donald F. Carey of Quane Smith, LLP, Idaho Falls, Idaho, for Appellees Cox and Cox, Ohman & Brandstetter.

Date of Decision: December 5, 2005

Issues: Whether the Court lacked subject matter jurisdiction. Whether the district court issued an appealable order because it’s ruling on Cox’s motion for summary judgment did not resolve all issues between Cox and Appellants. Whether the District Court properly granted Appellees’ Motion for Summary Judgment with respect to Appellants’ derivative claims concerning alleged salary overpayments to Crittenden and Zimmer when Appellants failed to come forward with competent and admissible evidence or identified any legal authority to allow Appellants to challenge the actions of the Board. Whether the hiring of Crittenden and Zimmer as general managers without a personal services contract was an ultra vires act. Consideration of the fraud, negligent misrepresentation, and conflict of interest claims against Cox and Cox, Ohman & Brandstetter. Whether the district court’s summary judgment on the declaratory judgment regarding the amendment of the Association’s bylaws should stand.

Holdings: The standard of review for appeals from a summary judgment depends upon the correctness of the dual findings that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. When summary judgment motions are deemed denied by the lapse of 90 days from their filing, the district court does not lose jurisdiction because the denial of a summary judgment motion is not a final appealable order. Cox contended that the district court did not issue an appealable order for summary judgment because the judgment did not resolve all the issues between him and Appellants. All indications in the record are that the motion for summary judgment was the dismissal of all claims against Cox in their entirety. The district court order on Cox’s motion for summary judgment was a final, appealable order, and the Court has jurisdiction over the appeal.
Appellant’s allegation of fraud was not pleaded with particularity. There were no facts to support their claim. Whether or not Zimmer’s claim for overtime had merit or not is irrelevant to whether the mutual release he signed with the Board was valid. A contract made in settlement of claims is valid even if the claims settled are of doubtful worth. The business judgment rule is a standard of judicial review for director conduct. It presumes that business decisions are made by disinterested and independent directors on an informed basis and with a good faith belief that the decision will serve the best interests of the corporation. To overcome the business rule presumption, the shareholder plaintiff has the heavy burden of alleging and proving facts. Appellants have not alleged facts sufficient to rebut the presumption of the business judgment rule.
Appellant’s ultra vires claims against Zimmer and Crittenden were barred under subsection (a) of the Wyo. Stat. Ann. § 17-19-304 because Zimmer and Crittenden had completed their service as general managers. Ultra vires will not justify the reopening of a completely executed transaction.
The record does not contain any evidence to support a claim of fraud against Cox. The Court could not locate evidence to support an allegation that Cox failed to exercise reasonable care or competence in obtaining or communicating the information regarding Zimmer’s overtime claim to the Board. Wyo. Stat. Ann. § 17-19-831 prevents a corporate director of a nonprofit corporation from engaging in activity with the corporation in which the director has a direct or indirect interest unless certain specific procedures are followed by the governing board. The Court agreed with the district court conclusion that Cox was not doing business with the Association, but incurring expenses while furthering the Association’s business in his capacity as a director so the statute and bylaw were not applicable.
The district court determined that since a quorum was present and the amendment to the bylaws, increasing the number of directors from five to seven, received two-thirds of the votes present at the meeting, the amendment was effective under Art XI, Section 1, of the Association bylaws. The Court reviewed the record and agreed with the Association and the district court. The copy of the bylaws in the record contains a footnote that the bylaw was amended on June 24, 1995 which is the date of the disputed election. Without a cogent argument as to why this reference is not sufficient notice of the amendment under the Association’s bylaws, the Court stated they would not consider the matter further.
Pursuant to Wyo. Stat. Ann. § 17-9-630(d) relating to derivative suits, the Court, at the request of Cox and the Association, remanded to the district court for determination of attorney fees, costs and expenses because Appellants’ arguments were characterized by the failure to provide evidence in support of their allegations and by the repeated presentation of contentions that were not cogent or supported by citation to any relevant legal authority. Appellants were required to pay all of the defendants’ reasonable expenses, including counsel fees incurred in defending the claim that the employment of Zimmer and Crittenden were ultra vires.

The district court's summary judgments on Appellants’ derivative and declaratory judgment claims are affirmed. The cases were remanded to district court for a determination of costs and fees owed to defendants by Appellants for their frivolous and bad faith claims in their derivative action.

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

Summary 2005 WY 155

Summary of Decision issued December 2, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions 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 from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance.]

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

Case Name: Tarraferro v. State, ex rel., Wyoming Medical Commission & Wyoming Worker’s Safety and Compensation Division

Citation: 2005 WY 155

Docket Number: 05-53

Appeal from the District Court of Laramie County, Honorable E. James Burke, Judge

Representing Appellant (Petitioner): Bill G. Hibbler, Cheyenne, Wyoming.

Representing Appellee (Respondent): Patrick J. Crank, Attorney General; Steve Czoschke, Senior Assistant Attorney General; and J.C. DeMers, Special Assistant Attorney General. Argument by Mr. DeMers.

Date of Decision: December 2, 2005

Issues: Whether Appellant was aggrieved or adversely affected by the Commission’s decision. Whether the Medical Commission’s decision was based on competent evidence.

Holdings: Review of administrative hearings is limited to a determination of factors as specified in Wyo. Stat. Ann. § 16-3-114(c). In appeals where both parties submit evidence at the administrative hearing, appellate review is limited to the application of the substantial evidence test. The Court reviews the entire record when making its ultimate determination on appeal. All parties agreed that the sole issue at the hearing was whether the employee claimant’s use of Marinol was necessary and reasonable.
Appellant had received benefits for 22 months of the Marinol prescription (for pain management) when the Commission determined that they would pay for the immediate prescription but any future benefits in this regard would be denied. The Court reasoned that issuing conclusions such as those at issue in the instant case, the Division and the Commission could introduce delay in the final resolution of worker’s compensation claims for years at a time. The Court considered the issues because otherwise it would operate as a hardship to the claimant as well as similarly situated future claimants.
The essence of the Medical Commission’s findings was that Marinol was not reasonable and necessary, was contraindicated in Appellant’s case, and that it was experimental. The Commission relied upon the PDR and Medline®. The Appellant was not given notice of that independent research. The Court reviewed the evidence properly of record and found it supported only one conclusion: That Marinol was a reasonable and necessary, non-experimental treatment for Appellant’s pain.

The order of the district court affirming the Medical Commission’s decision was reversed and remanded to the Commission with directions that it void its decision to deny Appellant his prescription and enter an order to the opposite effect.

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

Summary 2005 WY 154

Summary of Decision issued December 1, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions 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 from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]


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

Case Name: Cathcart v. State Farm Ins. Co.

Citation: 2005 WY 154

Docket Number: 05-43

Appeal from the District Court of Converse County, Honorable John C. Brooks, Judge

Representing Appellant (Plaintiff): Terry W. Mackey of Moriarty, Gooch, Badaruddin & Booke, LLC, Cheyenne, Wyoming; Todd H. Hambrick and Stephanie A. Hambrick of Krampner, Fuller & Hambrick, Casper, Wyoming; Shawna M. Geiger of Shawna Mackey-Geiger, P.C., Greenwood Village, Colorado. Argument by Mr. Mackey.

Representing Appellee (Defendant): Julie Nye Tiedeken of Tiedeken & Scoggin, Cheyenne, Wyoming.

Date of Decision: December 1, 2005

Issues: Whether the trial court correctly granted Appellee summary judgment on Appellant’s breach of contract claim for the reason that there was no material issue of fact to be decided by the trier of fact. Whether the trial court properly allowed evidence of the motor vehicle accident which gave rise to Appellant’s claim for breach of the duty of good faith and fair dealing to be admitted into evidence during trial. Whether the trial court properly allowed the jury to hear about the factors considered by State Farm in its evaluation including witness statements of marijuana use by Appellant. Whether the trial court properly allowed the jurors to submit questions to be asked of witnesses pursuant to Rule 39.4 of the Wyoming Rules of Civil Procedure. Whether the court correctly instructed the jury on the law.

Holdings: Summary judgment orders are reviewed with the perspective most favorable to the party opposing the motion and give that party the benefit of all favorable inferences which may be drawn fairly from the record. Admissibility of evidence and alleged error regarding juror questions are reviewed with an abuse of discretion standard. The review of claimed error with respect to jury instructions is controlled by W.R.C.P. 51(b).
In this case, the record did not contain a transcript of the summary judgment hearing nor a decision letter setting forth the district court’s ruling. As a result, the Court did not know the basis for the district court’s decision to grant summary judgment on the breach of contract claim. The Court agreed with Appellee that the policy language was clear and unambiguous and therefore limited their inquiry to the four corners of the document and interpreted it with the ordinary and usual meaning of its terms. Appellee complied with the requirements of the policy provision for uninsured motorist. The district court properly granted summary judgment on the breach of contract claim. Review of the scheduling order and the course of events leading up to the summary judgment by the district court led the Court to state they were hard pressed to find error, particularly where the summary judgment at issue involves interpretation of clear contract language and little in the way of factual dispute.
Appellant’s claim for breach of good faith and fair dealing must be established by showing the existence of a contract, a breach and damages.

The decision was affirmed.

J. Kite delivered the opinion for the court.

Summary 2005 WY 153

Summary of Decision issued December 1, 2005

[SPECIAL NOTE: These opinions use the "Universal Citation." They were given "official" citations when they were issued. You should use these citations whenever you cite these opinions, with a P.3d parallel citation. You will also note when you look at the opinions 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 from this, or any future opinion using the Universal Citation form, please contact the Wyoming State Law Library and we will provide any needed assistance]

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

Case Name: Cundy and Sundance v. Range Telephone Coop, Inc.
Sundance and Cundy v. Union Telephone Co.

Citation: 2005 WY 153

Docket Number: 04-218; 04-220

Appeal from the District Court of Crook County, Honorable Gary P. Hartman, Judge

Representing Appellant (Defendant): Cecil A. Cundy of Sundance, Wyoming.

Representing Appellees (Plaintiffs): Bruce S. Asay of Cheyenne, Wyoming for Range Telephone Cooperative, Inc.; and Paul J. Drew of Gillette, Wyoming for Union Telephone Company.

Date of Decision: December 1, 2005

Issues: The issues in these two interrelated cases are very similar. Case 04-218: Whether Range Telephone had a right-of-way for ingress and egress to maintain the facilities – including microwave facilities, located atop Sundance Mountain in Crook County, Wyoming. Case 04-220: Whether Cundy may assert the Statute of Frauds to defeat the validity of Union Telephone’s lease. Whether there is any evidence to support Cundy’s affirmative claim that Union Telephone’s predecessors were without authority to transfer Union Telephone’s leasehold property. Whether the trial court properly granted partial summary judgment in favor of Union Telephone.

Holdings: Case 04-218: This case is an appeal of a summary judgment in favor of Range’s motion. Range, by two different and separate chains of authority, had purchased right-of-way to access its deeded property located on Sundance Mountain. Wyoming courts have stated in unequivocal terms that the owner of an easement has the absolute right to occupy and use the easement and is entitled to injunctive relief to prevent interference by the landowner. A plain reading of the transfer documents indicates that the Grantors passed to Grantees and their successors in interest or assigns the right of ingress and egress.
Summary judgment is granted on the finding that there is no genuine issue as to any material fact and that the prevailing party is entitled to judgment as a matter of law. The record is examined from the vantage point most favorable to that party who opposed the motion, affording that party the benefit of all favorable inferences that fairly may be drawn from the record. The construction of reservations in deeds are to be narrowly and strictly construed against the grantor and in favor of the grantee. The district court properly concluded that the lease and its concomitant authorization for Range to use the right-of-way conveyed for the limited purposes associated with that lease was efficacious and is affirmed. The district court also noted that Range had a second right-of-way through acquisitions of rights-of-way held by its predecessors in interest which permitted Range access. Implicit in the district court’s findings is that Range’s use of the second right-of-way does not create a significant additional burden to that right-of-way and the interest Cundy has in it. Trust instruments are to be construed as authorizing all acts within the use contemplated to effectuate the object of the creator of the trust. Changes in circumstances may give rise to an assumption that the settler of the trust would allow the trustee to adjust his conduct to those changes. The Court stated that circumstances in the field of telecommunications have changed dramatically and it is not a leap of logic or sound judgment to conclude that an extension of telephone services is related to the distribution of television.
All the parties in the instant case had complete notice of all claims and were afforded a full opportunity to develop and litigate the issues the district court ultimately decided. The district court determined that Range did have access to the right-of-way which Cundy had blocked. The Court reviewed the record and held that Range did state a cause of action upon which relief could be granted. Summary judgment in favor of Range was affirmed.
Case 04-220: The issues in the Union Telephone case were identical to those of Range and in light of the condition of the pleadings and proceedings in the case, the Court affirmed the district court’s order in its totality.

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